Steltemeier v. Barrett.

• Court: Missouri Court of Appeals
• Writing for the Court: Reynolds
• Citation: Steltemeier v. Barrett., 122 S.W. 1095, 145 Mo. App. 534 (Mo. App. 1909)
• Decision Date: 16 November 1909
• Parties: STELTEMEIER v. BARRETT.

122 S.W. 1095

145 Mo. App. 534

STELTEMEIER v. BARRETT.

St. Louis Court of Appeals. Missouri.

November 16, 1909.

1. APPEAL AND ERROR (§ 969) — DISCRETION OF TRIAL COURT — CONDUCT OF TRIAL.

The trial court has much latitude in directing the conduct of the trial, and, when the whole record shows that he endeavored to fairly conduct the trial and keep counsel within proper bounds, his discretion will not be interfered with on appeal.

2. TRIAL (§ 29) — CONDUCT OF TRIAL — REMARKS OF JUDGE — PROTECTING WITNESSES.

It is the trial court's duty to protect witnesses on examination, and, where counsel offered a part of the testimony of a witness on a former trial to show contradictions of his testimony at the present trial, it was not error for the trial judge to remark that counsel should have treated the witness fairly by reading the alleged contradictory statement to him, and asking him if he made it.

3. EVIDENCE (§ 143) — MATERIALITY.

In an action on a note in which defendant relied on receipts given for payments, the exclusion of a letter from defendant's counsel to plaintiff's counsel as to an inspection of the receipts was proper; the receipts being in evidence and subject to examination in court.

4. TRIAL (§ 211) — INSTRUCTIONS.

In an action by an administrator on a note, a requested instruction that, as defendant could not testify to any transaction with decedent showing payment, his failure to explain any matter connected with its payment should not be considered against him, was properly refused as prejudicing the plaintiff for exercising a lawful right; no comment having been made on his failure to testify thereto; Rev. St. 1899, § 4652 (Ann. St. 1906, p. 2520), providing that, where an administrator is a party, the other party cannot testify in his own favor, unless the contract in issue was made with one living and competent to testify, not authorizing such instruction.

5. PAYMENT (§ 65) — BURDEN OF PROOF.

Payment is an affirmative defense, the burden of proving which is always on defendant.

6. BILLS AND NOTES (§ 538) — INSTRUCTIONS — BURDEN OF PROOF — SHIFTING BURDEN.

In an action on a note for $1,830, executed in 1896 to a decedent, as to which defendant claimed payment and offered several receipts, defendant's second request to charge was that if the jury found that the receipts, which receipted for some $1,200 and for the money advanced to defendant in full November 8, 1897, were signed by decedent, in absence of sufficient rebutting proof, they should find that decedent had received from defendant the amounts stated

therein and plaintiff cannot recover in this action, and the rebutting proof must be clear and convincing, and his third request was that defendant claimed payment and produced receipts claimed to have been signed by decedent, and, if they were so signed, they were a complete defense, unless overcome by proof that the payments were not in fact made. Held, that the requests were erroneous as attempting to shift the burden of proof upon plaintiff.

7. BILLS AND NOTES (§ 538) — INSTRUCTIONS — MISLEADING INSTRUCTION.

The reference in the second request to rebutting proof, without explanation, would have tended to mislead the jury, and the instruction would have misled the jury to believe that the production of the receipts alone would cause the burden of proving payment to shift, and that part of it prohibiting a recovery upon finding the receipt by decedent of the sums stated in the receipts was so wrong in law that it would have misdirected the jury.

8. TRIAL (§ 244) — INSTRUCTIONS — WEIGHT OF EVIDENCE.

In an action on a note executed to a decedent in which defendant pleaded payment and produced several receipts acknowledging payment for money advanced, a requested instruction that the production of the receipts signed by decedent was a complete defense unless overcome by proof showing that the payments were in fact not made was properly refused as unduly commenting on the effect of the receipts as evidence.

9. BILLS AND NOTES (§ 499) — WEIGHT OF EVIDENCE — SHIFTING BURDEN OF PROOF.

In an action on a note executed to a decedent in which defendant pleaded payment, the production by defendant of receipts for money advanced, signed by decedent, would not of itself shift the burden of proving nonpayment onto plaintiff.

