Short v. White

• Decision Date: 20 November 1939
• Docket Number: No. 19515.,19515.
• Parties: EMMA JEAN SHORT, APPELLANT, v. S.A. WHITE ET AL., RESPONDENTS.
• Court: Missouri Court of Appeals

133 S.W.2d 1039

EMMA JEAN SHORT, APPELLANT, v. S.A. WHITE ET AL., RESPONDENTS.

No. 19515.

Kansas City Court of Appeals, Missouri.

November 20, 1939.

Appeal from the Circuit Court of Howard County. — Hon. Aubrey R. Hammet, Judge.

REVERSED AND REMANDED.

Clark, Boggs, Peterson & Becker and Howard B. Lang, Jr., for appellant.

(1) The court erred in refusing to give appellant's instruction numbered 1, and erred in refusing to direct a verdict for appellant at the close of all the evidence in the case, because (a) The principal maker of the note and the two sureties testified positively that the $1,250 note, for which the note in suit is a renewal, was unpaid at the date of the execution of the present note, and respondents were bound by this testimony, regardless of any other evidence tending to prove payment. Behen v. St. Louis Transit Co., 186 Mo. 430, l.c. 440-441, 85 S.W. 346; McCoy v. Home Oil and Gas Co. (Mo. App.), 60 S.W. (2d) 715, l.c. 724; Paetz v. London Guarantee and Accident Co., Ltd. (Mo. App.), 71 S.W. (2d) 826, 1. c. 828. (b) There is no competent evidence in the record to sustain the plea that the $1,250 note was paid at the date of the execution of the present note and the note sued upon is without consideration and void. (c) There is no evidence in the record to sustain the plea that the $1,250 note was paid at the date of the execution of the present note and the note sued upon is without consideration and void. Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W. (2d) 644. (2) The court erred in admitting in evidence respondents' Exhibits B to Z because the same, purporting to be records of the Jacksonville Savings Bank, were not properly authenticated so as to entitle them to be admissible in evidence. 20 Am. Jur., p. 945, sec. 1085; 22 C.J., p. 864; Bedwell v. Capitol Mut. Ass'n (Mo. App.), 66 S.W. (2d) 155; Kirkpatrick v. American Creosoting Co., 225 Mo. App. 774, 37 S.W. (2d) 996; Gordon & Koppel Clothing Co. v. N.Y. Central R. Co. (Mo. App.), 285 S.W. 755; State Bank of Pike v. Brown, 165 N.Y. 216, 53 L.R.A. 513, l.c. 521. (3) The court erred in permitting the witness, Mrs. Bula Holcomb, to testify as to the contents of respondents' Exhibits B to Z, because she did not make the records and had no personal knowledge of them. Gordon & Koppel Clothing Co. v. N.Y. Central R. Co. (Mo. App.), 285 S.W. 755; Kirkpatrick v. American Creosoting Co., 225 Mo. App. 774, 37 S.W. (2d) 996; State Bank of Pike v. Brown, 165 N.Y. 216, 53 L.R.A. 513. (4) This cause should be reversed with directions to the trial court to enter a judgment for the amount found to be due upon the note at the date of the entry of judgment. Home Trust Co. v. Josephson, 339 Mo. 170, 95 S.W. (2d) 1148, 105 A.L.R. 1063; Rolla Special Road District of Phelps Co. v. Phelps County (Mo.), 116 S.W. (2d) 61, l.c. 64; Monroe v. Chicago & A.R. Co., 297 Mo. 633, 249 S.W. 644, l.c. 647; Steele v. Ry., 265 Mo. 97, l.c. 116, 175 S.W. 177, l.c. 181.

A.W. Walker and Hulen & Walden for respondents.

(1) The court did not err in admitting Exhibits "B" to "Z," inclusive, same being records of the Jacksonville Savings Bank. State of Washington ex rel. v. Superior Court, 187 Pac. 358, 9 A.L.R. 162; Culver v. Marks, 23 N.E. 1086, l.c. 1089-1090; Robinson v. Smith, 111 Mo. 205; Anchor Milling Co. v. Walsh, 108 Mo. 277; 10 R.C.L., secs. 373-383, pp. 1174-1175; 20 Am. Jur. 1086; 5 L. Ed., U.S. Sup. 628; Oliver v. Phelps, 20 N.J. Law 180; Bentley v. Bentley, 185 Mo. App. 593, 178 S.W. 486; Gubernator v. Rettalack, 86 Mo. App. 184, l.c. 188; St. Louis R.R. Co. v. Murphy, 60 Ark. 333; Merchants' Bank of Macon v. Rawls, 7 Ga. 191. (a) The objection interposed by appellant was not sufficient to raise the question of the admissibility of Exhibits "B" to "Z," inclusive. Gubernator v. Rettalack, 86 Mo. App. 184, l.c. 188. (b) The Exhibits "B" to "Z" were admissible as a part of the res gestae. Gubernator v. Rettalack, 86 Mo. App. 184, l.c. 188; Missouri Electric Light & Power Co. v. Carmody, 72 Mo. App. 541; Borgess Investment Co. v. Vette, 142 Mo. 560; Walser v. Wear, 141 Mo. 443. (c) The facts as contained in Exhibits "B" to "Z," having been established by other and additional evidence, and evidence which is undisputed, it was not prejudicial to admit said exhibits, since the evidence contained therein is purely cumulative and corroborative of additional competent evidence on the same issue. Crook v. Tull, 111 Mo. 283; Johnson v. Colton, 127 Mo. 473; Gibbs v. Haughowout, 207 Mo. 384; Diggs v. Henson, 180 Mo. App. 384; Allen v. Forsythe, 160 Mo. App. 262; Hartpence v. Rogers, 143 Mo. 623; Shouse v. Dubinsky, 38 S.W. (2d) 530, l.c. 534; Southern Com. Bk. v. Slattery, 166 Mo. 620. (2) The respondent, S.A. White, was entitled to have the money paid to the said Olive M. Brown, even if not sufficient to pay all of his indebtedness, applied as a credit upon the note in suit. Estes v. Fry, 166 Mo. 70. (3) The court did not err in refusing appellant's instruction No. 1, in the nature of a directed verdict. Moller-Vandenbloom Lumber Co. v. Bondereau, 85 S.W. (2d) 141, l.c. 147; State ex rel. City of St. Charles v. Haid, 325 Mo. 107, 28 S.W. (2d) 97; Knight v. Wabash Ry. Co., 85 S.W. 392; Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W. (2d) 644, l.c. 647.

