Trustees, La Grange Male and Female College v. Parker

• Decision Date: 05 February 1918
• Docket Number: No. 14911.,14911.
• Citation: 200 S.W. 663,198 Mo. App. 372
• Parties: TRUSTEES OF LA GRANGE MALE AND FEMALE COLLEGE AT LA GRANGE v. PARKER.
• Court: Missouri Court of Appeals

200 S.W. 663

198 Mo. App. 372

TRUSTEES OF LA GRANGE MALE AND FEMALE COLLEGE AT LA GRANGE v. PARKER.

No. 14911.

St. Louis Court of Appeals. Missouri.

Submitted January 7, 1918.

Opinion filed February 5, 1918.

Appeal from Circuit Court, Lewis County; Chas. D. Stewart, Judge.

Claim by Trustees of La Grange Male and Female College at La Grange against Judson E. Parker, administrator of the estate of H. C. Parker, deceased. From a judgment for the administrator, the claimant appeals. Affirmed.

H. H. Howard and A. F. Haney, both of Canton, and Hilbert & Henderson, of Monticello, for appellant. Carroll Bozarth, of La Grange, H. S. Rouse, of Monticello, and E. R. McKee, of Memphis, for respondent.

REYNOLDS, P. J.

Plaintiff, appellant here, exhibited to the probate court of Lewis county a note for allowance against the estate of one H. C. Parker, deceased, that estate then being in the course of administration and in charge of Judson Parker, administrator. The note exhibited is as follows:

                             "Endowment Note
                "$1,000.      Ewing, Missouri, June 7, 1912
                

"For value received and as a subscription to the Endowment Fund of La Grange College, located at La Grange, Mo., I promise to pay to the trustees of said

                              La Grange College
                the sum of One Thosand Dollars
                

"Said sum to be paid out of my estate twelve months after my death, with interest from date at the rate of one per cent. per annum.

"Without relief from valuation or appraisement laws, and to be used as part of the endowment fund of said institution, the interest only to be used for current expenses.

                                     "[Signed] H. C. Parker
                "Attest: J. D. Scott."
                

The claim was originally presented in the name of "Trustees of La Grange College of La Grange, Missouri, a corporation." From a judgment of the probate court disallowing the claim the trustees of the college appealed to the circuit court. There they were allowed to amend the claim and the proceedings in the probate court, then in the circuit court, by substituting the name "Trustees of La Grange Male and Female College," substituting that name for "Trustees of La Grange College," where that name appeared.

The only pleading on the part of the defendant administrator is an affidavit by him denying the corporate capacity of the plaintiff and denying that the claimants are the trustees properly elected or appointed. The case was tried in the circuit court on the appeal without any pleading other than the above on the part of the defendant, but evidently tried on the ground of nul tiel corporation and of want of any consideration for the note.

At the trial in the circuit court, the amendment having been made in the title above stated, plaintiffs introduced the note in evidence, it being admitted that it bore the signature of H. C. Parker. They also introduced the Session Acts of 1858, p. 52, providing for the incorporation of La Grange College under the name of La Grange Male and Female College of La Grange, and an amendment to the act of incorporation, approved January 16, 1860 (see Laws 1859-60, p. 131), the amendment consisting of dividing the board of trustees of the college into three classes. It was in evidence and undisputed that while the corporate name was La Grange Male and Female College of Lewis County, or at La Grange, that the institution was commonly known as La Grange College.

Plaintiffs then undertook to prove consideration for the note. The evidence tended to show that one J. D. Scott, who had signed as a witness to the note, had been getting up subscriptions to the endowment fund of the college and that he had delivered this note to the board of trustees of the college. When that delivery was made does not appear. Under cross-examination of plaintiffs' witnesses the question of consideration was entered into, and of this it may be said, without repeating it, that the treasurer of the corporation testified that he did not remember any consideration ever having passed for the note; that his records and his recollection did not show that Parker, the maker of the note, had ever paid anything on account of it. Asked if the note was evidence of a donation made by the deceased to the college, the most that the treasurer was willing to say was that the note had been brought to him by Mr. Scott, who was authorized to obtain money for the college and to receive donations for the college. But this witness, who had been treasurer during the whole time, asked if the college had ever paid Parker anything in consideration for the note, said, "Not in my remembrance." Asked if he had any record of paying him anything, he answered, "Not that I know of;" and asked if he remembered that he, as treasurer, had ever paid any money to Parker for the college, he answered that he did not think he did, and admitted that in his deposition, which had been taken in the case, he was asked if the note was a donation, to which he answered that it was, and that, as he remembered, it was a donation to some fund.

With this testimony and what may be called negative testimony of a professor, possibly, now, certainly at one time president of the college, to the effect that he knew nothing at all about the transaction, plaintiffs rested, defendant introducing no testimony.

The cause was tried before the court without a jury and at the instance of the plaintiffs the court gave three declarations of law. The first was to the effect that the note in question upon its face imports a consideration therefor and that the burden of proof was upon the defendant to show that the note is without any consideration, and that unless it is proven by evidence introduced in the case that the note is without consideration, the finding of the court must be that there was a consideration for the note.

The court refused the second declaration asked by plaintiffs, which was to the effect that the evidence in the case failed to prove that the note in controversy is without consideration, and the finding of the court is therefore that the note is supported by a consideration.

There was a finding and judgment for defendant, from which plaintiffs have duly appealed.

We find no serious objection to any of the declarations given nor to the action of the court in refusing the second asked.

While the defendant introduced no evidence, it may be said that the evidence elicited from plaintiffs' own witnesses fails to show any consideration for the note.

In a case of this kind the substantial and most important controversy is whether, under the evidence, any consideration for the note sued upon is shown, and it may be said that plaintiffs' own evidence, developed on cross-examination and in no way contradicted in the direct testimony, made it clear that the maker of the note...