Snider v. McAtee
| Decision Date | 07 May 1912 |
| Parties | JOHN A. SNIDER, Respondent, v. S. M. McATEE, Executor, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Cape Girardeau Circuit Court.--Hon. Henry C. Riley Judge.
AFFIRMED. CERTIFED TO SUPREME COURT.
Judgment affirmed.
Albert M. Spradling and T. D. Hines for appellant.
(1) When one of the original parties to the contract or cause of action in issue and on trial is dead, the other party to such contract or cause of action shall not be permitted to testify in his own favor or in favor of any one claiming under him. Angell v. Hester, 64 Mo. 142; Ring v Jamison, 66 Mo. 424; Meier v. Thieman, 90 Mo 433; Messimer v. McCray, 113 Mo. 382; Weiermueller v. Scullin, 203 Mo. 466; Griffin v. Nicholas, 224 Mo. 275. (2) The board of directors of a bank have a general superintendence over and management of all its business affairs and are bound to know all that is done, and what they ought to know as to the general course of the bank's business, they will be presumed to know. Morse on Banks and Banking (3 Ed.), sec. 116; Bank v. Hill, 148 Mo. 380; Martin v. Webb, 110 U.S. 15; Hun v. Cary, 82 N.Y. 71. (3) The law requires every man, in the possession of his intellectual faculties, to use them for his own protection and not to depend upon the courts to act as a standing guardian over his own carelessness, improvidence or credulity. Cahn v. Reid, 18 Mo.App. 127; Mires v. Summerville, 85 Mo.App. 183; Shearer & Martin v. Hill, 125 Mo.App. 375; Hendricks v. Vivion, 118 Mo.App. 417; Bradford v. Wright, 145 Mo.App. 623; Hines v. Boyce, 127 Mo.App. 718; Funding & Foundry Co. v. Heskett, 125 Mo.App. 516; Davis v. Ins. Co., 81 Mo.App. 264. (4) To be entitled to rescind a contract on the ground of fraudulent representation, the vendee must prove that false representations of material facts were made to him with the intent to deceive; that he believed them to be true; that his reliance on them was an act of ordinary prudence; and that they influenced his action. Wannell v. Kem, 57 Mo. 478; Lovelace v. Sutor, 93 Mo.App. 429; Funding Co. v. Heskett, 125 Mo.App. 516; Phelps v. Jones, 141 Mo.App. 223. (5) A promise made subsequent to the main contract and without a new consideration to support it is without consideration and cannot be enforced. Lamp Co. v. Mfg. Co., 64 Mo.App. 115; Wollman v. Loemen, 96 Mo.App. 299; Riley v. Stevenson, 118 Mo.App. 187; Lumber Co. v. Stoddard Co., 131 Mo.App. 15; Glenn v. Hill, 210 Mo. 291.
John A. Snider and Oliver & Oliver for respondent.
(1) Where one makes, as of his own knowledge, a false representation, not knowing whether it is true or false and it is relied upon, it is fraud as much as if he knew it to be false. It is the effect, not the corrupt motive, the law looks at and denounces as fraud. Leach v. Bond, 129 Mo.App. 315; Hamlin v. Abell, 120 Mo.App. 188; Nauman v. Oberle, 90 Mo.App. 666; Caldwell v. Henry, 76 Mo.App. 254; Walsh v. Morse, 80 Mo.App. 568. (2) Scienter was fully established in every one of the three ways in which it may arise: First, Quinn being cashier of the bank, made the false representation with the knowledge that it was false; second, where a party represents something to be true, as of his own knowledge, when he has no knowledge as to whether it is true or false, and it is in fact untrue; third, where the party by reason of his peculiar position has "special means of knowledge" and makes representations which he ought to have known to be false, if he did not. Serrano v. Commission Co., 117 Mo.App. 194; Bank v. Byers, 139 Mo. 627; Hamlin v. Abell, 120 Mo. 188, Raley v. Williams, 73 Mo. 310. (3) A plaintiff in an action to recover a claim against an estate is a competent witness in reference to conversations with him in regard to the matter in controversy after the death of the deceased. More v. Renick, 95 Mo.App. 202. The statute relating to one party testifying when the other is dead, limits its prohibition to the living party testifying in his own favor or the favor of his assignee, nor does the statute disqualify the living party as a witness concerning things about which he has no interest even though the other party is dead. Thompson & Thompson v. Brown, 121 Mo.App. 524. (4) The natural presumption is, that one not a party to the suit is not a party in interest, and where there is direct testimony supporting that presumption and only inferential testimony hinting at a different state of facts, the presumption so supported must obtain. On the assumption that the witness Sperling was interested in this suit of John A. Snider v. Estate of Quinn, the law is that an interest in the result does not exclude the witness or affect his competency. It may affect his credibility. R. S. 1899, sec. 4652; Looker v. Davis, 47 Mo. 140; Poe v. Domich, 54 Mo. 119; Klosterman v. Loos, 58 Mo. 290; Angell v. Hester, 64 Mo. 142; Reed v. Painter, 145 Mo. 353; Jackson v. Smith, 139 Mo.App. 691. (5) Interest as a disqualification is totally abolished by the first clause of section 4652, Revised Statutes 1899, and it is not restored by the proviso. Jackson v. Smith, 139 Mo.App. 691; Weiermueller v. Scullin, 203 Mo. 466. (6) A declaration against one's interest or admissions of the existence of an obligation are admissible, even though declarant be since deceased, is elementary. 2 Wigmore on Evidence, sec. 1456; Wynn v. Corey, 48 Mo. 346; Moore v. Rennick, 95 Mo.App. 202; Jones v. Thomas, 218 Mo. 543.
