Rutledge v. Weisenborn

• Decision Date: 02 July 1940
• Docket Number: No. 25114.,25114.
• Citation: 142 S.W.2d 884
• Parties: RUTLEDGE et al. v. WEISENBORN.
• Court: Missouri Court of Appeals

142 S.W.2d 884

RUTLEDGE et al. v. WEISENBORN.

No. 25114.

St. Louis Court of Appeals. Missouri.

July 2, 1940.

Rehearing Denied September 13, 1940.

Appeal from Circuit Court, Monroe County; Edmund L. Alford, Judge.

"Not to be reported in State Reports."

Action by J. S. Rutledge and W. T. Rutledge, executors of the will of B. P. Rutledge, deceased, against William T. Weisenborn, administrator of the estate of Frances D. Rutledge, on promissory notes. From an adverse judgment, defendant appeals.

Reversed and remanded.

Lane Henderson, of Shelbina, W. W. Barnes, of Paris, and Roy Hamlin, of Hannibal, for appellant.

Morris E. Osburn, of Shelbyville, and Roy B. Meriwether, of Monroe City, for respondents.

SUTTON, Commissioner.

This action, which is founded on six promissory notes, was commenced on March 19, 1934, in the probate court, whence it went on appeal to the circuit court. The trial in the circuit court, with a jury, resulted in a verdict and judgment in favor of plaintiffs for $6,587.05, including interest. Defendant appeals.

Four of these notes, one for $2,740.73, one for $1,550, one for $119.37, and one for $482, were made payable to the Shelby County State Bank and were signed by Frances D. Rutledge. The first mentioned was also signed by George Weisenborn, and the second and third were also signed by W. T. Weisenborn. The other two notes, one for $25, and another for $75, were made payable to B. P. Rutledge and signed by Frances D. Rutledge.

B. P. Rutledge commenced this action in the probate court, but he died prior to the trial in the circuit court.

B. P. Rutledge married Frances D. Weisenborn. He was a bachelor of mature years at the time of the marriage, and she was a widow. George Weisenborn and W. T. Weisenborn are her sons.

Howard R. Combs, called as a witness for plaintiffs, testified that he was president of the Shelby County State Bank and had been connected with the bank for fifteen years continuously; that on July 18, 1932, B. P. Rutledge called at the bank and asked for the four notes made payable to the bank; that Mr. Rutledge had a checking account at the bank at the time and gave him a check on his account made payable to the bank for $5,253.90. He identified the check, and it was introduced in evidence. On the back of the check appears the following:

                For Frances Rutledge notes ..... $5,175.29
                Tax ............................     55.36
                Insurance ......................     23.25
                                                 _________
                                                 $5,253.90
                

The witness testified that he wrote this endorsement on the back of the check, and that $5,175.29 was the amount then due on the four notes; that upon the receipt of this check he endorsed each of the four notes as follows:

"July 18, 1932. For value received, we hereby sell, assign, transfer and set over unto B. P. Rutledge for full value the within note.

                          "Shelby County State Bank
                          "Clarence, Missouri
                          "By H. R. Combs, President."
                

The witness testified that having so endorsed the notes he then delivered them to Mr. Rutledge, and charged the check to his account.

The notes with the endorsements thereon were put in evidence.

The witness further testified that when Mr. Rutledge gave him the check he told him to assign the notes to him and not to cancel them.

George Weisenborn, Kate Weisenborn, Lamar Weisenborn, and William T. Weisenborn, called as witnesses for defendant, gave testimony to the effect that after B. P. Rutledge obtained the four notes from the bank he delivered them to his wife along with the other two notes in suit; that Mrs. Rutledge put them in her tin box and locked the box and put it in her bedroom on the shelf; that after her death it was found that the box had been broken open, and the notes were not in it.

George Weisenborn testified that at the time that Mr. Rutledge handed the notes to Mrs. Rutledge he said: "You don't owe the Shelby County State Bank anything, or me, or anybody else. Everything is paid off."

Lamar Weisenborn testified that when Mr. Rutledge gave the notes to Mrs. Rutledge he said: "Here are your notes. They are all paid off, and you and your boys neither one owe anybody anything."

Kate Weisenborn testified that she asked Mr. Rutledge for money to buy her father's farm, and that Mr. Rutledge said: "No, I won't let you have any money. You know what I have already done for you, the boys, and Frances. I have already paid off all the notes at the bank for George, Willie, and Frances. They owe me or nobody else or the bank or nobody nothing." That shortly thereafter Mr. Rutledge delivered the notes to Mrs. Rutledge, and when he delivered her the notes he said: "Frances, you take them and put them away. I paid them off. They are yours. I give them to you and the boys."

Samuel Todd, called as a witness for defendant, testified that Mr. Rutledge told him that he had paid off the notes and gave them to his wife and the boys.

J. S. Rutledge and W. T. Rutledge, who are nephews of B. P. Rutledge and the chief beneficiaries under his will, testified that they never saw the tin box referred to by defendant's witnesses until it was produced at the trial.

Defendant assigns error here for the refusal of his instruction in the nature of a demurrer to the evidence. He puts the assignment on the ground that the testimony introduced on behalf of defendant shows that B. P. Rutledge gave to his wife all of the notes in suit, and that this testimony is not contradicted.

The rule decisive of this assignment is stated by our Supreme Court, speaking through Judge Douglas, in Woehler v. City of St. Louis, 342 Mo. 237, 114 S.W.2d 985, loc. cit. 987, as follows: "The court has no right to tell the jury that it must believe the witnesses. The jury, in the first instance, is the sole judge of the credibility of the witnesses and of the weight and value of their evidence, and may believe or disbelieve the testimony of any one or all of the witnesses, though such evidence be uncontradicted and unimpeached."

It would seem that this rule ought to have peculiar force in a case such as this where the testimony relates to the statements and acts of a person since deceased, and the testimony is given chiefly by interested witnesses.

Defendant complains that the court committed error in allowing the witness Howard R. Combs to testify that he was president of the Shelby County State Bank. Defendant says this was error because the records of the bank were the best evidence of such fact. There is no merit in this contention. The rule invoked has no...