McCune v. Daniels

• Decision Date: 03 November 1920
• Docket Number: No. 15987.,15987.
• Citation: 225 S.W. 1020
• Parties: McCUNE v. DANIELS et al.
• Court: Missouri Court of Appeals

225 S.W. 1020

McCUNE v. DANIELS et al.

No. 15987.

St. Louis Court of Appeals. Missouri.

November 3, 1920.

Appeal from Circuit Court, Audrain County; Ernest S. Gantt, Judge.

"Not to be officially published."

Replevin by Oke McCune against William McPike Daniels and another, as executor and executrix of the estate of James G. McCune, deceased. Plaintiff recovered, and, from a judgment granting defendants' motion for a new trial, plaintiff appeals. Affirmed and remanded.

E. A. Shannon, of Mexico, Mo., and Pearson & Pearson, of Louisiana, Mo., for appellant.

R. D. Rodgers, of Mexico, Mo., and Abbott, Fauntleroy, Cullen & Edwards, of St. Louis, for respondents.

NIPPER, C.

This is an action of replevin brought by plaintiff to recover the possession of a promissory note for $2,500, which he alleges is wrongfully detained by the defendants, executor and executrix of the estate of James G. McCune, deceased. Plaintiff recovered in the court below, and the court sustained defendants' motion for new trial on account of error in the admission of certain testimony and in the giving of instructions for the plaintiff. From this action of the trial court in granting defendants a new trial, plaintiff appeals.

Plaintiff is a son of Jeff McCune, and a grandson of C. S. McCune. Plaintiff undertook to establish title in this note in question, claiming that it was a gift from his grandfather, C. S. McCune, who was also the father of James G. McCune, deceased. C. S. McCune died on August 25, 1911. James G. McCune died April 11, 1915. The note in question was dated March 1, 1910, signed by D. B. Barnes, and secured by a deed of trust on 120 acres of farm land. The note was made payable to Oke McCune, and was indorsed on the back, "Oke McCune"; but the testimony shows this indorsement was not placed there by the plaintiff. This suit was instituted in 1916.

Plaintiff, to establish his claim, offered the testimony of his father, Jeff McCune, as the first witness, who was permitted to testify, over the objections of defendants, to a conversation he had with his father, C. S. McCune, in 1909, in the presence of James G. McCune and his mother, Mrs. C. S. McCune. Jeff McCune testified his father at that time stated he was going to pay for one-half of a farm as a gift to plaintiff's sister, Vera. He also stated that during the same conversation James G. McCune said he wanted to pay for one-fourth of the farm. He further testified that in August, 1910, he, had a conversation with his father, at which time his mother and plaintiff were present. At that time the plaintiff complained to C. S. McCune about his having done more for Vera than he had for him, to' which plaintiff's grandfather replied that he had "fixed it and placed it with Jim; you don't need it now." He afterwards saw his brother, James G. McCune (who is frequently referred to as Jim), and told him that his father, C. S. McCune, had stated that he had given him some notes to keep for plaintiff, to which James G. McCune replied, "Yes I have got them," and mentioned this $2,500 note in question and another note. When he asked him why he had not given these notes to plaintiff, he says his brother replied that his father had not told him to give it to him yet. He states that, on the morning of C. S. McCune's death, both he and James G. McCune were present, at which time his father instructed James G. McCune to go to the bank and get plaintiff's note and give it to him, and that James G. McCune replied, "All right."

The court, in its order sustaining the motion for new trial, having stated as one of the reasons therefor error in the admission of this testimony, we shall confine our consideration of this matter to this particular testimony. Day v. Lusk et al. (Sup.) 219 S. W. 597.

Plaintiff undertook to establish the ownership of the note by showing that it was a gift from his grandfather. When it is recognized, as it must be in this case, that the donor, as well as the party with whom he is alleged to have placed the property for delivery, are both dead, then it is very material that no testimony should be admitted which would becloud the issues or in any way mislead the jury.

Appellant contends that the note being made payable to Oke McCune, and the deed of trust reciting that such note belonged to him, established prima facie ownership in plaintiff; but this question is not necessarily before us for consideration, for, if that be a correct principle of law, which we do not here decide, yet that would not cure the error in the admission of incompetent testimony. Statements of C. S. McCune in 1909 as to his gift or intended gift to a sister of plaintiff, which is in no way connected with the note in question, would clearly be incompetent and...