Perry's Adm'rs v. Roberts

• Decision Date: 31 October 1852
• Citation: 17 Mo. 36
• Parties: PERRY'S ADMINISTRATORS, Respondents, v. ROBERTS, Appellant.
• Court: Missouri Supreme Court

17 Mo. 36

PERRY'S ADMINISTRATORS, Respondents,

v.ROBERTS, Appellant.

Supreme Court of Missouri.

October Term, 1852.

1. In a suit by administrators, declarations of the intestate are not admissible evidence for them.

2. An application for a change of venue is properly overruled when not applied for until the cause is called for trial, no previous notice having been given of the application.

3. Before a party can prove the contents of a paper, he must prove the existence of an executed original.

4. Where notes sued on are proved to have been given upon a settlement, and the defendant sets up a claim which accrued prior thereto, he must show that it was not included in the settlement. If the disputed claim was discussed at the time, the settlement will be held to embrace it, unless it clearly appears that the parties agreed to leave it open.

Error to Washington Circuit Court.

This was a suit begun by respondents, as administrators, upon two notes, dated June 16, 1846, made by the appellant to their intestate, John Perry, in his life time. The appellant set up in his answer, by way of offset, a claim for the rents of a saw-mill. He stated that in 1843, being indebted to John Perry in a large amount, and being the equitable owner of a valuable saw-mill, the legal title to which was in Perry, he leased the mill to Montgomery & Brickey, for four years, at an annual rent of 60,000 feet of good merchantable lumber, payable semi-annually, and assigned the lease to Perry in payment of his indebtedness to him; that the notes sued on were given on the day of their date, upon a general settlement of all accounts between John Perry and himself up to that time, except the balance due upon the lease which was then unexpired; that in the settlement, Perry gave him credit for the amount of lumber he had actually received from Montgomery & Brickey, and at the same time, gave him written authority to collect, as his agent, what was due on the lease; that he caused suit to be brought in his own name to the use of Perry, against Montgomery & Brickey, but before judgment was obtained, Perry died, and his administrators dismissed the suit and prevented the collection of the rent; that the amount due on the lease, without interest, was $1568 04; that from the time of the assignment, Perry took entire control of the rent and would not permit him to control it in any manner, except under his directions. The appellant, by calculating interest upon the uncollected installments of rent, from the dates they respectively became due, claimed that the notes were paid and that Perry was in debt to him, $54 85, for which he asked judgment.

At the October term, 1851, the appellant obtained an order upon the respondents for the production of the assignment of the lease referred to in his answer, on or before January 1, 1852. Edward Bredell, one of the respondents, answered to the rule that he was acting administrator of John Perry, and that all the papers belonging to the estate were in his possession; that he had carefully examined said papers again and again, and caused his clerk to do so, and that neither could find any such paper as that called for.

At the April term, 1852, the case was called for trial, and the plaintiffs announcing themselves ready, the defendant said he had no reason for a continuance if the plaintiffs had answered the rule upon them for the production of the assignment of the lease. The court decided that Mrs. Perry, administratrix, the other plaintiff, need not answer, to which opinion the defendant excepted. The defendant then presented an affidavit for a change of venue, stating that the court was prejudiced against him, and he could not have a fair and impartial trial, and that he had come to this opinion since the cause had been called. The court overruled the application, for the reason that there had been no previous notice of its presentation. The defendant excepted and the trial proceeded.

During the trial, a rough draft of the power of attorney to collect rents, spoken of in the defendant's answer, was produced by plaintiffs' attorneys, the defendant being about to ask an order for its production. That paper had no signature nor date, and was in the following words:

“I, John Perry, of St. Louis, do hereby appoint William F. Roberts my agent to collect the balance of the rent due for the saw-mill on Bates' creek, and what may accrue between now and March 8th next, from Preston Brickey and James Montgomery, when the lease of said Montgomery & Brickey will expire, and the said rents, when collected and paid over to the said John Perry, are to be credited on the notes given by the said William F. Roberts to the said John Perry, of even date with this paper.”

The defendant offered to read this rough draft to two of his witnesses, to enable them to judge whether it was in substance identical with one they had seen in his possession, purporting to be executed by Perry. There being no proof that the signature of Perry to the original was genuine, the court refused to allow its...