Tremain v. Dyott
| Decision Date | 08 January 1912 |
| Citation | 142 S.W. 760,161 Mo.App. 217 |
| Parties | CLARA TREMAIN, Respondent, v. JOHN C. DYOTT, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Howell Circuit Court.--Hon. W. N. Evans, Judge.
AFFIRMED.
Judgment affirmed.
O. F Wayland, J. P. Swaim and M. E. Morrow for appellant.
(1) Plaintiff was incompetent under our law to testify to any fact concerning this transaction, because of the death of Geo. W. Neily, with whom plaintiff had all the transactions concerning the matters sued on in this action. Crow v Crow, 124 Mo.App. 120; Williams, Admr. v Perkins, 83 Mo. 379; Butts, Admr. v. Phelps, 79 Mo. 302. (2) After excluding plaintiff's testimony there is absolutely no evidence left to support the verdict of the court. (3) The judgment will be reversed when the action of the trial court is bound to be erroneous in respect to either of two branches of the defense. Linz v. Ins. Co., 8 Mo.App. 363. (4) The judgment will be reversed when the verdict is manifestly against the law and evidence. Ackley v. Staeplin, 56 Mo. 558. (5) Where there is no substantial evidence to support the verdict, the judgment will be reversed. Joy v. Cole, 124 Mo.App. 569; Daniels v. Railroad, 130 Mo.App. 213; Matousek v. Union, 192 Mo. 588; Spiro v. Transit Co., 109 Mo.App. 1; James v. Ins. Co., 148 Mo. 1. (6) Where the court, sitting as a jury, tried a case on a certain theory of law, the judgment cannot be permitted to stand if there is no support in the facts for the judgment. Flynn v. Wacker, 151 Mo. 545; Moore v. Railroad, 73 Mo. 438; Bray v. Kremp, 113 Mo. 552.
Green & Green for respondent.
This was an action brought on June 24, 1908, by Clara Tremain, in the Howell county circuit court against John C. Dyott, the surviving joint obligor in a bond executed to plaintiff on January 25, 1904, at Elmira, New York. The prayer in the plaintiff's petition was for $ 1,825 with interest. Upon trial before the court sitting as a jury, plaintiff was awarded judgment for $ 1,200 and interest in the sum of $ 210, making a total of $ 1,410. Defendant has appealed.
The bond sued on in this action is as follows:
(Then follows a notary's acknowledgment.)
The plaintiff copied in her petition an agreement purporting to have been entered into between herself and George W. Neily on January 25, 1904. This written agreement, which was read in evidence without objection, recites that it was entered into on said date in the state of New York, between George W. Neily of Elmira, New York, and Clara Tremain of Westfield, Pennsylvania, providing that where as Neily had purchased an undivided one-half interest in certain lands in Shannon county, Missouri, comprising some 4,130 acres, and whereas Clara Tremain desired to purchase an undivided one-third interest in said undivided one-half interest, for the sum of $ 1825, it was agreed that upon payment of said amount Neily would convey to her such an interest, and that Clara Tremain should become a joint owner in said property, she agreeing to pay her share of the expenses, attorneys' fees, taxes, and other disbursements expended by Neily in caring for or selling or retaining said property; and she therein appointed Neily her attorney to sell and dispose of said property at such a figure as he (Neily) should deem advisable, it being understood that the figure would be a fair profit over and above the expenses and purchase price; and it was agreed that in case a sale was made, she was to receive her share of the increase. This agreement was signed by George W. Neily and Clara Tremain. It is merely an agreement to convey. No deed or other evidence was introduced to show that the conveyance was ever actually made. On the contrary, it appears from defendant's testimony that he and Neily had bought the land in Shannon county over a year before the date of the execution of the bond; that they bought it through Mr. Hogan of the West Plains Bank, the price being $ 10,644.50; that he and Neily were to each pay half, but before the deal was closed Neily became involved in labor troubles in New York which tied up his accounts, and that he (Dyott) paid the entire amount and took the title in his name and that Neily never had any record title; that Neily never put any money into it until a short time before it was sold when he put in $ 2344.25; that the land was sold with Neily's consent for $ 13,000 and that he (Dyott) made the deeds. The time of the sale is not fixed, but Neily died on October 25, 1905, and it was before that time. Defendant also testified that he had paid to George W. Neily as agent of Clara Tremain the full amount of the bond, stating that after the sale was made he gave Neily one check for $ 500 and another for $ 100. The deposition of Neily's banker was read wherein it was shown that such checks were deposited by Neily to his credit.
Evidence was introduced by the plaintiff showing the law of the state of New York (where the bond sued on was executed) concerning the liability of surviving joint debtors, to meet a count in defendant's answer charging defect of parties in that the personal representatives of George W. Neily were not joined as parties defendant. The rule is, that matters bearing upon the execution, interpretation, and validity of a contract, are to be determined by the law of the place where it is made. [Hartmann v. Railway Co., 39 Mo.App. 88; Johnston v. Gawtry, 83 Mo. 339; Sallee v. Chandler, 26 Mo. 124; Phoenix Mut. L. Ins. Co. v. Simons, 52 Mo.App. 357; Kerwin v. Doran, 29 Mo.App. 397.] But matters connected with its performance are regulated by the law prevailing at the place of performance. Matters respecting the remedy, such as the bringing of suits, rules of procedure governing the trial, admissibility of evidence, and Statutes of Limitation, depend upon the law of the place where the suit is brought. [Scudder v. Bank, 91 U.S. 406, 23 L.Ed. 245, cited in Thompson v. Traders' Ins. Co., 169 Mo. 12, 68 S.W. 889; Broadhead v. Noyes, 9 Mo. 56; Dorsey v. Hardesty, 9 Mo. 157; Carson v. Hunter, 46 Mo. 467; and for a full treatment of this subject, see Ruhe v. Buck, 124 Mo. 178, 27 S.W. 412.]
The appellant's assignments of errors are as follows:
The defendant's demurrer to plaintiff's evidence having been overruled and the defendant having put in his evidence he thereby waived such demurrer. [Lohnes v. Baker, 156 Mo.App. 397, 137 S.W. 282.] So there are only two alleged errors for the consideration of this court, namely, the first and third. Under the first, the objection is leveled in appellant's argument and brief at the admission of plaintiff's deposition in evidence, defendant contending that without said deposition there is absolutely no evidence to support the plaintiff's judgment and that consequently the finding should have been for the defendant. The contention of defendant is that the plaintiff's deposition was incompetent for any purpose because of the death of George W. Neily, one of the signers of the instrument sued on, he having been the one with whom plaintiff had all her transactions, and that if said deposition...
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