Parker v. Staley

• Decision Date: 26 October 1929
• Docket Number: No. 4610.,4610.
• Citation: 21 S.W.2d 200
• Parties: PARKER v. STALEY.
• Court: Missouri Court of Appeals

21 S.W.2d 200

PARKER v. STALEY.

No. 4610.

Springfield Court of Appeals. Missouri.

October 26, 1929.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by R. B. Parker against Fred Staley. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Howell H. Heck, of Butler, and O. T. Hamlin, of Springfield, for appellant.

BAILEY, J.

This is an action on a promissory note in the original sum of $3,000, upon which plaintiff had credited the sum of $1,907. The petition was in conventional form. The answer consisted of a general denial, a plea of alteration, and non est factum. The case came on for trial to the court sitting as a jury, and a demurrer to the evidence was sustained. Thereupon plaintiff took an involuntary nonsuit, filed motion to set same aside, which, being overruled, plaintiff has appealed.

The evidence most favorable to plaintiff tends to prove the following state of facts: Defendant executed the note for $3,000 in consideration of a loan to defendant of a like amount, evidenced by a check drawn to his order and cashed by him. This check was drawn by plaintiff's wife, Mrs. Amy Parker, and, according to plaintiff, the money for which the note was given was her money. The note shows the name of the plaintiff, Robert B. Parker, to have been crossed out and the name of Mrs. Amy Parker inserted as payee. This was done, according to plaintiff, before delivery and by defendant himself in plaintiff's presence, because the money belonged to plaintiff's wife. Plaintiff and defendant owned some property together, and, when it was sold, defendant sent all the money to plaintiff, and later it was determined plaintiff owed defendant $1,907, which plaintiff credited on the back of the note. As to the manner in which plaintiff obtained the note, he testified that his wife was poorly, and, knowing she was going to die, indorsed the note in blank and made a gift of it to plaintiff. There was no gift shown in writing. Defendant testified that he signed the note, but that it had been fully paid.

It is unnecessary to set forth more of the evidence. There appears to be but one point at issue on this appeal. The trial court sustained the demurrer to the evidence, and forced plaintiff to take an involuntary nonsuit on the theory, as set forth in plaintiff's brief, that there could be no gift of the note by the wife to the husband without an independent agreement or consent in writing. We have no brief here from respondent, but the ruling of the trial court was no doubt based upon the provisions of section 7328, Rev. St. Mo. 1919. That section is known as the Married Women's Act, and was first enacted in 1875 (Laws 1875, p. 61). It provides for her separate property, and contains a proviso that personal property shall not be deemed to have been reduced to possession by the husband except with the express consent of the wife, and the same shall remain her separate property, "unless by the terms of said assent, in writing, full authority shall have been given by the wife to the husband to sell, encumber or otherwise dispose of the same for his own use and benefit." In 1889, after the enactment of what is now section 7328, supra, there was passed a further Married Woman's Act, known as section 7323...