"This suit originated in the circuit court of the city of St. Louis, and is based upon an assigned account for the sum of $250, with divers credits thereon, aggregating the sum of $162.75, and the balance alleged to be due, with the interest to the date of filing the suit, amounted to the sum of $246.06. The answer was a general denial. The trial was before a jury.
"The evidence for the appellant tended to show that she was the widow of Samuel Weiermueller, deceased, and that he assigned the account sued on to her on the 10th day of November, 1892, and died in the following December. Appellant testified that after the death of her husband she went to see respondent regarding the account, and demanded payment, and he said: `Very well, I will pay you as soon as I am able.' That was in 1896 or 1897. `I went to see him again, and he said: "I will try and give you some on that account my next pay day." I think it was about the third time (I went) that he gave me some money on account, which was $5.' And that between May 6, 1897, and September 14, 1901, he paid her divers sums of money, aggregating $162.75, and that she kept a memoranda of all the payments and the dates thereof, which she stated in detail. She also testified that he never denied that he owed her the $250, and that she knew nothing about the loan of the money by her husband to respondent.
"Over the objections of the appellant, the respondent testified as follows: `Q. What did she [the appellant] say to you when she came to you? A. The first time she came she said, "I understand that you have promised" — In the first place, she said that "she was very hard up," and said "she did not have any money, and that she understood her husband to say that I had promised to pay him back some money he had paid me for those teams," and I told her that was right; that I had done that. She asked me how much it was, and I told her it was $140, and I told her that I had promised him just before he died that I would do that, and that I would just as soon as I was able, and I did do it. I paid her from time to time $5, until I had it more than paid up—in fact I kept giving her money until she came to me with her husband, and then I told her that that settled it. I wouldn't pay her any more. That I had more than paid her what I had promised to pay her. I kept an account of the sums I paid her, which was about $160.' He further testified that she never presented any account to him, and that he had never promised to pay her any more than $140, and that he had paid her over that amount, because her husband was a particular friend of his, and had been in his employ 13 years, and he wanted to help his widow along, and that when she married again he stopped the payments. Appellant objected to respondent testifying in the case, because the other party to the contract in issue and on trial was dead, which objection was by the court overruled, and appellant duly excepted.
"That was all the evidence in the case, and thereupon the court instructed the jury upon two theories of the case, presented by the evidence, to which action of the court appellant objected and excepted. The jury found the issue for the respondent, whereupon
appellant filed her motion for a new trial, which was overruled, and she duly prosecuted her appeal to the St. Louis Court of Appeals, where the judgment of the circuit court was affirmed by a divided court, and the dissenting judge certified the cause to this court, because, in his judgment, the opinion of that court was in conflict with the decisions of this court, namely, Kersey et al. v. O'Day, 173 Mo. 560, 73 S. W. 481, and Curd v. Brown, 148 Mo. 82, 49 S. W. 990.
"There is but one question presented by this record, and that is: Was the respondent a competent witness to testify to the conversations and transactions mentioned in his evidence?
"It will be seen from reading the evidence that there was no evidence whatever that respondent was indebted to her husband, except her testimony, which tended to show that he at least tacitly admitted he owed the debt, and respondent's own testimony to the effect that he told her that he had promised her husband to pay him back some money the deceased had paid him for teams. There has been some conflict between the decisions of this court upon the question here presented, and some confusion has resulted in consequence thereof, in the admission and rejection of evidence; but it seems that the confusion has largely grown out of the fact that the nature and purpose of the statute governing such evidence has not at all times been kept in view. Section 4652, Rev. St. 1899 [Ann. St. 1906, p. 2520] provides that: `No person shall be disqualified as a witness in any civil suit or proceeding at law or in equity, by reason of his interest in the event of the same as a party or otherwise, but such interest may be shown for the purpose of affecting his credibility: Provided, 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 in favor of any party to the action claiming under him, and no party to such suit or proceeding whose right of action or defense is derived to him from one who is, or, if living, would be subject to the foregoing disqualification, shall be admitted to testify in his own favor, except as in this section is provided, and where an executor or administrator is a party, the other party shall not be admitted to testify in his own favor, unless the contract in issue was originally made with a person who is living and competent to testify, except as to such acts and contracts as have been done or made since the probate of the will or the appointment of the administrator.' This statute is an enabling, and not a disabling, act. Bates v. Forcht, 89 Mo. 121, 1 S. W. 120. The common law rejected the testimony of all persons whose pecuniary interest was directly involved in the matter in issue and on trial. 1 Greenleaf, Evid. (16th Ed.) §§ 327, 328b. Because of the many hardships imposed, and the miscarriage of justice was so frequent, under that rule of evidence, ...
