Singleton ex rel. Gibbs v. Mann

• Decision Date: 31 August 1834
• Citation: 3 Mo. 464
• Parties: SINGLETON, TO THE USE OF GIBBS, v. MANN, ADMINISTRATOR OF ALLEN.
• Court: Missouri Supreme Court

3 Mo. 464

SINGLETON, TO THE USE OF GIBBS,

v.MANN, ADMINISTRATOR OF ALLEN.

Supreme Court of Missouri.

August Term, 1834.

APPEAL FROM THE CIRCUIT COURT OF MARION COUNTY.

M'GIRK, C. J.

An action of debt was brought by Singleton to the use of Gibbs, against the administrator of Allen. The defendant pleaded payment; verdict and judgment were given against him, and he appealed to this court. On the trial the plaintiff gave in evidence his bond, and there closed his testimony; the defendant then moved the court to instruct the jury, that unless the plaintiff had proved to them by other evidence than the mere possession and production of the bond, that Gibbs was the owner of the bond, the plaintiff could not recover, which was refused.

The question raised is a narrow one. It is argued that Gibbs is the real owner of the bond, and the real plaintiff, and as he claims to have the right to the money he must show his claim is true. In this case Gibbs was the possessor of the bond.

That possession, prima facie, gave him a right to receive the money from the obligor, if he chose to pay it. This possession also gave him the power to sue for the money in the name of the obligee, and to prosecute and defend such suit; all the defendant has a right to demand, is that the suit and recovery should be such that he might plead it in bar to a future action. In this case, the suit is in the name of the obligee; a recovery in his name would undoubtedly protect him against a future recovery on the same note, for the suit would be brought in the name of an assignee, or the obligee.

It is not for the defendant to object, that the obligee has seen fit to put this note into the hads of another and permit him to sue for the money to his use; he has nothing to do with that. The possession of the note is evidence enough of the fact that Gibbs has a right to control the suit and receive the money.^(a)

The defendant then entered on his defense: he offered a receipt in evidence, which went to show payment of the whole note, made by the wife of the administrator before her marriage with him; which payment purported to be made to one Hamilton, of whom Gibbs purchased the note, and before Gibbs became the owner. The evidence with regard to this receipt was, that on the 21st day of March, 1831, one Mitchell was called on by Hamilton to make out an invoice of goods of Hamilton to be sold to Singleton, and that the note sued on was to be taken as part payment for the goods; he did so, and the witness thinks on the 24th the invoice was completed, the goods delivered, and the note handed over to Hamilton, and that Hamilton left the country on the 27th with a drove of horses. The receipt bore date the 19th of March. The defendant introduced a witness who swore that he had frequently seen Hamilton write, and that he believed the signature to the receipt was his. Other witnesses were introduced on both sides, about equal in number, to prove and disprove the hand writing to the receipt; among others, the administrator Mann was introduced without objection, who swore, that before his intermarriage with Pamelia Allen, and before he took out letters of administration, he was called on by the said Pamelia to write a receipt for her, which he did, and he wrote the one offered in evidence; that Hamilton was then at the house of the widow Allen, and told her to prepare the receipt and he would sign it; that Hamilton and Pamelia had a long settlement of the debts of Hamilton to the estate of her deceased husband. Hamilton said he would return in a few days, and sign the receipt when she had prepared it; that Hamilton did return in two or three days after the receipt was written, and asked if the receipt was written and ready; that Hamilton and Pamelia went into the dining-room; that Pamelia came into the bar-room where witness was then attending to some persons; that she took out an ink-stand, borrowed some money from him, and re-entered the room. In a short time the parties came out, and Hamilton observed that they had settled, and that he had signed the receipt against the bond. Witness also says, the receipt was dated on the day it was written, and that from his knowledge of the hand writing of Hamilton, having frequently seen him write, he believed the signature to be his. He did not see Hamilton sign the receipt, his attention being called to the guests who entered into the room. Witness was at this time a bar-keeper to Pamelia Allen, the widow of Samuel Allen, the maker of the bond. It was also proved that at this time, Pamelia, the widow, was the sole devisee of Samuel Allen, deceased.

One Turgell swore that he heard Singleton say, that he took Hamilton to Mrs. Allen before the bond became due, and told her that he had transferred the bond to Hamilton, and that she was authorized to pay the money to him; when this was done the witness does not say. This man's testimony was impeached by a witness, who swore that some of the neighbors thought him a bad man, and others did not.

One Crocker swore, that in December, 1831, or January, 1832, the widow showed him the receipt in question, but folded the date and signature under. He told her, in reference to some...