Perry's Adm'rs v. McGuire

• Decision Date: 31 October 1860
• Parties: PERRY'S ADMINISTRATORS, Defendants in Error, v. MCGUIRE, Plaintiff in Error.
• Court: Missouri Supreme Court

31 Mo. 287

PERRY'S ADMINISTRATORS, Defendants in Error,

v.MCGUIRE, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1860.

1. Where a report of a referee, to whom a cause has been referred under the practice act of 1849, (Sess. Acts, 1849, p. 91,) to report upon the whole issue, is accompanied by all the testimony taken by him and forms a part of his report, the supreme court will examine the same and see if the facts found are consistent with the evidence, when the motion for a review distinctly presents the questions of law and fact.

2. The distributee of a solvent estate is a competent witness for the estate. (Stein v. Weidman, 20 Mo. p. 17, affirmed.)

3. As to the weight of evidence to sustain facts found.

Error to St. Louis Court of Common Pleas.

This was an action by the administrator of John Perry to recover from John P. McGuire a balance of $2,454.37, on an open and running account between the parties during Perry's lifetime. Suit was commenced by attachment January 20, 1855. Defendant being a non-resident was brought in by publication, and filed his answer. Afterwards, on 17th May, 1856, he filed an amended answer denying the indebtedness to Perry, but that Perry was indebted to him. He denies all knowledge as to the account sued on, and alleges a settlement with Perry about April 15, 1849, when there was two or three hundred dollars due to Perry; that Perry had the services of divers negroes, whose names are given, up to his death, and that the hire of them was reasonably worth $821.66, which negroes belonged to defendant, and that the administrators have had said negroes ever since, and that their services are reasonably worth $650 per annum. He further pleaded that the action was not commenced within five years after the cause of action accrued. To this answer plaintiff filed a replication, denying the alleged settlement of April, 1849; denying that either Perry or his administrators had had the services of any negroes of McGuire, and alleging that the negroes mentioned in the answer were the property not of McGuire but of Perry. The cause was referred to a referee, who found that the plaintiff was entitled to recover the sum of $2,422.87, with interest. The evidence taken consisted, in part, of the testimony of the clerks of Perry, who deposed that they had furnished to defendant from time to time the articles charged in the account against him; that the books containing this account were kept where defendant always had access to them; that many of the entries were made by McGuire himself, who was clerk for Perry at one time, and that he constantly had, up to the time of going away in April, 1849, full means of knowing what was charged against him, frequently examined the books, and never objected to his account as stated in the books of Perry. Other witnesses testified that McGuire spoke of being furnished with all his outfit by Perry and of his having no property in Missouri at the time he left the state for California. There was some evidence that upon a sale of McGuire's property and effects on execution, Perry had purchased the negroes spoken of in the answer of defendant. The defendant gave in evidence the depositions of several witnesses tending to show that Perry had said, shortly before McGuire left Missouri, that McGuire owed him nothing which he intended to trouble him for. On the subject of the negroes, the testimony was that after the sale of them to Perry by the sheriff, his nephew, McGuire, was for a long time, perhaps up to the time of his leaving the state, allowed to have the use of them gratuitously, or for a very trifling compensation; Perry, however, always asserted his title to them, and McGuire never did assert title in the lifetime of his uncle, but acquiesced in the claim of his uncle. McGuire brought a suit in St. François county, since the death of Perry, against his administrators, in which he claimed the ownership of the negroes; in this suit the defendants filed interrogatories to be answered by the plaintiff McGuire, who, in his answers, referred to certain books and documents for elucidation of what he said. The defendant desired to read these answers in the present suit, to which the plaintiff objected unless the defendant, McGuire, would at the same time produce the books to which he made reference in his answers, which books were admitted to be in his possession. He declined to produce these books, and the plaintiffs insisting on their objection, the referee excluded the defendant's answers. Bredell, one of the plaintiffs, was permitted to testify respecting matters which came to his knowledge before he was appointed administrator of Perry. Bredell's wife was one of the distributees of Perry's estate. His testimony referred entirely to the ownership of the negroes in question. Defendant objected to Bredell's testimony, as also to similar testimony from John T. Perry and Joseph T. Brown, also distributees of Perry's estate but not parties to this action. Testimony was given showing that defendant was in the habit of getting flour at Perry's mill and had blacksmithing done at his shop, and that memoranda of these transactions were kept by the foremen at the mill and shop and were sent up to Perry's store and then charged in the account kept on plaintiff's books against McGuire. Defendant filed his motion with reasons for setting aside the report of the referee.

Thomas C. Johnson, for plaintiff in error.

I. The report of a referee, under the code of 1849, stands upon the same footing as if the case had been tried by the court. When all the evidence is preserved in the bill of exceptions, the supreme court will examine the same and see whether the facts found are consistent with the evidence; whether other facts should not have been found than those stated by the referee; whether the evidence does not prove other facts which would destroy the force and effect of those found; whether the referee has found upon all the issues raised by the pleadings; whether the conclusions of law upon the facts found are correct, and finally whether the referee has erred in the admission or rejection of evidence. These principles are gathered from the case of Hays v. Hays, 23 Mo. 133. In New York, upon an appeal from a referee's report, the court (Lahin v. N. Y. & E. R. R. 11 How. Pr. Rep. 412) says that it will examine and determine whether the referee has passed upon all the material issues made by the pleadings; whether his findings on each of the questions of fact are supported by the evidence, and whether the legal conclusions from the facts are in accordance with the law of the land. (Hulse v. Sherman, 13 How. Pr. Rep. 411.) In the present case we have all the evidence preserved, the rulings of the referee and his full report.

II. The referee erred in admitting the testimony of Brown, John T. Perry, and Bredell. The two first were distributees of the estate, and the last was distributee in right of his wife and also a party to this suit. It was shown that prior to the suit being brought all the debts were paid; that the personal estate had been distributed except the subject matter of this suit, and the negroes in suit in St. François county; that each heir had received already some seven or eight thousand dollars as his share in the distribution. Here is a case where the suit is brought for the immediate benefit of the heirs. There are no creditors to come in and be satisfied before the heirs. Here is no case of a merely solvent estate. The debts have been paid long ago. (See Cullen v. Hanson, 1 Duer, 309.) In the present case the administrators are merely nominal parties. The heirs are the cestuis que trust, and immediately entitled to the money--just as much so as if they were parties to the suit. In the case of Scroggin v. Holland, 16 Mo., a widow of an insolvent estate was held competent. In the case of Stein v. Weidman's estate, 20 Mo. p. 17, the court held the widow of a solvent estate a competent witness. In that case the admission was that the estate was solvent; it did not appear that it would be more than solvent or how much, if anything, the widow would receive. The present case is entirely out of the scope and reasoning in Stein v. Weidman.

III. The referee erred in ruling out the interrogatories and answers thereto by McGuire in the suit in St. François county. These interrogatories were filed under the code of 1849. The code prescribes the forms to be gone through to entitle a party to procure an order upon his adversary to...