McCormick v. Hickey
| Decision Date | 18 January 1887 |
| Citation | 24 Mo.App. 362 |
| Parties | J. H. MCCORMICK, Respondent, v. S. M. HICKEY, Appellant. |
| Court | Missouri Court of Appeals |
APPEAL from the St. Louis Circuit Court, SHEPARD BARCLAY, Judge.
Affirmed.
JOHN R. CHRISTIAN, with JOHN JOHNSTON, for the appellant: It being shown and so decided by the court that Hickey was insane, the testimony of McCormick was clearly incompetent. This is certainly true as to his explanation of the receipt. Angell v. Hester, 64 Mo. 142; Ring v. Jamison, 66 Mo. 424. The only possible way for the defendant to be held on the draft is by ratification, and the acceptance on a separate paper; in which event the plaintiff must prove that he bought the draft in the faith of such acceptance, and that this suit was commenced within five years from the date of the acceptance. Rev. Stat., sect. 534; Menefee v. Arnold, 51 Mo. 536; Carr v. Thompson, 67 Mo. 472.F. A. WIND, for the respondent: When an agent draws a bill upon his principal, by his authority, and for money or property obtained and used in his business, the drawer and drawee may be treated as in fact the same party, and held without demand or notice. Daniel on Negotiable Instruments, sects. 128, 129, 482 and cases cited; 1 Parsons on Notes and Bills, 63, 288; Story on Bills of Exchange, sect. 35; Story on Promissory Notes, p. 19, sect. 16; Bank v. Evans, 36 Texas, 592; Raymond v. Mann, 45 Texas, 301. The plaintiff was a competent witness. He was not one of the “original parties to the contract.” Rev. Stat., sect. 4010, and cases cited; Meier v. Thiemann, 15 Mo. App. 310.
This action was brought before a justice of the peace upon a draft drawn by W. Hickey upon Hickey & Bartlett, a partnership firm of which the defendant was a member, and assigned by the drawees to the plaintiff for value. On trial anew in the circuit court the plaintiff had a verdict and judgment, from which the defendant appeals.
I. At the trial the plaintiff was permitted to amend his statement so as to set up the transaction which resulted in the drawing of the draft. This ruling is objected to on the ground that the only statement before the justice being the draft, and this being a nullity, there was nothing to amend. There is nothing in the objection. The draft drawn by an agent on his principal in the course of business of the principal is tantamount to the promissory note of the principal, and the jury have found in answer to a special interrogatory that this draft was so drawn, and their verdict is supported by substantial evidence. McClellan v. Reynolds, 49 Mo. 312; Smith v. Alexander, 31 Mo. 193.
II. There is nothing in the objection, that the amendment does not state a good cause of action, which requires any observation.
III. It is objected that the court erred in permitting the plaintiff to testify, on the ground that the defendant was shown by the evidence to be insane, which fact, it is argued, rendered the plaintiff incompetent under the statute. The statute admits parties to testify in their own behalf, but with the following proviso: “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 behalf.” Rev. Stat., sect. 4010. We are clear that the defendant was not shown to be insane, within the meaning of this statute, by the evidence that was adduced for that purpose in this case. This evidence consisted of the testimony of his family physician, to the effect that the defendant had a growth on the base of the cranium, which had been there for several years, and was growing worse all the time; that it had now caused paralysis of one side; that any excitement would aggravate the disease; that to offer him as a witness in court might cause his immediate death; that under any excitement his memory or statements could not be depended upon; but that at home, surrounded by his family, he could converse intelligently enough. Upon this evidence being given, the court at first ruled that the plaintiff could testify only as to the fact of the assignment of the draft to him, and then permitted him to testify to another matter. The fact that the defendant may have a lesion of the brain which would render it imprudent for him to appear and undergo, in the character of a witness, the tension and excitement of a cross-examination, does not, we take it, disqualify the other party as a witness. If the rule were so, any party defendant, who is too ill from any cause to appear in court and testify as a witness in his own behalf, would be insane in the sense of the statute, and it would come to this, that the serious illness of a party would disqualify the opposite party as a witness. It does not appear from the testimony of the defendant's family physician that his condition was such as to render it impossible, if necessary to his defence of the action, to take his deposition at his residence; and if his statements were not to be relied on under excitement, that would be a matter affecting his credibility and a subject of observation to the jury. A man whose memory is not so far impaired by a disease of the brain as to prevent him from conversing intelligently when surrounded by his family, can, we take it, furnish to his counsel such information as is necessary to his defence on an ordinary suit on a bill of exchange, and give a deposition on any point material to his defence, if they shall deem it necessary. We, therefore, hold that the court committed no error in allowing the plaintiff to testify.
It is proper to observe that if the insanity of the defendant had been properly established, the plaintiff would have been disqualified as a witness under the recent decision of the supreme court, notwithstanding he was not both a party to the suit and a party to the original transaction--that court having changed position upon this question since the decision in Looker v. Davis (47 Mo. 140), and having, in a recent manuscript opinion which is before us, taken the ground that it is sufficient that the witness is a party to the suit to disqualify him under the statute, although he may not have been a party to the original contract. Meier v. Thiemann, 90 Mo. ___. This decision reverses the decision of this court in Meier v. Thieman (15 Mo. App. 307).
IV. The court admitted, against the objection of the defendant, a letter written by Hickey & Bartlett, on whom the draft was drawn, by W. Hickey, to the Cairo Coal Company, in whose favor the draft was drawn, dated May 18, 1875, which was five days after the draft, saying: This was objected to, but the grounds of the objection were not stated. For this reason alone the objection is not available here
V. Another objection is that the court erred in admitting in...
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