Samuel T. Williams' Admr. v. Williams

• Decision Date: 30 April 1878
• Citation: 67 Mo. 661
• Parties: SAMUEL T. WILLIAMS' ADMR. v. WILLIAM WILLIAMS et al., Appellants.
• Court: Missouri Supreme Court

67 Mo. 661

SAMUEL T. WILLIAMS' ADMR.

v.WILLIAM WILLIAMS et al., Appellants.

Supreme Court of Missouri.

April Term, 1878.

Appeal from Lawrence Circuit Court.--HON. JOSEPH CRAVENS, Judge.

H. Brumback for appellants.

Landrum & Teel for respondent.

HENRY, J.

This suit was commenced before a justice of the peace on a note alleged, in the statement filed, to have been executed “on or about the first day of October, 1874, whereby defendants promised to pay to Samuel T. Williams, for value received, ninety dollars in ______ months from date thereof.” The justice rendered a judgment for plaintiff, from which defendants appealed to the circuit court, where plaintiff again had judgment, from which defendants have duly prosecuted their appeal to this court. The bill of exceptions is very imperfect. No date is given to any order, motion or proceeding in the cause. It does appear that it was tried at the February term of the Lawrence circuit court, but whether on the first, last or what day in February, or whether in that month, there is nothing to show, and, while it also appears that the jury committed an error in the amount of interest allowed on the note, and that a remittitur was entered by plaintiff of $6.70, it is impossible to tell, from this record, whether that was an amount sufficient to cure the error.

1. INTEREST: promissory note.

The court instructed the jury to allow ten per cent. interest on the note from its date. The statement filed with the justice of the peace did not allege that the note bore interest at ten per cent. per annum, or what rate of interest it bore. There was no evidence to show that any rate of interest was named in the note when the note was executed or dated, or when it became due. It was essential to the recovery that plaintiff should have proved these facts, yet the record contains not a syllable of evidence tending to establish them.

2. WIFE, COMPETENCY AS A WITNESS: agency.

On the trial Mrs. Williams, the widow of Samuel T. Williams, was introduced as a witness and permitted to testify, to which defendant objected. The ground upon which she was permitted to testify was that she was the agent of her husband in lending the money which was the consideration for the note; but she was the witness, and the only witness, who testified to her agency in that transaction. Our statute allows a married woman to testify in a suit to which her husband is a party where the transaction was had and conducted by her as her husband's agent. This she could not do at common law. In the case of Chesley v. Chesley et al., 54 Mo. 347, the court observed: “Except as modified by our statute, husband and wife cannot ordinarily be witnesses for or against each other. However, even at common law, the wife might testify in her husband's behalf when employed as his agent in any given transaction.” But the court evidently did not carefully consider that question, remarking that, if the testimony of the husband in that case were entirely disregarded, there was ample evidence to sustain the finding of the court below. There were a few exceptional cases mentioned in the elementary works in which, at common law, the wife could testify in cases in which the husband was a party, but it is not a general principle of the common law that the wife can testify in her husband's behalf when employed as his agent in any given transaction. Greenl. on Ev., p. 481, secs. 334-337. In section 343 some of the exceptions to the general rule are stated. Another familiar exception is where a suit is instituted against a common carrier or hotel-keeper for the loss of the contents of a wife's trunk, in which, from necessity, she has been permitted to testify to the contents, but then the loss of the trunk must be proved by other evidence. Another is where the husband's account-books have been kept by his wife, and are offered in evidence in an action brought by him for goods sold. Here, it has been held, she may testify that she made the entries by his direction and in his presence. But the causes which establish these exceptions recognize the general rule, and we have failed to find a case or an authority stating the law to be as announced in Chesley v. Chesley. If such had been the common law, there would have been no necessity for the provision in the statute.

In most of these exceptional cases it appears, from the very nature of the suit or prosecution, that the circumstances existed which authorized the wife to testify, but we apprehend that where these facts did not appear the wife could not testify until, by other evidence than her own, they were established. In the last exception which we have...