Orthwein v. Nolker
| Decision Date | 19 November 1921 |
| Citation | 234 S.W. 787,290 Mo. 284 |
| Parties | CHARLES C. ORTHWEIN, Appellant, v. WILLIAM H. NOLKER, Administrator |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Vital W. Garesche Judge.
Reversed and remanded.
Shepard Barclay for appellant.
(1) The burden of proof to show facts which might render a witness incompetent rests upon those who assert incompetency; for all witnesses "are presumed to be competent, until the contrary appears." 3 Phillipps on Evid. (5 Am. Ed.) pp 13, 35; Freleigh v. State, 8 Mo. 611; King's Lake Dist. v. Jamison, 176 Mo. 570; Whitman v Foley, 125 N.Y. 659. Disqualification of a witness must clearly appear in order to exclude him. Nearpass v. Gilman, 104 N.Y. 506. (2) There is no testimony to disqualify Max R. Orthwein; no testimony that he was agent for Mrs. Caroline Orthwein. R. S. 1919, sec. 5410. (3) Max R. Orthwein was agent for Louis T. Nolker to obtain a short extension of time beyond maturity of the note, "until after the holidays" as Nolker requested, shortly before maturity of this note. Orthwein obtained the holder's assent thereto; reported it to Nolker, and the time for payment was hence and thereby extended beyond maturity, which facts constitute a waiver of any demand, notice or protest, necessary to hold Louis T. Nolker if he was strictly indorser. R. S. 1919, secs. 895, 897; Banking Co. v. Blell, 57 Mo.App. 410; Bank v. Bartle, 114 Mo. 276; Yaeger v. Farwell, 13 Wall. 6; Gove v. Vining, 7 Metc. 212; Cady v. Bradshaw, 116 N.Y. 191; Hale v. Danforth, 46 Wis. 554; Belch v. Roberts, 191 Mo.App. 243. (4) Section 5410, Revised Statutes 1919, is an "enabling and not a disabling" statute (89 Mo. 128), intended to confer competency on witnesses previously disqualified "because of interest in the event of the action." It does not disqualify any witness theretofore competent under principles of the common law. Wagner v. Binder, 187 S.W. 1128; Stanton v. Ryan, 41 Mo. 510; Burd v. Ross, 15 Mo. 254; Massey v. Butts, 221 S.W. 152; Angell v. Hester, 64 Mo. 142; Meier v. Thieman, 90 Mo. 433; Allen v. Jessup, 192 S.W. 723; Clark v. Thias, 173 Mo. 628; Lytle v. Bond, 40 Vt. 618; Bank v. Gerli, 225 Pa. 256; Re Edmundson, 259 Pa. 429; MacDonald v. Tittmann, 96 Mo.App. 536; Bates v. Forcht, 89 Mo. 121. (5) The testimony offered by plaintiff to show the "facts and surrounding circumstances at the making of that note" was competent; and the circuit court erred in excluding it. It was part of the res gestae, tending to show that Nolker was the original debtor, and making more probable the claim of plaintiff of waiver, etc., as testified by Max R. Orthwein. Wood v. Matthews, 75 Mo. 477; Bank v. Willerscheid, 222 S.W. 912; Castrique v. Buttigieg, 10 Moore (P. C.) 108; McDonald v. Whitfield, 8 App. Cas. 733; Brown, on Parole Evid. sec. 83; Phillips v. Preston, 5 How. 278. (6) Even if Max Orthwein had been an agent (not otherwise interested) he would be competent to testify at common law, when the adversary party is disqualified, or dead. 1 Greenl. Evid. (12 Ed.) sec. 416; Bates v. Forcht, 89 Mo. 127; Bank v. Rood, 132 Mo. 260. It was so held in Missouri prior to the enactment of Section 5410. Stothard v. Aull, 7 Mo. 318; St. John v. McConnell, 19 Mo. 38. Later decisions recognize the same rule as existing. Stanton v. Ryan, 41 Mo. 510; Poe v. Domic, 54 Mo. 124; Williams v. Edwards, 94 Mo. 447; Bates v. Forcht, 89 Mo. 127; Clark v. Thias, 173 Mo. 628; Bank v. Slattery, 166 Mo. 620; Baer v. Pfaff, 44 Mo.App. 35; Leahy v. Simpson, 60 Mo.App. 83; MacDonald v. Tittman, 96 Mo.App. 536; Dawson v. Wombles, 104 Mo.App. 272; Wagner v. Binder, 187 S.W. 1128; Allen v. Jessup, 192 S.W. 720. If he was agent for both parties, he would also be competent. Slupsky v. Starr, 223 S.W. 816; Hunter v. Leathley, 10 B. & C. 864; 1 Greenl. Evid. (16 Ed.) p. 901, sec. 416. (7) Max R. Orthwein (as president of the Peroxident Co., maker of the note) was compellable to testify if called by the plaintiff, as a witness of adversary interest to the payee. R. S. 1919, sec. 5412.
Marion C. Early for respondent.
