Scott v. Scott

• Court: Missouri Court of Appeals
• Writing for the Court: Trimble
• Citation: Scott v. Scott, 265 S.W. 864 (Mo. App. 1924)
• Decision Date: 10 November 1924
• Docket Number: No. 14791.,14791.
• Parties: SCOTT v. SCOTT.

265 S.W. 864

SCOTT v. SCOTT.

No. 14791.

Kansas City Court of Appeals. Missouri.

November 10, 1924.

1. Appeal and error 1002—Verdict on conflicting evidence not disturbed on appeal.

Verdict on conflicting evidence cannot be disturbed on appeal.

2. Partnership 47—Deeds, purporting to convey land from defendant to decedent offered to show partnership, held properly excluded.

Deeds, purporting to be from defendant to decedent conveying land, offered to show existence of partnership, were properly excluded, where nothing was said therein about a partnership, and no showing was made that deeds were ever delivered or that grantee had any knowledge of them.

3. Partnership 47—Acts and declarations of of partners not admissible until prima facie case made that partnership exists.

Until at least a prima facie case is made that a partnership exists, acts and declarations of one of partners are not admissible.

4. Partnership 47—Letter head showing decedent as partner of defendant held properly excluded.

Court properly excluded a letter head offered to show decedent's connection with defendant as a partner, where there was no showing that decedent had anything to do with or knew of it.

5. Witnesses 159(12)—Defendant's offer as a witness to prove existence of partnership with decedent held properly excluded.

Defendant's offer as a witness to prove that a partnership existed between him and decedent was properly refused; defendant not being competent witness, in view of Rev. St. 1919, § 5410.

6. Witnesses 183—Offer of disqualified witness may be properly excluded, though not disqualified for all purposes.

Though the surviving party to a claimed transaction may not be disqualified as a witness for all purposes, yet, if the offer discloses a purpose to violate the reason of the rule of Rev. St. 1919, § 5410, the offer should be excluded.

7. Trial 253(8)— Instruction ignoring entirely question of any payment made on debt held properly refused.

Defendant's instruction embodying proposition that if loan was made to defendant in 1915, cause of action was barred, thus ignoring entirely question of any payment made in 1918, was properly refused, court properly instructing on question of limitation in another instruction.

8. Partnership 258(8)—Burden of establishing that loan was paid in purchase of partnership interest held on defendant.

Where defendant's answer admitted that plaintiff's decedent had paid defendant loan sought to be recovered, and evidence showed that it was paid at defendant's request, burden of establishing affirmative defense that it was paid in purchase of a partnership interest was on defendant.

Appeal from Circuit Court, Grundy County; L. B. Woods, Judge.

"Not to be officially published."

Action by Effie Scott, administratrix, against 0. L. Scott. Judgment for plaintiff, and defendant appeals. Affirmed.

A. L. Kinney, of Green Forest, Ark., and Lesley P. Robinson, of Trenton, for appellant.

R. E. Kavanaugh, of Trenton, for respondent.

TRIMBLE, P. J.

The administratrix of the estate of Walter J. Scott, deceased sued to recover, with 6 per cent. interest, the amount due upon a loan of $3,600, alleged to have been made in the year 1915 by decedent to defendant, less a credit of $225, which is alleged to have been paid thereon by defendant in the year 1918.

The defendant, a nephew of decedent, in his answer conceded that the $3,600 was received by him from decedent; but set up that a partnership in the mill and lumber business in Arkansas was entered into by them, and that the $3,300 was paid in purchase from defendant of a one-half interest thereof. The answer further pleaded the five-year statute of limitations (section 1317, R. S. 1919) as a bar to the action; defendant's contention in the evidence being that the so-called credit of $225 was made in the year 1917 instead of 1918. As this suit was instituted September 22, 1922, the date this alleged credit was made is a decisive issue on the question of limitation.

The question of whether the transaction between the uncle and nephew was a loan or merely the purchase of a one-half interest in the defendant's lumber business in Arkansas so as to create a partnership between them, and also the question of whether the credit of $225 was paid in 1917 or 1918, as governing the question whether the cause of action was or was not barred, were duly submitted in the instructions, and the jury found for plaintiff. The defendant appealed.

Defendant contends that his demurre...