Wallace v. Jecko

• Decision Date: 05 April 1887
• Citation: 25 Mo.App. 313
• Parties: NATHAN D. WALLACE ET AL., Respondents, v. FRANCIS J. JECKO, Appellant.
• Court: Missouri Court of Appeals

25 Mo.App. 313

NATHAN D. WALLACE ET AL., Respondents, v. FRANCIS J. JECKO, Appellant.

Court of Appeals of Missouri, St. Louis.

April 5, 1887

APPEAL from the Mississippi County Circuit Court, J. D. FOSTER Judge.

Reversed and remanded.

J. B DENNIS, for the appellant: The defendant testified that the contract for shipment of meal to the plaintiffs was made with their " traveling agent." That agent was a competent witness, and the exclusion of the defendant's testimony, even if made with the plaintiffs themselves, could not be sustained either by reason or authority. Williams v. Perkins, 83 Mo. 379; Nugent v. Curran, 77 Mo. 323; Amonett v. Montague, 75 Mo. 43; Fulkerson v. Thornton, 68 Mo. 468; Klostermann v. Loos, 58 Mo. 290.

CANTWELL with WAIDE & BOONE, for the respondents: Elisha H. Fairchild, one of the original parties to the contract, being dead, and his administrator being a party to the suit, the defendant, F. J. Jecko, was incompetent to testify. Rev. Stat., sect. 4010; Kellogg v. Malin, 62 Mo. 429; Angell v. Hester, 64 Mo. 142; Weiland v. Weyland, 64 Mo. 168; Sitton v. Shipp, 65 Mo. 297; Hisaw v. Sigler, 68 Mo. 449; Ring v. Jamison, 66 Mo. 424; Butts v. Phelps, 79 Mo. 304; Lewis v. Weisenham, 1 Mo.App. 222; Corby v. Wright, 9 Mo.App. 6; Allen v. Carter, 8 Mo.App. 585; Hurlbut v. Meeker, Ex'r, 104 Ill. 541; Pope v. Allen, 90 N.Y. 298.

OPINION

THOMPSON J.

This action was brought to recover certain advances made by a firm of commission merchants to the defendant, by honoring his drafts drawn against consignments, in excess of the amount realized by the sale of the goods consigned, after deducting commissions and charges. The commission merchants were a partnership, composed of three persons, doing business in the city of New Orleans, and the defendant was, and is, a resident of this state. Since the transaction in controversy, one member of the firm which composed the commission house has died, and his administrator is joined with his surviving partner as plaintiffs in this action.

The answer contains no general denial; but, after admitting the drawing and payment of the drafts, as alleged in the petition, it sets up, by way of counterclaim, certain breaches of contract by the plaintiffs, in not selling the goods consigned to them for the best market price, and in not accounting to the defendant for all the goods which were so consigned. The defendant claims damages in a larger amount than the sum claimed by the plaintiffs in their petition, and prays that such damages may be recouped against the plaintiffs' claim, and that the defendant may have judgment for the excess.

The trial took place before a jury. The plaintiffs, to sustain the issues on their part, put in evidence, among other testimony, a deposition of one of the surviving plaintiffs which deposition was very material, as it covered the whole subject of the plaintiffs' claim and of the defendant's counter-claim. The defendant took the stand as a witness in his own behalf, and testified that the contract, under which the shipments were made, was entered into between himself and the traveling agent of the plaintiffs. Upon objection by the plaintiffs, the court refused to allow him to testify as to the terms of the contract, or as to the shipments made by him thereunder, on the ground that one of the three partners, who composed the opposite party to the contract and to the suit, was dead. This error was so palpable that we are surprised that such a question is here by appeal. The supreme court has three times decided that the fact that one of the adverse parties to the contract or cause of action is dead does not of itself disqualify the opposing party as a witness. Fulkerson v. Thornton, 68 Mo. 468; Nugent v. Curran, 77 Mo. 323; Williams v. Perkins, 83 Mo. 379; see, also, Amonett v. Montague, 75 Mo. 43. If, however, it should appear that the contract or transaction upon which the suit is...