Lewis v. Oliver

• Decision Date: 10 May 1886
• Citation: 22 Mo.App. 203
• Parties: JAMES W. LEWIS, ADMINISTRATOR OF JOHN O. LOCKHART, Respondent, v. JOHN W. OLIVER, Defendant; MARTIN V. B. OLIVER, Interpleader, Appellant.
• Court: Kansas Court of Appeals

22 Mo.App. 203

JAMES W. LEWIS, ADMINISTRATOR OF JOHN O. LOCKHART, Respondent, v. JOHN W. OLIVER, Defendant; MARTIN V. B. OLIVER, Interpleader, Appellant.

Court of Appeals of Missouri, Kansas City.

May 10, 1886

APPEAL from Lafayette Circuit Court, HON. JOHN P. STROTHER, Judge.

Affirmed.

Statement of case.

This was an action by plaintiff against defendant for a balance due to the plaintiff's intestate upon a contract between him and the defendant.

The defendant in his answer admitted the appointment of plaintiff as administrator, as alleged in the petition; admitted the contract as therein averred; and also admitted that he was indebted on the said contract in the sum charged in the petition.

Further answering the defendant stated as follows:

" Defendant states that he is informed that one Martin V. B. Oliver claims that he is entitled to a part of said sum, and that he had an interest in the proceeds of said contract as the partner of said John O. Lockhart.

Defendant states that he does not know whether the said contract was made for and on behalf of said John O. Lockhart and Martin V B. Oliver jointly, or as partners, but that there is due from him to somebody the said sum claimed on account of said contract for cutting and sawing lumber.

Defendant prays that Martin V. B. Oliver be compelled to interplead," etc.

Martin V. B. Oliver was permitted by the court to interplead. In his interplea he claimed one-half of the amount due from the defendant on the contract in suit. This claim was founded upon an agreement made betwen the interpleader and John O Lockhart, and a contract made by the interpleader, in pursuance of such agreement, with the defendant. And it was charged that the amount in suit was due from the defendant on the contract thus made by the interpleader with the defendant.

The plaintiff answering denied the allegations of the interplea.

The case was tried by the court without the intervention of a jury. No declarations of law were asked or given.

The interpleader was produced as a witness. The court sustained the plaintiff's objection to his giving any testimony whatever in the case, for the reason that John Lockhart was dead. It was then offered to prove by the interpleader that he, for himself and John Lockhart, deceased, made a contract with John Oliver (which was afterwards sanctioned by said Lockhart), by the terms of which the lumber in controversy was to be placed by the interpleader and Lockhart in the log way of John Oliver's mill, to be sawed by John Oliver and then divided between John Oliver on the one part, and the interpleader and Lockhart on the other, in the manner set out in the interplea; and also to prove the contract set out in the interplea. To the evidence thus offered the court sustained the plaintiff's objection, based upon the same ground--that John O. Lockhart was dead.

It was then offered to prove by the interpleader the agreement between the interpleader and Lockhart. The court sustained plaintiff's objection to the evidence offered, for the same reason.

The interpleader then offered to introduce in evidence the inventories and appraisements of the plaintiff, as administrator of the estate of Lockhart, filed in the probate court, in order to prove that there was no such property as that in controversy, or appraised as a part of said estate. The offer was denied on objection by the plaintiff.

The court found the issue, on the interplea in favor of the plaintiff, and the interpleader has appealed to this court.

GRAVES & AULL, for the appellant.

I. The finding of the court is against the evidence and the weight of the evidence. Hacker v. Brown, 81 Mo. 68; Judy v. Bank, 81 Mo. 404.

II. The court erred in excluding interpleader as a witness for any purpose, because Lockhart was dead. If incompetent as to some matters, he was, certainly, not so to all. Bradley v. West, 68 Mo. 69; Martin v Jones, 59 Mo. 181; Wade v. Hardy, 75 Mo. 394.

III. The court erred in excluding the testimony of interpleader in regard to the contract made by him for himself and Lockhart deceased, with John Oliver. Even the adverse party could testify. Nugent v. Curran, 77 Mo. 323; Fulkerson v. Thornton, 68 Mo. 468; Amonett v. Montague, 75 Mo. 43.

IV. The court erred in excluding the inventory and appraisement of Lockhart's estate. Although of a negative character the evidence was admissible.

V. The contract between interpleader and Lockhart was not " the contract in issue and on trial." It is only incidentally involved as it respects original parties. Bradley v. West, 68 Mo. 73.

WALLACE & CHILES, for the respondent.

I. As no instructions were asked or given, there is no point of law on the finding to review. Harrison v. Bartlett, 51 Mo. 170; Harrington v. Minor, 80 Mo. 270.

II. The evidence justified the finding. But this court will not undertake to weigh the evidence. Easley v. Elliott, 43 Mo. 289; Wilson v. Railroad, 46 Mo. 36. Even in chancery cases, where there is conflicting evidence, this court will defer to the finding of the trial judge. Erskine v. Loewenstein, 82 Mo. 309.

III. According to the evidence offered by interpleader, it makes out no cause of action in his favor against John W. Oliver, nor any ground for his recovery in this case. If he has any claim at all it is his share of the net profits of the enterprise, for which his only remedy is a demand against the estate of Lockhart.

IV. The exclusion of the inventory and appraisement was proper. Such documents neither prove nor disprove title to property or claims.

V. The interpleader was not a competent witness in the case. As Lockhart was not alive to give his version of the agreement the law closes the lips of...