Meffert v. Lawson

• Decision Date: 19 July 1921
• Citation: Meffert v. Lawson, 289 Mo. 337, 233 S.W. 31 (Mo. 1921)
• Parties: CHARLES MEFFERT v. MARTIN E. LAWSON, Executor of Last Will of JOSEPH F. MEFFERT, Appellant
• Court: Missouri Supreme Court

233 S.W. 31

289 Mo. 337

CHARLES MEFFERT v. MARTIN E. LAWSON, Executor of Last Will of JOSEPH F. MEFFERT, Appellant

Supreme Court of Missouri, Second Division

July 19, 1921

Appeal from Jackson Circuit Court. -- Hon. O. A. Lucas, Judge.

Reversed and remanded.

Lathrop Morrow, Fox & Moore and George W. Day for appellants.

(1) The evidence should have been confined to the issues: (a) Were the notes altered in the respects asserted by defendant, and (b) did the indorsements upon the back of them, evidence an actual payment thereon? It was error, and highly prejudicial to defendant, to permit plaintiff to show that Dr. Meffert had stated that he owed his brother money on notes, without showing that he referred to the notes in question, and without limiting the effect of the evidence to the one question of alleged alteration. Cox v. Mignery, 126 Mo.App. 669; p. 1281, secs. 200, 201. (2) The alterations were what the law terms "suspicious," and it was incumbent upon plaintiff to explain them. It was also incumbent upon him to show that the indorsements on the two disputed notes, represented actual payments by the maker to the plaintiff, to be credited thereon. In neither of these respects did plaintiff discharge his obligation; therefore the trial court erred in not sustaining the demurrers to the evidence as to these two notes, and in refusing to direct a verdict against them at the close of all the evidence. R. S 1909, secs. 1888, 1909, 1911; Clark v. Powell's Estate, 208 S.W. 31; Cox v. Mingery, 126 Mo.App. 669; Briscoe v. Huff, 75 Mo.App. 288; Elsea v. Pryor, 87 Mo.App. 157; Chapman v. Hogg, 135 Mo.App. 654. (3) It is a partial payment, not the formal credit, that revives a debt barred by the statute, or tolls the running thereof. Clark v. Powell's Estate, 208 S.W. 31; Elsea v. Pryor, 87 Mo.App. 157; Chapman v. Hogg, 135 Mo.App. 654. (4) If the maker or the holder of a promissory note, makes an indorsement of a payment thereon, when it is against his interest so to do, it will be presumed that a payment was actually made and that it was not done merely to save the instrument from the bar of the Statute of Limitations. On the other hand, if it appears from the indorsement that it benefited the party making it, there must be proof that a payment thereon was actually made, for the statute declares that "a payment of any principal or interest" revives the debt or tolls the running of the statute. Plaintiff's evidence tended to show that the indorsements were in the handwriting of the maker, Dr. Meffert. If they were, they were for his benefit, inasmuch as the notes were not then barred, and he was thereby reducing the amount of his obligation. No payment was shown. The notes were barred. R. S. 1909, sec. 1911; Haver v. Schwyhart, 39 Mo.App. 303; Briscoe v. Huff, 75 Mo.App. 288; Crow v. Crow, 124 Mo.App. 120; Brown v. Carson, 132 Mo.App. 371; Smith v. Brinkley, 151 Mo.App. 494; Berryman v. Becker, 173 Mo.App. 346; Wester v. Wester's Estate, 189 S.W. 608. (5) Ratification of unauthorized acts implies knowledge of such acts. If Dr. Meffert wrote the indorsements upon the disputed notes, after the alterations thereof, it should have been further shown, that he knew of the alterations. It was not so shown. State v. Findley, 101 Mo. 368; Bremen Bank v. Umrath, 42 Mo.App. 525; Paul v. Leeper, 98 Mo.App. 515.

Kelly, Buchholz, Kimbrell & O'Donnell for respondent.

