Matthews v. Coalter

• Decision Date: 31 January 1846
• Parties: MATTHEWS v. COALTER.
• Court: Missouri Supreme Court

9 Mo. 705

MATTHEWS

v.COALTER.

Supreme Court of Missouri.

January Term, 1846.

APPEAL FROM RANDOLPH CIRCUIT COURT.

TODD, for Appellant. The appellant insists upon the reversal of the judgment below, upon the following points: 1st. The onus probandi, lies upon the defendant pleading an erasure in his agreement sued upon after signature, to prove it, for the presumption of law is, that such erasure was made before signing, and being an alteration only, made by a stranger, does not avoid it. 2nd. That the declaration of persons in possession of the writing sued on, made out of the presence of the party to be charged, is no part of the res gestae, is hearsay, and illegal evidence. 3rd. That all testimony given by witnesses hearing others read a writing, without inspection themselves, is not competent evidence to prove what the instrument contained, and what erasure was in it. 4th. That the positive evidence of the witness, Estis, who wrote the instrument, that he made the erasure before signing, and at the time of writing, with the other circumstantial evidence, and that witness not impeached in credit, is such conclusive evidence in favor of the validity of the writing, as to show the verdict is clearly against the weight of evidence, and that they were influenced by prejudice, and led away by the illegal instructions of the court. 5th. That a party has a right to release a security for costs, by giving other competent security in his place, so as to obtain his testimony; the execution of such a bond need not be proved, unless required by the opposite party. 6th. The deposition of a witness de bene esse, cannot be read by a party, unless he proves the inability of the witness to attend, or his residence beyond sixty miles of the place of trial; for this reason Halley's deposition should have been rejected.

CLARK, for Appellee. The counsel for the appellee makes the following points and relies upon the following authorities to sustain the opinion of the Circuit Court: 1st. It is clear that the article of agreement set out in the bill of exceptions, is the basis of the plaintiff's right of action, and that the obligation of the defendant to pay the plaintiff anything, was created by that agreement, and nothing else. 2nd. That the contract of the parties being in writing, we must look to that alone for their will, and the extent of their respective obligations; and if the instrument of writing containing the contract was altered in any material particular, subsequent to its execution, by erasure, or otherwise, without the consent of the defendant, such alteration rendered the same void as against the party not consenting to such change; this is decided in the case of Briggs and Briggs v. Glenn & Bryant, 7 Mo. R. 572.3rd. The Circuit Court must be its own judge of the proof of the execution of all instruments offered in evidence, and in this case the amount and kind of evidence given of the execution of the bond offered does not appear; it was therefore insufficient, as we are bound to presume. This principle has been often decided by this court. 4th. If the law was correctly ruled by the Circuit Court on the trial, it is very clear the motion for a new trial was properly refused, there being evidence from which a jury might well find for either of the parties.

NAPTON, J.

This was a suit before a justice of the peace of Randolph county, brought by Henry Matthews, against Sterling Coalter, upon the following agreement: “We the undersigned do agree to pay the sum of one dollar for all wolves that is killed by any of said assignors, if the wolf is started in fifteen miles of Green Moore's for twelve months from this date. All persons must sign this subscription within four months. January 29, 1841;” which was signed by said Coalter, and said Matthews, and several others. Immediately after the word ““miles,” appeared written the word “square,” with a black line drawn over it. Matthews obtained a judgment in the justice's court, for eight dollars and costs. Upon an appeal to the Circuit Court, a trial de novo was had, and the result of which was a verdict and a judgment for the defendant, Coalter.

At the trial, the plaintiff who had been previously ruled to give security for costs, desired to use Green Moore, one of the obligors on his bond, as a witness, and for that purpose tendered another bond in lieu of the one then on file; but the court refused to permit this to be done, on the gronnd that the bond tendered was not sufficiently proved. To this exceptions were taken.

It was proved or admitted on the trial, that the plaintiff had killed eight wolves, at a place about thirteen miles from Green Moore's house. It seems that some time in the month of February, 1841, there was what is termed by the witnesses an infair at the house of one Rowland; that several persons on their way to this entertainment, called at the house of Coalter, the father of defendant; that this article for the extermination of wolves became the topic of conversation, and one Estis, who it seems had written the agreement, read it to the company for the purpose of procuring subscribers. Defendant on that occasion, requested Estis to put his name down as a subscriber, and it was accordingly done. Afterwards this wolf article was much discussed at Rowland's, and there also several additional subscribers were procured. Several witnesses swear, that when the article was read at Rowland's, it had the word “square” in it.

Haliburton, a witness for defendant, testified, that sometime in the winter, or spring of 1841, at Centreville, he saw a paper in the possession of Green Moore, said to be a wolf article, to which said Moore was soliciting subscribers; he did not read the article, but heard it read; that it became a question whether the article would include one Lowry who proposed signing it, but that it seemed to be admitted, that it would not, and thereupon he saw some person, he knew not whom, with a pen in hand, and saw the...