Weiland v. Weyland

• Citation: 64 Mo. 168
• Parties: ANN M. WEILAND, Respondent, v. LEWIS WEYLAND, Appellant.
• Decision Date: 31 October 1876
• Court: Missouri Supreme Court

64 Mo. 168

ANN M. WEILAND, Respondent,

v.LEWIS WEYLAND, Appellant.

Supreme Court of Missouri.

October Term, 1876.

Appeal from Cooper County Circuit Court.

John Cosgrove, for Appellant.

Draffin & Williams, for Respondent, cited: Stanton vs. Ryan, 41 Mo. 510; Johnson vs. Quarles, 46 Mo. 423; Poe vs. Domic, 54 Mo. 119; Kellogg vs. Malin, 62 Mo. 429; Maupin vs. Triplett, 5 Mo. 422.NORTON, Judge, delivered the opinion of the court.

This suit is founded on a promissory note executed by defendants to the testator of plaintiff for the payment of four hundred dollars. The defendant in his answer admits the execution of the note, and sets up as a defense that William Weiland, to whom the note was executed, made the defendant an absolute gift of the debt and money evidenced by said note, and that the gift was made in writing, and was intended as a receipt in full of said debt and interest. The allegations of the answer were denied by replication, and on a trial by the court without the intervention of a jury, judgment was rendered for plaintiff for the amount of said note and interest, from which defendant has appealed.

The record shows that during the progress of the trial, defendant offered in evidence a paper written in the German lanluage, and which, by agreement of counsel, was translated, which is as follows:

BOONEVILLE, June 15, 1871.

L. WEYLAND,

I herewith notify you that I intend to make some improvements, as my income is small and slow, I am obliged to ask you for the return of a few hundred dollars. I did not intend to trouble you, but I learn you have sold some property for which you will get the money, it will therefore, not be hard for you to comply with my wishes. The note for four hundred dollars can remain yours, but what is over I shall be obliged to have, because we are unable to do any more work and need money everywhere.

W. WEILAND.

Defendant was sworn as a witness and asked to state if the paper offered in evidence was delivered to him, and if so, by whom, and if he knew in whose handwriting the same was, and whether he ever executed to William Weyland any note for $400 besides the note in suit. This evidence was objected to on the ground that defendant was not a competent witness to prove the facts sought to be proven, because the said William Weyland, the party to the transaction, was dead. This objection was sustained by the court, to which defendants excepted. The determination of the question whether the court erred in refusing to allow d...