Seligman v. Rogers
Decision Date | 31 January 1893 |
Citation | 113 Mo. 642,21 S.W. 94 |
Parties | SELIGMAN et al. v. ROGERS. |
Court | Missouri Supreme Court |
Appeal from St. Louis circuit court; Daniel Dillon, Judge.
Action by J. & W. Seligman & Co. against Mary S. Rogers, executrix of the estate of C. W. Rogers, deceased. From a judgment for defendant, plaintiffs appeal. Affirmed.
John O'Day and E. W. Banister, for appellants. Boyle, Adams & McGeighan, for respondent.
This suit originated in the probate court of the city of St. Louis, in December, 1887. It is founded upon the following demand, exhibited against the estate of C. W. Rogers, deceased:
Judgment was rendered for the plaintiffs in the probate court, without interest. Both sides appealed to the circuit court of St. Louis. It was there tried before a jury. After the jury was impaneled, the defendant, through her counsel, raised the question that this account did not state a cause of action — First, that if it stated a cause of action for stock sold by plaintiffs to the decedent, of which plaintiffs were the owners, then the sale was void, under the statute of frauds; and, second, that if it was intended to offer evidence that plaintiffs had loaned the money to pay for the stock for the use of decedent, then the account was not sufficient to authorize evidence of money loaned. Thereupon the plaintiffs stated they did not expect to show a sale of their own stock to deceased, Mr. Rogers, but they would show that they advanced $16,000 for him to pay for 1,000 shares of Atlantic & Pacific Railroad stock, at his request. Upon this statement, defendant objected to any evidence, on the ground that the account filed did not state a case for money advanced to the use of or loaned to C. W. Rogers. The circuit court overruled the objection, and defendant excepted. The plaintiffs offered evidence tending to prove that they advanced $16,000 for C. W. Rogers to pay for 1,000 shares of Atlantic & Pacific Railroad stock; that he was present in their office in New York, and one of the firm said to him, in the presence of witness Kavanaugh, that they had assigned 1,000 shares of syndicate stock, and would carry it for him, and that he assented to it.
1. The first assignment of error on the part of the plaintiffs is that the court below erred in not setting aside the verdict of the jury, and rendered judgment for plaintiffs. This is based upon the claim that there is no evidence whatever upon which the verdict for the defendant can stand. In this we cannot agree with the learned counsel. The defendant was entitled to a jury trial. The burden of proof was on the plaintiffs, and the defendant was entitled to have the jury pass upon the credibility of plaintiffs' witnesses. The courts may grant new trials when they are satisfied the jury have ignored the evidence, but it is not their province to usurp the function of another jury. This point cannot be sustained.
2. The plaintiffs offered the account books of the Atlantic & Pacific Railroad Stock Syndicate, and of J. & W. Seligman & Co., to show certain entries therein, — the first to show that C. W. Rogers was a member of the syndicate, and the firm books to show that they had charged Mr. Rogers with the $16,000, in due course of business. The trial court excluded the books, on the ground that, Capt. Rogers being dead, plaintiffs would not be allowed to testify for themselves by their books. It has very recently been decided by division No. 1 of this court, in Milling Co. v. Walsh, 18 S. W. Rep. 904, that an account book of original entries, fair on its face, and shown to have been kept in the usual course of business, is admissible in evidence, even in favor of the person by whom it is kept. Judge Black, in that case, reviewed the authorities in this state, and we concur in the conclusion he reached; and we think the books offered were competent, but it does not necessarily follow that this case should be reversed on that account. On the trial, Henry E. Kavanaugh was sworn on behalf of the plaintiffs, and testified that he was a clerk in the banking house of J. & W. Seligman & Co.; that he knew Capt. C. W. Rogers 8 or 10 years prior to his death; that he (Rogers) was on intimate terms with said banking house; he was general manager of the St. Louis & San Francisco Railroad; that the New York office of said railroad was in the same building with the bank. Jesse Seligman, one of the firm, was also a director in the Atlantic & Pacific Railroad Company. On page 32 of the printed record, Kavanaugh testified, without objection, that he was present when Mr Seligman said to Capt. Rogers he would put him down for 1,000 shares, and directed him (witness) to so enter it on the books. He was asked if he made the entries himself, and he answered he did, in pursuance of Mr. Seligman's instructions. He was then asked: As to the syndicate books this evidence was admitted: This testimony was received without objection, and here we have the specific item charged against Capt. Rogers. Again, on pages 34, 35, 36, and 37 of the printed record, the following evidence was given and received, without objection: ...
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