Smith v. Witton

• Decision Date: 30 April 1879
• Citation: 69 Mo. 458
• Parties: SMITH v. WITTON, Executor of Callis, Appellant.
• Court: Missouri Supreme Court

69 Mo. 458

SMITH

v.WITTON, Executor of Callis, Appellant.

Supreme Court of Missouri.

April Term, 1879.

Appeal from Pike Circuit Court.--HON. G. PORTER, Judge.Elijah Robinson for appellant.

E. T. Smith for respondent.

NORTON, J.

This case was appealed from the probate court, and is a suit on a note of which the following is a copy, to-wit:

($100.) One day after date, I promise to pay F. J. Elgin $100 for value received of him, without defalcation or discount, bearing ten per cent. from date, and if the interest is not paid to bear the same rate of interest. This 4th day of June, 1866. (Seal.) F. J. CALLIS. On which note was the following indorsement: For value received I assign the within note on F. J. Callis to H. S. Smith, this 4th day of June, 1875.

F. J. ELGIN.

Upon a trial of the same in the Pike county circuit court plaintiff obtained judgment, from which defendant has appealed to this court, and assigns for error the action of the court in receiving improper evidence, in giving improper and refusing proper instructions.

It was admitted by plaintiff, on the trial, that the signature to the note was not in the handwriting of Callis; and to prove its execution, the court, over the objection of defendant, allowed witness, Elgin, to testify as follows: I am a brother of F. J. Elgin. F. J. Callis came to my house in the spring of 1866, and asked me if I could loan him $100. I told him I could not, and he asked me if I knew where he could get it, and I told him he could get it from my brother. He asked me why I thought so, and I told him because my brother had just sold his wheat crop, and I thought he had the money. I was plowing corn at the time Callis came to my house to borrow the money. After we ate dinner, we (Callis and I) sat down and played a game of cards for amusement, and about 3 o'clock in the afternoon Callis left my house and said he was going to my brother's. Callis returned to my house next morning, and I asked him what luck he had, and he replied, “first rate; he fixed me up all right. I could have gotten $200 if I had wanted it. I gave him my note and have ten years to pay it in.” Callis then took the money out of his pocket and said, “I have counted you twice and now I will count you again,” and he counted the money, and as he counted it over, I counted it also, and there was $100 of it. Another witness was permitted to testify as follows: I know F. J. Elgin and knew F. J. Callis in his life-time. In 1872, I went to Callis' house and stayed over night, and he and I were talking about his (Callis') business, and he said he was owing some little debts, and he was going to sell off his property and wind up his business and pay what he owed. He asked me how Elgin was getting along, and I told him very well, I supposed; and he said he owed Elgin $100, and Elgin held his note, and had held it for a long time, and that he ought to have paid it.

The evidence thus received is objected to on the ground that it did not tend to prove the execution of the note. When the execution of a note in suit is...