McClure v. Clement

• Decision Date: 22 January 1912
• Parties: JAMES W. McCLURE, Respondent, v. THOMAS B. CLEMENT, Appellant
• Court: Kansas Court of Appeals

143 S.W. 82

161 Mo.App. 23

JAMES W. McCLURE, Respondent, v. THOMAS B. CLEMENT, Appellant

Court of Appeals of Missouri, Kansas City

January 22, 1912

Appeal from Jackson Circuit Court.--Hon. Thos. J. Seehorn, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

T. B Wallace and Boyle & Howell for appellant.

Joseph S. Rust for respondent.

OPINION

ELLISON, J.

Plaintiff is a real estate agent and his action is to recover a commission for the sale of real estate belonging to defendant. He had judgment in the circuit court.

It appears that defendant owned a farm in Pettis county of 800 acres, and a house in Sedalia in the same county, and that one Reuben Mastin owned a large farm in Jackson county containing over 1400 acres, and each wanted to sell. Plaintiff lived in Sedalia and claimed to represent defendant, while J. H. Lipscomb, a real estate agent, resided in Kansas City and represented Mastin. Mastin sold his farm to defendant, taking the latter's farm and Sedalia house in part payment. Lipscomb demanded a commission of Mastin which the latter refused to pay. A suit followed in which Lipscomb recovered a judgment for $ 3594.45, which was affirmed in this court, (Lipscomb v. Mastin, 142 Mo.App. 228, 125 S.W. 1177). After that suit was finally determined plaintiff instituted this action.

The evidence establishes that plaintiff and Lipscomb were under an agreement with each other that they should share equally in the commissions to be charged to Mastin and defendant, and there was evidence tending to show that this defendant knew of this arrangement. The evidence also establishes that Lipscomb has paid plaintiff one-half the commission which he collected from Mastin, less one-half the expenses, including the suit; and that plaintiff is to pay Lipscomb one-half of what he may recover in this action, less one-half the expense of litigation in obtaining it. The evidence further disclosed that defendant is a very old man and that most of the negotiations of plaintiff and Lipscomb were with one Mahan, defendant's son-in-law and agent. It was further shown that defendant is now insane.

In this state of facts and of the record Lipscomb, over the objection of defendant, was permitted to testify in behalf of the plaintiff. We think he was not a competent witness. We do not put his incompetency on the ground that he was interested in the result of the cause of action, for the common-law disability by reason of interest is removed by the statute. Sec. 6354, R. S. 1909. The ground of his disability is that defendant is insane. While a witness who is interested when the other party is dead or insane, is, in fact, for most purposes incompetent, the incompetency arises from death or insanity of the other party and not from interest of the witness. The importance of this distinction is shown by the fact that for some purposes the interested witness is competent under the statute. [Weiermueller v Scullin, 203 Mo. 466, 101 S.W. 1088; Jackson v. Smith, 139 Mo.App. 691, 123 S.W. 1026.] It is therefore urged by plaintiff that since Lipscomb's interest did not disqualify him, and since he is not a party to the suit or, as is claimed, to the cause of action, he is a competent witness. We agree he is not a party to the suit, but whether he is a party to the contract we will speak of further on.

It was held by the Supreme Court in construing the statute in Looker v. Davis, 47 Mo. 140, that to render a witness incompetent he must have been, not only a party to the original contract in issue, but also a party to the record in the suit. The same ruling was made in Kenyon v. Peirce, 17 R.I. 794, 24 A. 825; Chamberlin v. Chamberlin, 4 Allen 184; Bigelow v. Heyer, 3 Allen 243; Granger v. Bassett, 98 Mass. 462; Wright v. Gilbert, 51 Md. 146, 156. Some of those decisions contain clear statements of the reason for such construction of the statute, and cite Looker v. Davis with other authorities. We find that Looker v. Davis has been affirmed in Klostermann v. Loos, 58 Mo. 290, 294, and State ex rel. v. Huff, 63 Mo. 288; and that the necessity of being a party is recognized in Chapman v. Dougherty, 87 Mo. 617, 626. When those cases were decided, our statute was like the statutes in the states where the other decisions were rendered. But our statute was materially amended by the Laws of 1887, page 287, carried into each revision down to the present one of 1909. Before the amendment the proviso read: "Provided, that in actions where one of the original parties to the contract or cause of action in issue and on trial is dead, or is shown to the court to be insane, the other party shall not be admitted to testify in his own favor." The peculiar wording will be noticed; the party dead or insane is described as one that must have been a party to the contract or cause of action, but the other, is simply denominated "the other party," without describing him. As is said in Kenyon v. Pierce, supra, the words, the other party, "may mean the other party to the proceeding, or the other original party to the contract or cause of action, who is also a party to the proceedings." So the Supreme Court of Massachusetts in Chamberlin v. Chamberlin, supra, said, that the statute "established the general rule that parties should be admitted to testify in their own behalf. To this rule, it annexed the exception, among others, in the form of a proviso, that, when one of the original parties to the contract or cause of action in issue and on trial is dead, the other party shall not be admitted to testify in his own favor. What party? Clearly the party to the record, who was living, and who, but for this exception, would be a competent witness under the general rule declared by the previous part of the same section. The exception was intended to apply only to cases where one of the parties to a contract or cause of action has died, and the other party to it is living and also a party to the record. Its sole design was to exclude the testimony of such party. Beyond this, it has no application. In the cases which have arisen under this proviso the party excluded was not only a party to the cause of action or contract in issue, and on trial, but was also a party to the record." As already said, these cases properly reasoned out the meaning of the expression, "the other party," to be the other party to the contract who is also a party to the record in the action. The Legislature doubtless seeing that different views could be taken of the statute in that form, amended it so that it now reads, "the other party to such contract or cause of action," thus naming and identifying "the other party" and ending conjecture.

We have not overlooked that Meier v. Thieman, 90 Mo. 433, 2 S.W. 435, a case arising before the amendment, without noticing Looker v. Davis, ruled that a party to the contract or cause of action with the deceased was an incompetent witness, though not a party to the suit, and that the words "the other party" did not refer to the party to the suit but "to the party to the contract;" leaving out of view, that though the words do refer to the other party to the contract such other party must also have been a party to the suit in order to have been incompetent as a witness before the amendment. This ruling was made in a case where the witness was not only not a party to the suit but was not a party to the contract or cause of action. The real...