KEMP, J.

This is a suit by appellant upon a promissory note, in the principal amount of $2198, dated June 7, 1931, and due one year after date. The separate answer of defendants S.A. White and Ethel White admitted that they executed the note, but alleged that the note was executed and delivered to the payee, Olive M. Brown, in renewal of a former note in the principal amount of $1250, made by them to the said Olive M. Brown in 1921, and that the sole consideration of the note sued upon was said original note. Their separate answer further alleged that the original note was fully paid prior to the execution of the renewal note sued upon, and that said note sued upon was without consideration.

The separate answer of the defendants J.T. White and H.C. White admitted that they signed the note sued upon as sureties for the defendants S.A. White and Ethel White, but upon information and belief alleged that the note sued upon was executed in renewal of a former note made by defendants S.A. White and Ethel White in 1921, and that "said former note was fully paid prior to the execution of the note sued upon, and said note sued upon is wholly without consideration and invalid."

The trial of the case before a jury resulted in a verdict in favor of the defendants (respondents) and judgment was entered accordingly, from which judgment plaintiff prosecutes this appeal.

About June 7, 1931, Mrs. Brown advised the respondents that their note for $1250, executed in 1921, was about to become barred by the Statute of Limitations, and requested them to execute a new note in renewal thereof in the sum of $2198, representing the unpaid principal of the original note plus the accrued interest thereon. Complying with this request, the note in suit was executed. Soon thereafter, the exact date not appearing, Mrs. Brown delivered the note to her daughter, who is plaintiff herein, without endorsement, but subsequent to maturity thereof and on or shortly after October 8, 1932, she endorsed the note in blank without recourse.

Following the institution of the suit, and approximately a month before the trial, plaintiff (appellant) took the depositions of respondent S.A. White and of the accommodation makers, J.T. White and H.C. White. In the deposition of S.A. White, he testified that some time prior to June 7, 1931, he was indebted to his sister on a note for $1250 with accrued interest, which was signed by his wife and two brothers as sureties; that the note was about to become barred by the Statute of Limitations and that his sister, Mrs. Brown, requested a new note and that, on June 7, 1931, in compliance with this request, he and his wife and two brothers executed the note in suit as a renewal note for the $1250 with accrued interest. He did not himself compute the interest but took his sister's word that the computation was correct, and stated that if the interest was figured correctly on the original note, that he, at the time of the execution of this note, owed Mrs. Brown the $2198 named therein.

"Q. And you were satisfied on June 7, 1931, with the computation of interest after giving you credit for the interest payment, leaving a balance due of $2198, and you signed it feeling that way? A. Yes, sir."

He also testified in his deposition that there was a sum of $200 due from Mrs. Brown to him on some cattle trade, and that on May 26, 1932, he directed this sum to be applied on this note, and admitted that he had made no payment on the note other than the $200 credit due from the cattle transaction. The credit of $200, under date of May 26, 1932, was endorsed on the note.

Upon trial of the case, respondent S.A. White was asked to relate the discussion had between him and Mrs. Brown at the time of the execution of this renewal note.

"Q. I will get you to state if at the time you executed this note June 7, 1931, you had a discussion with Mrs. Brown concerning your obligations to her and your wanting to have a settlement. A. Yes, sir.

"Q. What was that discussion? A. Well, I just couldn't recall it word for word.

"Q. Well, in substance what was it that was said by you and by her at the time this note was signed? A. Well, she said that the note was about out. I said, `Let's figure up and get this note out of the way.' I said `I have something coming and you owe me.' And she said, `Emma Jean (plaintiff herein) has got it,' and she said, `You give me a new note and we will get it fixed up.'"

None of the other defendants testified at the trial. Mrs. Brown, the payee, did not testify either by deposition or at the trial.

Respondent H.C. White, in his deposition, admitted that he executed this note as a renewal note for the original $1250...