Perry v. Siter

• Citation: 37 Mo. 273
• Parties: CHARLES PERRY et al., Respondent, v. JOHN SITER et als., Appellants.
• Decision Date: 28 February 1866
• Court: United States State Supreme Court of Missouri

37 Mo. 273

CHARLES PERRY et al., Respondent,

v.JOHN SITER et als., Appellants.

Supreme Court of Missouri.

Febuary Term, 1866.

Appeal from Platte Circuit Court.

Merryman, Spratt & Burnes, for appellants.

I. The court improperly overruled the objection of defendants to Hart's deposition. (Caldwell v. Garner, 31 Mo. 123; Parrish v. Frampton, 32 Mo. 397: Bruce to use, &c. v. Sims et al., 34 Mo. 246; R. C. 1855, § 6, pp. 1577-8.)

II. The court improperly overruled defendants' objections to Hooper's deposition. (See authorities above cited.)

III. The court improperly overruled defendants' objections to Cummings and Clayler's deposition relating to the affidavit or deposition of Williams. There is no evidence proving or tending to prove, that Williams' original deposition was taken in conformity to law.

IV. The court improperly admitted in evidence the copy of Williams' deposition. There is no evidence that the original was taken according to law, or that it was lost, or that plaintiffs had made any effort to find it. No foundation was laid for the introduction of the copy. (1 Greenl. Ev. § 558.)

V. The judgment on the evidence should have been for defendants. (Strong v. Hopkins, 1 Mo. 377; Adams' Eq. 460; Simpson v. Hart, 1 Johns. Ch. 97.)

VI. The judgment in the case should have been arrested. The facts stated in the petition do not constitute a cause of action. (See authorities referred to under last point, and Creath Adm'r v. Sims, 5 How. 192; Sample v. Barnes, 16 How. 70.)

Points and authorities for respondents:

Hart never was an assignor within the meaning of the act of the Legislature concerning witnesses. That act was only intended to exclude the assignor of a note or an account from testifying in favor of the holder to facts occurring anterior to the assignment. It was never intended that he should be excluded from testifying in favor of the adverse party in interest if called on by such party; if so, a man could always defeat a defence to a note payable to himself by assigning it to a third person, and thereby depriving the defendant from the right to call on him to testify. (R. C. 1855, §§ 3 & 6, p. 1577; Parrish v. Frampton et al., 22 Mo. 396.)

The evidence given by the witnesses did not tend to change the nature or effect of the words used in the assignment, but only showed the consideration for which the assignment was made and the object of the assignment, which is admissible even in reference to instruments under seal or deeds.

The case being clearly a case where a court of chancery would interfere to prevent a great wrong and grant an injunction, the judgment of the court below should be affirmed. (Thomas v. Brashear, 4 Mo., 65; Teryer v. Avstell, 2 Stew. 119; Norton v. Wood, 22 Wend., 520, and cases cited; Pickett v. Morris, 2 Wash., Va., 255; Hord v. Dishman, 5 Call. 279; Matson v. Field et al., 10 Mo. 100.)

In this case Perry was prevented from making his defence at law by the act of the defendant, or of the real party in interest in the transaction. Perry had no right to suppose that Belt, Coleman & Co. would fraudulently set up claim to the debt paid by him. (Taylor v. Wood, 2 Hay. 332.)

HOLMES, Judge, delivered the opinion of the court.

This was a petition in the nature of a bill in equity for an injunction to restrain the execution of a judgment at law. On a final hearing, the injunction was made perpetual. The principal matter to be decided is, whether the evidence in the case sustained the decree that was rendered in the court below. There are also some questions relating to the admissibility of evidence, which will be considered in the proper place. The most material facts may be stated as follows:--The plaintiffs had executed a promissory note to the firm of Hooper & Williams of Great Salt Lake City, in Utah, drawn payable to them. This note was endorsed in blank, and sent to their agent in the city of St. Louis for collection at a banking house where it was made payable. Being protested for non-payment, the agent at St. Louis, under instructions from the owner of the note, sent it to the firm of Belt, Coleman & Co. of Weston, Mo., endorsed in blank for collection, where it was put in suit by them, in their own names, against the makers, the plaintiffs herein. The petition alleges that these endorsements were made for the mere purpose of collection, for the benefit of the payees, and without any valuable consideration moving from the endorsees or either of them. The answer denies this, and avers that the assignments were severally made for a valuable consideration, and that all interest in the note was transferred to the said firm of Belt, Coleman & Co. The evidence that was admissible and competent on the part of the plaintiffs would seem to have been amply sufficient to establish the fact that the endorsements had been made for the purpose of collection only; and no evidence was introduced by the defendants to prove the contrary. There is nothing in the evidence to show that any actual consideration was paid by this firm for the note. It appears that the payees of the note had been indebted to that firm on a note of some four thousand dollars, which had been sent to an agent in Utah for collection, and that the note had been there paid and taken up, leaving no other indebtedness between the parties unsettled, and that this was done sometime in the fall of the year 1858. Judgment was obtained in the suit against these plaintiffs, in the Weston Court of Common Pleas, on the note, in favor of Belt, Coleman & Co., for the sum of fourteen hundred and ninety-six dollars and fifty six cents, on the 18th day of October, 1858. In the meantime, the plain tiffs had paid some part of the debt, and had entered into an arrangement with the payees in Utah, the result of which was that a letter of instructions was addressed by them to the Attorneys having charge of the suit, whereby they were directed to send the note or the judgment (if one had been obtained) to them for final settlement there. The attorneys declined to do this; and it further appears that Belt, Coleman & Co. being largely in debt to the firm of Siter, Price & Co. of Weston, and claiming or pretending to be the holders of this note for a valuable consideration paid by them, executed and delivered to them a written paper dated the 8th of September, 1857, whereby they purported to as sign to them all their right and interest in this note and the judgment that should be obtained on it, “for value received.” One of the attorneys, who fairly admitted that he was interested indirectly in the result of this suit, stated that the assignment was made to satisfy the indebtedness of Belt, Coleman & Co. to the other defendants. He also stated that Thomas S. Williams, in his lifetime, admitted to him that the proceeds of the note were to be applied to the payment of the note of four thousand...