(1) The fact that Louis T. Nolker's name first appears on the back of the note, without mention on its face, makes him an indorser under Revised Statutes 1919, sec. 849; and such effect cannot be changed or varied by parol evidence. Eaves v. Keaton, 196 Mo.App. 424; First Bank v. Korn, 179 S.W. 721. (2) Under Sec. 5410, R. S. 1919, where one party to a transaction in suit is dead, the surviving agent of the other party, who conducted such transactions, cannot testify as to them. Stanton v. Ryan, 41 Mo. 510; Fulkerson v. Thornton, 68 Mo. 468; Butts v. Phelps, 79 Mo. 302; Williams v. Edwards, 94 Mo. 447; Robertson v. Reed, 38 Mo.App. 32; Orr v. Rode, 101 Mo. 387; Leach v. McFadden, 110 Mo. 584; Carroll v. United Railways, 157 Mo.App. 247; Edwards v. Scharff, 279 Mo. 78; Scott v. Cowen, 274 Mo. 398; Lyngar v. Schaefer, 125 Mo.App. 400. (3) The foregoing proposition is a corollary of the rule that the proviso of Section 5410 must be interpreted to secure equality, so that when death has sealed the lips of one party, the other shall not be permitted to testify to transactions with the deceased. Kersey v. O'Day, 173 Mo. 56; Weiermueller v. Scullin, 203 Mo. 466; Miller v. Wilson, 126 Mo. 48; First Bank v. Payne, 111 Mo. 291; Green v. Ditch, 143 Mo. 1; Taylor v. George, 176 Mo.App. 215; Griffin v. Nicholas, 224 Mo. 327; Meier v. Thieman, 90 Mo. 433; Chapman v. Dougherty, 87 Mo. 617; McKee v. Downing, 224 Mo. 115; Southern Bank v. Slattery, 166 Mo. 620. (4) As a matter of fact, the testimony of William R. Orthwein was immaterial. (5) As a matter of fact, under the evidence, Max Orthwein never was the agent of Louis T. Nolker, now deceased. (6) The court below ruled out none of the evidence tendered to prove that Max Orthwein was the agent of Louis T. Nolker, now deceased. Max Orthwein, as president of the Peroxident Company, the maker of the note, claiming that as between the company and Louis T. Nolker, the indorser, the latter was the debtor, and that the company was only accommodation maker as between the two, has an adverse interest to Louis T. Nolker, deceased; and therefore is incompetent to testify to transactions with Louis T. Nolker. This is true: (a) Under appellant's construction of the proviso to Sec. 5410, R. S. 1919; Allen v. Jessup, 192 S.W. 720. (b) And also under the construction of the proviso set forth by respondent. Scott v. Cowen, 274 Mo. 398; Lyngar v. Schaefer, 125 Mo.App. 400; Scott v. Burfiend, 116 Mo.App. 71; Thompson v. Brown, 121 Mo.App. 524; McClure v. Clement, 161 Mo.App. 23; Cleveland v. Carlson, 99 Mo.App. 468.
This case originated in the Probate Court of the City of St. Louis as a demand against the estate of Louis T. Nolker, deceased. The claim was allowed in that court, and on appeal to the circuit court judgment was rendered in favor of the defendant, disallowing said claim, and plaintiff has appealed. The claim is based on the following note:
The principal of said note with accrued interest brings the amount of the demand within our jurisdiction. No part of the principal or any interest thereon has been paid. Appellant acquired title to said note by endorsement from the executors of the estate of Caroline Orthwein, deceased.
Plaintiff offered and the trial court excluded oral evidence tending to show that Nolker was in fact maker of the note; that it was executed to renew a note signed by him as maker. This testimony was excluded on the ground that the witness, Max R. Orthwein, was incompetent to testify, because he was acting as the agent of Caroline Orthwein, the payee, and because Louis T. Nolker, the maker, was dead. Because of the view we take of the competency of this sort of testimony generally, discussion here of the competency as a witness of the agent of one party to a contract when the other is dead is unnecessary. That question will be considered later in the opinion in connection with the evidence offered tending to show waiver of notice of dishonor.
The testimony of this witness as to the circumstances leading up to Nolker's signature on the note was properly excluded, not for the reason assigned, but because it is not permissible to show by parol evidence that Nolker signed the note in any capacity other than as endorser. Plaintiff tried the case on the theory and endeavored to show that Nolker was in fact maker of the note. Section 10033, Revised Statutes 1909, enacted in 1905 (now Sec. 849, R. S. 1919), is as follows:
"A person placing his signature upon an instrument otherwise than as maker, drawer or acceptor is deemed to be an endorser, unless he clearly indicates by appropriate words his intention to be bound in some other capacity."
In the case of Overland Auto Company v. Winters & Strang, 277 Mo. 425, 210 S.W. 1, this Division, construing the statute just quoted and speaking through White, C., held that the words "unless he clearly indicates by appropriate words his intention to be bound in some other capacity" undoubtedly mean "words written upon the instrument itself" and that "the legal effect of a blank endorsement cannot be changed or varied by evidence from another...
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