Leighty v. Murr

• Decision Date: 25 May 1916
• Docket Number: No. 1693.,1693.
• Citation: 194 Mo. App. 156,186 S.W. 734
• Parties: LEIGHTY v. MURR et al.
• Court: Missouri Court of Appeals

186 S.W. 734

194 Mo. App. 156

LEIGHTY v. MURR et al.

No. 1693.

Springfield Court of Appeals. Missouri.

May 25, 1916.

Appeal from Circuit Court, Texas County; L. B. Woodside, Judge.

Action by George Leighty against J. J. Murr and another, begun in justice court, and appealed to circuit court. From a judgment for plaintiff, defendants appeal. Affirmed.

Barton & Impey, Hiett & Scott, and Lamar, Lamar & Lamar, all of Houston, for appellants. Geo. T. Meador, of Houston, for respondent.

ROBERTSON, P. J.

I. Defendant appeals from a verdict and judgment based on a destroyed negotiable promissory note. The case originated in the court of a justice of the peace.

Section 7416, R. S. 1909, under the heading, "Justices' Courts — Organization and Procedure," is as follows:

"If any suit or set-off be founded upon any lost or destroyed instrument of writing, the party relying upon such lost or destroyed instrument shall be required upon the trial or hearing of the cause to prove such loss or destruction, either by his own oath or by other competent testimony; and if upon such trial or hearing it shall appear that the same was intentionally put away or destroyed, the demand or set-off founded on such instrument shall be rejected."

This section appears in its present form, under the same heading, in R. S. 1835, p. 351, § 8, and, so far as we can find, it has never been construed or even referred to in any decision of the appellate courts of this state.

The only points involved in this case relate solely to the contested issue as to whether or not plaintiff voluntarily destroyed the note. It is admitted that he destroyed it, but he claims he did so under such threats of criminal prosecution and personal violence on the part of defendant J. J. Murr, the husband of defendant Mattie Murr, as to constitute duress. We refer to him hereafter as defendant.

Plaintiff testified that he called at the home of the defendants, the husband being absent, and left word with the wife that he desired the balance on the note paid. A few days after this he saw the defendant at church one Saturday night and asked if his wife told him of the word he had left. The defendant replied:

"`I don't think I owe you anything. You lied me out of $50 on a span of mules. You insulted my wife. I'll smash you. If you say I owe you anything more I'll mash every rib loose from your backbone; I'll kick every rib loose. If you present that note to me, I'll kick every rib loose from your backbone.' I said: `You owe me that note. I didn't insult your wife at all.' And he said he was going to have me pulled."

Further along plaintiff testified that on the following Monday, at the office of a justice of the peace, in the presence of a number of their neighbors, he made defendant a proposition of arbitration which was refused, and defendant stated he would do nothing unless plaintiff burned the note; that defendant's conduct and appearance was such that he had to burn the note. Numerous other witnesses who were then present testified for plaintiff, and some of them related occurrences similar to those related by plaintiff as taking place at the church and much more favorable to plaintiff than those to which he testified.

The defendant's wife testified that plaintiff came to their home shortly before the above wrangle; that her husband was not at home, and when plaintiff mentioned the note she stated that she thought it had been paid, whereupon plaintiff began abusing her husband, calling him a liar, a thief, a black dog, stating that he was nothing but a lowdown rascal, would not tell the truth, and that she was not a bit better.

The defendant testified that plaintiff came up to him at the church and said: "Jim, did your wife tell you what I said down there while you was gone?" This defendant then said to plaintiff that no gentleman would talk to a lady like he talked to his wife, to which plaintiff replied that he knew he did wrong, but wanted him to pay the note. Defendant replied that he did not owe anything on the note, and that, if he ever talked to his wife again the way he did, he would kick every rib loose from his body. "So several pretty rank words passed there at the church house." Defendant's version of what took place at the office of the justice of the peace is, in substance, that plaintiff asked if he would shake hands with him if plaintiff would destroy the note, and if plaintiff would destroy the note if defendant would sign a contract to not prosecute plaintiff, which offers defendant refused, and then defendant continues:

"He insisted that I sign up a contract if he would destroy the note, and finally asked if he would destroy the note and shut his mouth if I would, and said he didn't want no trouble. I says, `If you think you have done wrong at my house and are sorry, we will quit at that if you want to quit.'"

He says plaintiff then handed the note to one of the bystanders to destroy, who handed it back to plaintiff, of whom defendant testified further as follows:

"He looked around at me and asked again if I would sign a contract I wouldn't have him prosecuted if he would burn it up, and I said I wouldn't sign nothing. He says, `Well, I'll hush if you will hush,' and held the note up in his hands and says, `Here she goes, boys.'"

On cross-examination this defendant says that at the church he drew his fist to hit plaintiff. A witness for plaintiff who was present at the office of the justice of the peace testified that defendant told plaintiff that, if he ever mentioned the note again, he would slap him in the face, and that the defendant then made motions as if he was going to strike him; that defendant said he did not deny the note, but denied it being just and that he said to plaintiff: "You can just burn that note and consider us even and keep your mouth shut, or else I'll give you all the trouble I can." Two other witnesses for plaintiff testified that in answer to plaintiff's proposal to arbitrate defendant replied: "No; you got to burn that note or I'll prosecute you." None of these statements were denied by defendant.

The case was submitted to the jury on the theory that the plaintiff must have acted under duress in destroying the note, and in behalf of defendants it is contended that the testimony did not tend to prove that fact. As we view the case, it is unnecessary to consider the question of legal duress, and therefore we pass that without undertaking to array the facts with a view of deciding that point.

The destruction of an instrument aimed at in the section of the statute relied upon by defendants, and which we have quoted above, is not such a destruction as is involved here. The general rule as to destroying instruments is said to be that:

"A party who will voluntarily and without cause deprive himself of original evidence will not be permitted to use the secondary. The deed being destroyed with mutual consent of parties, and with a view to rescind an unexecuted contract which they learned was illegal, the authorities will amply sustain under such circumstances the introduction of secondary evidence. Riggs v. Taylor (Tayloe), 9 Wheat. 483 ." Skinner v. Henderson, 10 Mo. 205, 206.

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