Wells v. Hargrave
| Decision Date | 06 November 1893 |
| Citation | 23 S.W. 885,117 Mo. 563 |
| Parties | Wells, Appellant, v. Hargrave, Administrator |
| Court | Missouri Supreme Court |
Appeal from Putnam Circuit Court. -- Hon. Andrew Ellison, Judge.
Affirmed.
A. W Mullins with J. E. Burnham for appellant.
(1) The evidence in the case was clear, direct and conclusive that the defendant's intestate was indebted to the plaintiff from the year 1863, to the time of his, said James W Wells', death. And the letter to plaintiff, dated September 5, 1880, obviously contains an acknowledgment of such indebtedness, and this is all that the statute requires. 2 Revised Statutes, 1889, sec. 6793, p. 1594; Chidsey v Powell, 91 Mo. 622; Mastin v. Branham, 86 Mo. 643; Boyd v. Hurlbut, 41 Mo. 264; Elliott v. Leake, 5 Mo. 208. (2) And where there is a general acknowledgment of indebtedness in writing, the burden of proof is upon the defendant to show that it related to a different demand from that in controversy. Boyd v. Hurlbut, 41 Mo. 264; 2 Greenleaf on Evidence, sec. 441; Mastin v. Branham, 86 Mo. 643. (3) If the letter, in evidence, to plaintiff from James W. Wells does contain an acknowledgment of his indebtness to plaintiff, then from such acknowledgment, the law implies an obligation and promise to pay. It follows, therefore, that the circuit court erred in refusing plaintiff's first, second and fifth declarations of law and in giving defendant's third. (Authorities supra.) (4) The letter before mentioned explains how it was that the notes and mortgage from James W. Wells to plaintiff were cancelled. This was done by the debtor himself, as acknowledged by him, and without payment, and manifestly without the knowledge of the plaintiff. In view of the evidence and attending circumstances the circuit court proceeded on an erroneous theory in giving for defendant the declarations of law numbered 2 and 4. (5) In giving construction to the letter from James W. Wells to plaintiff the intention of the writer should, if possible, be arrived at, and, as an aid thereto the object in view, the situation of the parties and all the attending circumstances should be considered. Cartwright v. Callaway County, 10 Mo. 667; Crawford v. Elliott, 78 Mo. 500; Dobbins v. Edmonds, 18 Mo.App. 315; Loan & Trust Co. v. Bank, 15 Wis. 480; Partridge v. White, 59 Me. 564; Curtis v. Phillips, 5 Mich. 112; 2 Story on Contracts [4 Ed.], secs. 631-634; 2 Parsons on Contracts [5 Ed.], pp. 499-501.
Huston & Parrish for respondent.
The lower court did not err in declaring as a matter of law that the letter read in evidence was insufficient to take the case out of the statute of limitations. There is not a word in it not entirely consistent with the theory that the deceased was simply giving a statement of a past and complete transaction; to give it the strongest construction possible against the dead man it can only be construed as equivocal, vague, indeterminate and leading to no certain conclusion. This is entirely insufficient. Bell v. Morrisson, 1 Peters, 351; Whetzell v. Bussard, 11 Wheat. 309; Tenyzk v. Wing, 1 Mich. 40; Allen v. Webster, 15 Wend. 244; McKeen v. Thorp, 4 Mo. 256; Buckner v. Wheatin, 4 Mo. 100; Davis v. Deering, 6 Mo. 21; Boyd v. Hurlbut, 41 Mo. 264; Chambers v. Ruby, 47 Mo. 99; Morton v. Brenham, 86 Mo. 643; Chidsey v. Powell, 91 Mo. 627; Kirkbride v. Gash, 34 Mo.App. 256.
-- This suit originated in the probate court of Putnam county, on a claim presented for allowance September 4, 1890, in which plaintiff charged in substance that on October 19, 1863, he sold and conveyed, by attorney, to plaintiff's intestate two hundred and fifty-eight acres of land lying in Putnam county, for the sum of $ 1,290, for which he gave his two promissory notes for $ 645, each, one payable January 1, 1868, and the other January 1, 1869, both bearing ten per cent. interest, and also gave back a deed of trust on the land to secure them; that the notes had never been paid; that on the fifth day of September, 1880, deceased wrote to plaintiff, and thereby, in writing, acknowledged and promised to pay the same.
The claim was rejected by the probate court and on an appeal to the circuit court, and a retrial therein, judgment was rendered for defendant, and plaintiff appealed to this court.
Upon the trial in the circuit court the sale of the land by plaintiff and the execution of the deed, deed of trust, and notes were proved, dated respectively as charged in the claim.
Plaintiff then read a letter from deceased to himself in California dated September 5, 1880, as follows:
The testimony of a brother, sister, and brother-in-law of deceased was to the effect that deceased, just before his death, acknowledged to them verbally his indebtedness to plaintiff. The evidence showed further that on the eighteenth day of May, 1867, plaintiff made to deceased a general power of attorney and that on the nineteenth day of April 1878, under this power of attorney he entered satisfaction of the deed of trust. The notes were in possession of deceased at his death, among some other old papers, were marked paid and the name of the maker had been partly torn off.
It appeared also that in 1878, about the date of the satisfaction of the deed of trust, deceased sold and conveyed this land in exchange for some Texas property, but it was afterwards conveyed back to him.
In addition to the two hundred and fifty-eight acres of land conveyed by plaintiff to deceased in Putnam county he also conveyed to him forty acres in Schuyler county.
At request of defendant the court gave to the jury the following instruction:
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