Morris v. Freyer

• Citation: 151 S.W.2d 515
• Decision Date: 03 June 1941
• Docket Number: No. 25716.,25716.
• Parties: MORRIS v. FREYER.
• Court: Missouri Court of Appeals

151 S.W.2d 515

MORRIS v. FREYER.

No. 25716.

St. Louis Court of Appeals. Missouri.

June 3, 1941.

Appeal from Circuit Court, Audrain County; W. C. Hughes, Judge.

"Not to be reported in State Reports."

Action on two notes by Marshall Morris, executor of the estate of Jacob Freyer, deceased, again Leslie Freyer. Judgment for plaintiff, and defendant appeals.

Reversed and remanded, with directions to enter judgment for a smaller amount, if plaintiff files a remittitur, and otherwise reversed and remanded for a new trial.

W. W. Botts, of Mexico, for appellant.

Barnes & Barnes, of Mexico, and Don C. Carter, of Sturgeon, for respondent.

McCULLEN, Judge.

This suit was brought by respondent, as plaintiff, against appellant, as defendant, to recover on two promissory notes. A trial before the court and a jury resulted in a verdict and judgment in favor of plaintiff and against defendant in the sum of $1,575.39 on the first count of plaintiff's petition, and $687.86 on the second count thereof. The jury's verdict also allowed an attorney's fee of $68.20 in favor of plaintiff against defendant. Defendant duly appealed.

The first count of plaintiff's petition was based on a promissory note executed by defendant Leslie Freyer, dated June 7, 1930, in the sum of $1,000, payable to the order of Jacob Freyer October 30, 1930, with interest at the rate of five per cent. per annum, to be compounded annually. The second count was based on a promissory note dated February 12, 1927, in the sum of $500, payable to the order of Jacob Freyer on demand, with interest from date at the rate of five per cent. per annum compounded annually. The petition alleged that defendant had paid $200 on said note on December 1, 1929, which was duly credited thereon; and that it was further agreed in said note that, in case it should not be paid at maturity, defendant should pay the expense of collection, including a reasonable attorney's fee.

The answer of defendant admitted the execution of both notes but denied each and every other allegation contained in the petition, and also pleaded payment of both notes.

The reply of plaintiff was a general denial of the allegations of payment.

It was agreed between the parties at the trial in open court that, in the event plaintiff was entitled to recover on the $500 note, the amount allowed plaintiff as attorney's fees thereon should be $68.29; that Jacob Freyer died in Audrain County, Missouri, on January 28, 1938, and at that time was a resident citizen of said county that his will had been duly admitted to probate; that plaintiff had been duly appointed executor of his estate, had qualified and was acting as such executor in the bringing of this suit; and that plaintiff was in possession of the notes sued on.

Plaintiff introduced in evidence, as plaintiff's Exhibits A and B, the two notes sued upon. He also introduced in evidence plaintiff's Exhibit C, an additional inventory filed by him as executor on August 2, 1939, which sets forth no property other than the two notes involved herein. The exhibits mentioned, together with the admissions made by defendant in the record, constituted plaintiff's case in chief.

Defendant took the witness stand to testify, but, upon objection by plaintiff's counsel, the court ruled that while defendant was competent to testify to anything occurring since the appointment of the executor, he was not competent to testify to anything which occurred before that time. The ground of the objection, although not specifically stated, was understood by all parties to be Section 1723, R.S.Mo.1929, Mo.St.Ann. § 1723, p. 3994, which provides, among other things, that where one of the original parties to the cause of action in issue and on trial is dead, the other party shall not be admitted to testify in his own favor. The ruling of the court was conceded by defendant's counsel to be correct, and defendant was withdrawn as a witness, he being an original party to the notes in suit.

Mrs. Leslie Freyer, wife of defendant, testified that she and her husband went to the home of Jacob Freyer, who was defendant's father and the payee named in the notes, sometime during the month of February, 1939, she thought about February 17th; that Jacob Freyer and his son, the defendant herein, were associated in business; that she and her husband kept their private papers in Jacob Freyer's box, at first in the bank of Laddonia and later in the Commercial Bank; that she and her husband had at first kept their notes and papers for a while in their house until Jacob Freyer insisted that they put them in his box; that, prior to the visit in February, 1931, defendant had deposited with his father for safekeeping some United States Bonds.