This proceeding originated in the probate court and involves the allowance of a demand against the estate of Hugh R. Quinn, deceased, arising out of the sale of twenty-two shares of bank stock by Quinn to plaintiff. The finding and judgment were for plaintiff in both the probate and circuit court, to which the case was taken on appeal, and from the judgment of the latter court defendant appeals here.
It appears that Hugh R. Quinn in his lifetime owned considerable stock in the Exchange Bank of Jackson, Missouri, and was its cashier. About sixteen months before plaintiff purchased the twenty-two shares of stock from Quinn, he was elected a director of the bank and was vice president thereof on the date of the purchase. Quinn, desiring to sell sixty-five shares of the stock owned by him, submitted a proposition to plaintiff, B. S. Schwab and Blucher Sperling to that effect. After considering the matter, plaintiff purchased twenty-two shares of the stock at $ 150 a share. Mr. Sperling purchased twenty-three of the shares and Mr. Schwab the remainder, all at the same price. Mr. Quinn having subsequently died, plaintiff filed the demand involved here for $ 1100, or fifty dollars per share, against his estate, by which he seeks to recover this amount and interest thereon, on the theory that, through misrepresentation, Quinn induced him to pay fifty dollars per share more than the stock was worth at the time of purchase. When the contract of purchase was entered into, plaintiff, Sperling and Schwab were present and negotiated with defendant concerning the sale of stock to each. Sperling was introduced as a witness for plaintiff and gave testimony tending to support his claim. Indeed, Sperling is the only witness who testified in the cause and his evidence stands uncontroverted in the record.
The first point urged for a reversal of the judgment goes to the effect that, in view of the subsequent death of Quinn Sperling was an incompetent witness, for it is said there was but one contract made between Quinn, Sperling and Schwab for the sale of the stock and that they subsequently divided it. The record by no means justifies this conclusion. Indeed, the evidence is plain and positive to the contrary. Sperling testifies that all three of the parties purchased the stock at the same time from Mr. Quinn on September 4th and that each purchaser paid $ 150 per share for the stock so purchased. It is true that all the parties were together at the time, and negotiated the contract of purchase with Quinn, but it appears beyond question that each acted for himself. While Mr. Quinn sold the sixty-five shares of stock at the same time to the three purchasers mentioned, he dealt with each individually in so doing, for it conclusively appears that each party purchased directly from him on his own individual account and paid the purchase price. In other words, plaintiff and Schwab and Sperling did not jointly purchase the stock from Quinn and afterwards divide it among themselves but each then and there purchased for himself. The statute (Sec. 6354, R. S. 1909) provides that in actions where one of the original parties to the contract or cause of action in issue and on trial is dead, or is shown to the court to be insane, the other party to such contract or cause of action shall not be admitted to testify either in his own favor or of any other party to the action claiming under him. The inhibition above quoted is without influence here, for the witness Sperling is in no sense a party to plaintiff's cause of action or to the contract by which plaintiff acquired title to the twenty-two shares of stock which he purchased. Plaintiff did not acquire title through Sperling or through any contract by which they jointly purchased the stock, for each party individually purchased from Quinn and paid for a certain number of shares of stock. Neither is plaintiff's right derived in any sense through Sperling, the witness, but on the contrary it arises from his individual contract of purchase entered into with Quinn in the presence of Sperling and Schwab. Obviously the witness Sperling was competent to speak of the contract made in his presence by plaintiff and Quinn. [See Thompson v. Brown, 121 Mo.App. 524, ...
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