Lohnes v. Baker

• Decision Date: 08 May 1911
• Citation: 137 S.W. 282,156 Mo. App. 397
• Parties: LOHNES v. BAKER.
• Court: Missouri Court of Appeals

137 S.W. 282

156 Mo. App. 397

LOHNES v. BAKER.

Springfield Court of Appeals. Missouri.

May 8, 1911.

1. WITNESSES (§§ 144, 178) — COMPETENCY — PARTIES — STATUTE.

Under Rev. St. 1909, § 6354, providing that, where any executor or administrator is a party, the other party may not testify in his own favor unless the contract in issue was originally made with a person who is living and competent to testify, a brother who claimed a horse as a gift from his deceased sister is incompetent to testify in an action against the sister's executor, and the objection to his competency is not lost because the defendant on cross-examination elicited all of the damaging evidence.

2. EVIDENCE (§ 183) — BEST AND SECONDARY EVIDENCE — PRELIMINARIES TO ADMISSION OF SECONDARY EVIDENCE.

Though the sufficiency of preliminary evidence explaining the nonproduction of writings and the reason for the admission of secondary evidence rests largely in the discretion of the trial court, the testimony of a witness taken in a foreign state by deposition concerning the contents of a letter is not admissible where the only foundation for the secondary evidence was the ambiguous statement of the deponent that, "I have not got the letter now."

3. JURY (§ 4) — VERDICT — CONSTITUTION.

Under Const. art. 2, § 28, providing that in civil cases three-fourths of the jury concurring may render a verdict, and in view of Rev. St. 1909, § 7280, providing that, in civil cases, the jury shall consist of twelve men, and that three-fourths or more of them concurring may render a verdict, three-fourths of a jury composed by agreement of only nine men may return a verdict.

4. TRIAL (§ 418) — DEMURRER OF EVIDENCE — WAIVER.

A defendant by putting in evidence after the overruling of his demurrer to the evidence waives it.

5. GIFTS (§ 4) — "GIFTS INTER VIVOS" — REQUISITES.

To constitute a valid gift inter vivos, there must be both an intention to give and a complete and unconditional delivery to the donee, or to some one for him, of the property.

Appeal from Circuit Court, Oregon County; W. N. Evans, Judge.

Action by L. L. Lohnes against L. J. Baker, as executor of the will of Mary E. Baker, deceased. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

This was an action of replevin to recover a certain horse, harness, and wagon. The action was commenced before a justice of the peace where defendant made default, but appealed to the circuit court. Plaintiff claimed the property in question as a gift from his sister, Mary E. Baker, who had died testate about one year prior to the time this suit was commenced. The defendant was Mary E. Baker's husband, and became executor of her will. By agreement of both parties, the case was tried in the circuit court by a jury of nine men, and a verdict was returned for the plaintiff. The question in issue was whether there had been a gift of the property inter vivos as plaintiff claimed.

Plaintiff's evidence tended to show that about a year before Mary E. Baker's death she sought to find some steady employment for her brother Lucius, plaintiff herein, and to that end opened a furniture store in Thayer, Mo., where all the parties herein resided, and plaintiff was given at least partial control thereof. The sign on the store was "L. J. Baker," Mary E. Baker's husband. He, however, was a railway engineer, was absent much of the time, and it is not shown that he had any control over or interest in this store. Soon thereafter Mary E. Baker bought and paid for the horse in question; the deal being between the seller and Lucius except as to the payment. For many years Lucius had been in her employ, painting and otherwise caring for her many houses in Thayer, and the wagon and horse was used for hauling paints and ladders for this work, besides doing the delivering for the furniture store.

One witness testified that he had a conversation with Mary E. Baker in this furniture store soon before her death, in which she said she had bought the horse and wagon and harness for Lucius; that he had fixed it up; that it was a pretty well-contrived thing for the purpose, and that it was his except when she wanted to use the horse; that she was in charge of the store at that particular time, Lucius having gone out to deliver some goods; that she told him (the witness) before buying the furniture store that she intended to fix Lucius up in some kind of business; and that she left the impression on his mind that she intended to give the business to Lucius if he should do well with it. Another witness, on being asked whether Mary E. Baker had stated to him that she bought the business for her brother, answered that he could not recollect, but that she said "something to that effect." Sue T. Bone stated in her deposition that she had a conversation with Mary E. Baker in regard to this outfit, in which deceased said she was putting in the furniture store and outfit for her brother's benefit, but did not put it in his name on account of his dissipation; that she intended to put it in his name if he proved all right; that she spoke as though she intended he should have full benefit of the horse, etc., if he proved all right.

Plaintiff was allowed to testify over defendant's specific objection that the other party to the contract was dead, and that he was suing the executor of that person's will. He stated that he went to Memphis and purchased the wagon and shipped it to Thayer. On cross-examination he testified that his sister furnished the money; that he overhauled the wagon bed, receiving wages by the day from his sister for this work; that the supplies therefor were charged to her and had been paid by her estate. He was recalled for further cross-examination by defendant, and testified that the horse, harness, and wagon were in Mrs. Baker's barn at the time of her death; that this outfit was kept there from the first as he had no barn, and that her feed was used for this horse; that he lived in one of her houses; that he had the keys to the store in his possession, and in answer to a question he stated, "The horse is mine. She gave it to me." He took care of the horse. Annis Z. Fowler, sister of Mrs. Baker and plaintiff, residing in Rome, N. Y., in her deposition testified: "Q. Did you have any correspondence with Mrs. Baker a short time before her death in which she wrote you about a horse she had just bought, and, if so, have you that letter? A. Yes. I have not got the letter now. Q. In that letter what did she say? Just quote her language. (Defendant objects for the reason that the letter is the best evidence, and its absence is not sufficiently and properly accounted for to entitle plaintiff to prove its contents. Objection overruled, defendant excepted, etc.) A. `I have just bought Lucius (meaning plaintiff) a nice outfit, horse, wagon and harness. It would do you good to see how proud he is of it. He thinks the horse is even nicer than Colonel was, but I can't allow that; but you come and see for yourself.'"

For the defendant, Clark Hall, cashier of a bank at Thayer, testified that a number of times Mrs. Baker had told him she wished to have something for Lucius to do, some work for him to keep him employed. "Q. Did the store or any of them connected with it keep a bank account? A. Mrs. Baker did, but I couldn't say whether deposits she made were from the store or from rents. Mrs. Baker paid the bills of the store and exercised ownership. She said she bought the horse for a delivery horse for the store." Geo. M. Durst testified as to the furniture store as follows: "She said it was going to provide a job for Lucius; that she had to keep him anyhow, and she might as well provide...