The evidence shows that along about 1930 and 1931 the banks were failing and defendant and his father were disturbed about the situation. The father lived in the town of Laddonia and defendant, the son, lived on a farm a short distance out from that town. It appears that the bank in which the father had kept his box had closed and he was at the time of the abovementioned visit of Mr. and Mrs. Leslie Freyer keeping his box at his home in Laddonia.

Mrs. Leslie Freyer further testified that, during the visit in February at the home of defendant's father, the box was opened by the father and he took therefrom defendant's bonds and took them into his possession as payment in full of the two notes; that Jacob Freyer looked for the notes involved herein but could not find them; that he promised that as soon as he found the notes he would mark them paid and send them to his son, defendant herein; that thereafter the witness and her husband called at the home of Jacob Freyer and asked for the notes and were told by him that he had not been able to find them. The witness further testified that, at the request of her husband, Jacob Freyer wrote out a statement or receipt showing that he had received the bonds and had accepted them in full payment of the two notes. This statement or receipt, as it was referred to in the evidence, was introduced in evidence as defendant's Exhibit 2. It is as follows:

"Lesly Freyer Bonds 300 1000 Sedeld in full note 1000

"June 7 1930 12 February 500 1927. Two notes paid this day in full 17 Feb. 1931.

                                      "Jacob Freyer."
                

Mrs. Leslie Freyer testified that it was written out by Jacob Freyer and signed in his own handwriting; that she saw him write it on a page of a pocket handbook which Jacob Freyer himself got from a desk in his living room in his home, and that it was handed to Leslie Freyer by Jacob Freyer after he had written therein the statement or receipt shown in defendant's Exhibit 2; that the bonds taken over by Jacob Freyer in payment of the amount of $1,300 due on the two notes were two $500 bonds and one $300 bond, all United States Government Bonds; that it was agreed between the father and the son that the interest due on the bonds was to be used to pay the interest due on the notes.

W. Clyde Blattner, cashier of the First National Bank of Mexico, Missouri, called by plaintiff as a witness in rebuttal, testified that there was no such thing as a $300 United States Government Bond.

Mrs. Pearl Morris, wife of plaintiff and a full sister of defendant Leslie Freyer, testified on behalf of plaintiff that the handwriting appearing on several pages, other than the page which contained defendant's Exhibit 2, of the little pocket handbook was the handwriting of Jacob Freyer, her father, but that the signature to the statement or receipt on the page thereof which constituted defendant's Exhibit 2, purporting to be the signature of Jacob Freyer was not her father's signature.

Charles Freyer, a son of Jacob Freyer and a full brother of defendant Leslie Freyer, testified that he was familiar with the handwriting of his father; that the handwriting on defendant's Exhibit 2 was the handwriting of Jacob Freyer, his father; that some years prior to the trial he had gone to his father's house and found his stepmother searching through desk drawers and one thing and another, and he asked what she was hunting for; that Jacob Freyer, his father, was present at the time, and the father answered: "Those two notes of Leslie Freyer's"; that the witness asked his father if the notes had been paid and the father said yes. The witness said he thought that was a little before Christmas in 1932; that his father said the notes were paid and that Leslie was "wanting the notes." On cross-examination, the witness testified that he had been a witness for defendant in numerous other trials in which defendant had been a litigant.

Defendant contends that the verdict was against the overwhelming weight of the evidence and therefore shows it was the result of passion and prejudice against the defendant on the part of the jury. It is pointed out by defendant that the case was tried before Judge W. C. Hughes who was the regular Circuit Judge of Audrain County, but that before the motion for a new trial was passed upon Judge Hughes became a judge of this court by appointment and the motion for a new trial was passed upon by Hon. E. L. Alford as special judge, but that Judge Alford had not heard the trial of the case. From this viewpoint defendant argues that the rule that the appellate court will defer to the judgment of the trial court on the question of the weight of the evidence does not apply in this case, and urges that the weight of the evidence was so preponderantly great in favor of defendant as to justify the granting of a new trial.

If there is any rule of law in this State more firmly established than any other rule of law, it is the rule that the right to grant a new...