10. BILLS AND NOTES (§ 538) — ACTIONS — INSTRUCTIONS — APPLICABILITY TO ISSUES.

In an administrator's action on a note, in which defendant pleaded payment and offered several receipts for money advanced by decedent, signed by him, requested instructions to find for defendant, without finding that the payments receipted for were made on account of the note, which was the question in controversy, were erroneous.

11. APPEAL AND ERROR (§§ 994, 995) — QUESTIONS OF FACT — CREDIBILITY OF WITNESSES.

The credibility of the witnesses and weight of the evidence are matters peculiarly within the province of the trial court and jury.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Action by Frederick C. Steltemeier, administrator of Edward Doyle, against J. V. S. Barrett. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action by the administrator of Edward Doyle against defendant, appellant here, on a note which, as set out in the petition, reads as follows: "$1,830.00. St. Louis, Missouri, January 1st, 1896. Three years after date I promise to pay to Edward Doyle or order eighteen hundred and thirty no hundred dollars for value received with interest from date at the rate of seven per cent. per annum, until paid, and I agree to pay the same at maturity and same is due to Edward Doyle only. J. V. S. Barrett." The answer, after denying each and every allegation in the petition, sets out the note, admits the execution and delivery of it to Doyle, avers that the note was prepared on a printed blank form and the words, "date," "promise to pay," "or order," were printed as part of the blank form, and the words, "and the same is due to Edward Doyle only," were written by defendant, and avers that long prior to the maturity of the note he fully paid it to Doyle as well as paying to him, Doyle, all other notes he had ever made to him, and that Doyle at the time of the payment of the note was in possession of it, and that this is the only note bearing date January 1, 1896, that defendant ever made or delivered to Doyle. The answer further avers that defendant did not execute or deliver to Doyle the note described in the petition or any note of that date, save that set forth in his answer. This answer was sworn to by defendant. The reply is a general denial of the new matter. At the trial the plaintiff proved that he was the administrator of the estate of Doyle, and as such had duly qualified and taken possession of the assets of the estate. He also introduced evidence tending to prove that the note in suit had come into his possession as of the assets of the estate; that he had endeavored to collect it from defendant; that defendant had claimed that he had paid it. Plaintiff also introduced evidence tending to show how and when and by whom the note had been found among the effects of the decedent or had come to the hands of the parties who had turned it over to him, and also tending to show that defendant had made statements, and had done acts in connection with the note which it is claimed tended to contradict defendant's denial of indebtedness on the note, and, introducing the note in evidence, rested.

On part of defendant evidence was introduced tending to sustain his claim that he had paid the note, and that he owed decedent nothing on account of it, among the other evidence introduced by defendant being the receipts, which are set out in 115 Mo. App. 324, 91 S. W. 56, where the decision of this court is reported when the case was here on a former appeal. The receipts now particularly relied on by defendant are as follows:

"Received of J. V. S. Barrett, $1,235.85 for board, lodging and money advanced Oct. 8, 1900; Nov. 8, 1897. Edward Doyle."

"Received of J. V. S. Barrett the amount of money advanced to him by me in full Nov. 8, 1897. Edward Doyle."

The defendant at the trial was excluded from testifying as to transactions between himself and the decedent during the lifetime of the latter; his own testimony being confined to the narration of acts since the death of the decedent and to his transactions with the administrator and others after the death of the decedent. The witness Smidt, again testifying, the error in the admission of part of his testimony for which error, in part, the judgment was before reversed, was avoided both during this trial and by instructions. During the progress of the trial counsel for defendant offered in evidence a portion of the testimony of this witness Smidt which had been preserved in the bill of exceptions. On the court asking him what he offered it for, counsel said it was offered as contradictory of the testimony of the witness given at the present trial. Counsel for plaintiff objected to it unless all of this witness' testimony was read, whereupon the court said: "You didn't read any part of it to him, and ask him whether he made the statement or not. You asked him in a general way. You should have treated the witness fairly by reading the statement claimed he had made contradictory to his present statement. Let me see the part you want to...