Pitthan v. Schnaitman

• Decision Date: 02 December 1907
• Citation: 106 S.W. 103,127 Mo. App. 29
• Parties: PITTHAN v. SCHNAITMAN.
• Court: Missouri Court of Appeals

106 S.W. 103

127 Mo. A. 29

PITTHAN v. SCHNAITMAN.

Kansas City Court of Appeals. Missouri.

December 2, 1907.

EXECUTORS AND ADMINISTRATORS — CLAIM AGAINST ESTATE — MONEY LOANED — EVIDENCE.

Evidence that deceased, on his partner in the saloon business saying that they had run out of money, and that deceased better get some, about $300, left his place of business, saying that he would go up to P.'s saloon, and get it, and that on arriving there he said he wanted $300, and P., saying "All right," gave him that amount, nothing further, as to giving or surrendering evidences of indebtedness, being done, is sufficient evidence, as against the estate of deceased, to warrant a finding of a loan of the money to deceased.

Appeal from Circuit Court, Buchanan County; Henry M. Ramey, Judge.

Action by W. H. Pitthan against Mary Schnaitman, administratrix of Oscar Schnaitman, deceased. Judgment for plaintiff. Defendant appeals. Affirmed.

Charles F. Strop and Eugene Silverman, for appellant. Rusk & Stringfellow, for respondent.

BROADDUS, P. J.

The action was instituted in the probate court, where the plaintiff filed his claim against the estate of the deceased for the sum of $300. The claim was allowed by the probate court, and the administratrix appealed to the circuit court, where the plaintiff again obtained judgment, from which the administratrix appealed to this court. The plaintiff seeks to have allowed against the estate of Oscar Schnaitman said sum of $300, purporting to be for money loaned to the partnership of Schnaitman & Erath, of which deceased was a member. A jury was waived, and the cause was tried by the court. The testimony introduced by the plaintiff was that on the day the loan is alleged to have been made Erath, the partner of deceased, said to him that he needed some money with which to cash checks, and that deceased replied that he would get it; that, together with the porter employed by the partnership, the deceased went to plaintiff's place of business, and plaintiff gave him the money. The plaintiff and also the deceased and Erath were engaged in the saloon business. It was not shown that any note was given for the sum, no book accounts or ledger entry, or other evidence of that description of indebtedness was produced showing the character of the transaction. In the course of the opinion more particular reference to the testimony will be made. At the close of plaintiff's testimony, the defendant offered a demurrer to the evidence, which was by the court overruled. The defendant introduced no testimony. Finding and judgment were for the plaintiff. Therefore the only question before this court is whether upon the evidence so introduced the plaintiff was entitled to recover.

It is the contention of defendant that the mere reception by the deceased of the $300 is no evidence of a loan more than the payment of an indebtedness, and was not sufficient to authorize any finding in favor of plaintiff. In the first place, it is contended before a claim should be allowed against the estate of a deceased person "very satisfactory evidence" should be produced of its justness. We do not know that the rule of law in such cases would be different materially from that prevailing in ordinary civil cases. The rule that should prevail is that the very best evidence obtainable should be introduced by the claimant against the estate of the deceased person; for in all instances, by reason of the death of one party,...