(1) The trial court did not err in admitting evidence showing that deceased made statements concerning the notes in question against his interest and concerning the amount of the indebtedness to plaintiff existing by virtue of said notes. (a) The testimony concerning the notes amounted to admissions against interest, and such admissions were competent in an action against the deceased's estate. McLaughlin v. McLaughlin, 16 Mo. 242. (b) The testimony as to the amount of the indebtedness was limited in its effect, by the court declaring to the jury that it was not admitted for the purpose of showing the execution of the notes or the indorsement, or for giving them vitality or effect, but simply for what it was worth with reference to the contention of the defendant that one of the notes was originally for twenty-nine dollars and fifty cents instead of for twenty-nine hundred dollars and fifty cents. These statements were admissions against interest which were competent against the estate of deceased on that issue. 1 Ency. Ev. 571-2. (c) In any event the defendant is estopped to complain of alleged error in the admission of said testimony for the reason that the said defendant introduced in evidence the statement of Mrs. Baker, a sister of deceased, and of Mrs. Meffert, the mother of deceased, concerning the notes and the indebtedness of the deceased to plaintiff, and hence if the admission was erroneous, defendant cannot now complain under the common error doctrine. Thorpe v. Railway, 89 Mo. 650; Aronovitz v. Arky, 219 S.W. 620; White v. Railway, 250 Mo. 476; 2 Ency. Pl. and Pr. 519; Christian v. Ins. Co., 143 Mo. 460; Reilly v. Railway, 94 Mo. 611; Holmes v. Braidwood, 82 Mo. 616; McGonigle v. Daugherty, 71 Mo. 259; Smith v. Culligan, 74 Mo. 388; Davis v. Brown, 67 Mo. 315. (2) The court did not err in refusing to give the peremptory instructions requested by the defendant. (a) When defendant admitted that the deceased executed the notes, the law presumed that the alleged alterations were made at or prior to the time of the execution of the notes, in the absence of a preliminary finding by the trial court that the alleged alterations were suspicious. Matthews v. Coulter, 9 Mo. 411; 1 Greenleaf, Evidence, 564; Lubering v. Kohlbrecher, 22 Mo. 596. (b) The statute required the court to presume, in the absence of evidence to the contrary, that the payments were made at the time they were indorsed and thus changed the rule announced in the decisions cited by appellant. R. S. 1919, sec. 798. (c) When plaintiff introduced evidence showing that the payments were indorsed on the back of the notes by the deceased, and when it was conceded by the appearance of the undisputed $ 200 note, and by the witnesses put on the stand by the defendant that the deceased was slovenly and careless in writing his notes, and occasionally wrote some of them standing on his head, the trial court had no choice in the matter, but was bound to submit the case to the jury, either by a peremptory instruction to find for the plaintiff or by the instructions by which it was submitted. Goddard v. Williamson's Adms., 72 Mo. 131; Gardner v. Earley, 78 Mo.App. 346; Rega v. Williams, 185 Mo. 631; Phillips v. Mahan, 52 Mo. 197; Ray v. McConnell, 179 Mo.App. 400; Smith v. Brinkley, 151 Mo.App. 494. (d) Anna Meffert, the daughter of deceased, and residuary legatee under the will, and hence the real defendant in the case, notwithstanding she was called as a witness on the part of the defendant, did not testify or deny that the alleged alterations and the indorsements of payments were in the handwriting of her deceased father, and for this reason alone the finding against defendant's contention was proper. Keime v. Railway, 254 Mo. 194; 1 Starkey on Ev. p. 54; Moore on Facts, pp. 571, 574, 575; McClanahan v. Railway, 147 Mo.App. 386; Cass Co. v. Green, 66 Mo. 512; Payne v. Railway, 136 Mo. 594; Schooler v. Schooler, 258 Mo. 83. (e) The statute (Sec. 5438, R. S. 1919) authorizes the admission in evidence of any writing proved to the satisfaction of the judge to be genuine and authorizes comparison of such writings with that in dispute by witnesses, and authorizes that such writings and the evidence of witnesses respecting same may be submitted to "the court and jury as evidence of the genuineness or otherwise of the writing in dispute." Several of the writings admitted to be genuine and which the trial court and jury examined are not included in this record by photographic copy or otherwise. The omitted writings were admitted to be genuine. Their comparison with the disputed writing by the jury would have been sufficient alone to sustain a verdict even in a criminal case. State v. Scott, 45 Mo. 302. (3) The complaint against the instructions is that they authorized the jury to find that the bar of the Statute of Limitations applied to the notes, and that it was removed by a mere indorsement of a credit without an actual payment; but the instructions did not authorize the jury to find that if the deceased had merely made an indorsement of a fictitious payment on the notes they must find for the plaintiff, but the said instructions required the jury to find that the credits were indorsed not as fictitious but as payments, and it so prohibited the jury from finding for the plaintiff on each of the notes if they found an alteration of the notes in amount or date without the knowledge of deceased "after the date of said payment, if any." These instructions categorically referred to a payment in fact and not in a fictitious payment. (4) But defendant's instructions numbered 4 and 5 proceeded upon the theory that if the credits were not in the handwriting of the deceased, the finding should be for the defendant and impliedly authorized a finding for plaintiff if the deceased had merely indorsed the credits. That is to say, the trial theory of the defendant was based upon a concession of the fact that there was an actual payment if the deceased had indorsed the credits. Defendant will not now be permitted to change his trial theory. Mitchell v. Railways, 125 Mo.App. 11; Drug Co. v. Bybee, 179 Mo. 354; McDonnell v. Bldg. Assn., 175 Mo. 250; Black v. Ry., 172 Mo. 177; B. & L. Assn. v. Obert, 169 Mo. 507; Heman v. Larkin, 108 Mo.App. 393; Coal Co. v. Watson, 107 Mo.App. 451; Strother v. Dewitt, 98 Mo.App. 293.

OPINION

WALKER, J.

The...