Wilkins v. Bell's Estate

• Decision Date: 07 April 1924
• Docket Number: No. 14983.,14983.
• Citation: 261 S.W. 927
• Parties: WILKINS v. BELL'S ESTATE.
• Court: Missouri Court of Appeals

261 S.W. 927

WILKINS v. BELL'S ESTATE.

No. 14983.

Kansas City Court of Appeals. Missouri.

April 7, 1924.

Rehearing. Denied May 5, 1924.

Appeal from Circuit Court, Adair County; James A. Cooley, Judge.

"Not to be officially reported."

Action by A. M. Wilkins against the estate of George W. Bell. Judgment for defendant, and plaintiff appeals. Affirmed.

Chas. E. Murrell and W. F. Frank, both of Kirksville, for appellant.

Higbee & Mills, of Kirksville, for respondent.

ARNOLD, J.

PIaintiff sued to recover from the estate of Geo. W. Bell, deceased, the sum of $1,000 and interest, alleging overpayment upon various notes which furnished the basis of a settlement between plaintiff and deceased in his lifetime.

This action originated in the probate court of Adair county by the filing in said court by plaintiff of a demand against said estate in the sum of $1,000 and interest from 1907, 1112". til the filing of the claim in 1921; the total amount being $1,757.34. The probate court found against plaintiff and for defendant, and an appeal was taken to the circuit court of Adair county, where trial to a jury resulted in a directed verdict for defendant.

The facts show that prior to September 9, 1907, plaintiff borrowed from deceased various sums of money for which he executed his certain promissory notes. Plaintiff states the number of such notes was five, but the proof is indefinite on this point, and for the purposes of this review the number of such notes is immaterial. It is shown that in the month of September, 1907, plaintiff's nephew, John E. Wilkins, applied to Geo. W. Bell for a loan of $2,600. Bell told the applicant that he had only $1,600 cash on hand. Plaintiff then suggested that he (plaintiff) would furnish $1,000 of the amount, which, with the $1,600 which Bell had, would complete the amount of $2,600 desired. It was further agreed that the note for $2,600 loaned John E. Wilkins should be taken, with Geo. W. Bell named therein as payee, and that the $1,000 advanced by plaintiff should be credited on plaintiff's indebtedness to Bell. The parties afterwards met at the house of Geo. W Bell where Bell's sister, Josie Bell, also made her home, and both were present at the interview. Josie Bell and plaintiff, in the presence of Geo. W. Bell, and at his request, calculated the amount due on the several notes that plaintiff owed Bell, and it was agreed that plaintiff should execute three promissory; notes covering the amount found to be due, and that plaintiff was to have credit of $1,-000 advanced as aforesaid, on the amount thus found.

At this point the parties disagree as to the facts. Plaintiff contends that he was to have credit indorsed on the new notes for this $1,-000, while Josie Bell's evidence tends to show that the $1,000 paid, as above stated, was to be and actually was subtracted from the total sum clue, and that the new notes represented the remainder due Bell from plaintiff.

Geo. W. Bell died February 2, 1921, and William H. Bell was duly appointed administrator of his estate. In his demand in the probate court plaintiff alleges that the said administrator demanded payment of the amount plaintiff owed the estate, stated by the administrator to be $2,213.22; that said amount was in excess of the amount plaintiff actually owed the estate; and that the administrator told him that, if he would pay said amount, and it was found to be incorrect, the error would be corrected, and that thereupon plaintiff paid said amount to the administrator.

It is in evidence that a few days after the settlement on September 9, 1907, plaintiff went to the home of Geo. W. Bell, and told Bell that a mistake of $25 had been made against plaintiff ; that Bell instructed his sister, Josie, to give plaintiff credit for the amount on his notes, and that this was done.

During the progress of the trial plaintiff was offered as a witness in his own behalf. Objections to his testimony were sustained by the court, on the ground that Bell was dead and plaintiff was incompetent to testify as to transactions between the parties on September 9, 1907. The contention of plaintiff in this respect is that Josie Bell was the agent of Geo. W. Bell in the transactions at that time, and that plaintiff's testimony is admissible; Josie Bell being alive.

At the close of plaintiff's evidence an instruction in the nature of a demurrer was offered by defendant and given by the court, and judgment for defendant was accordingly entered. Plaintiff appeals.

First, it is urged by plaintiff that Josie Bell was the agent of the deceased for the purpose of determining the amount due on the several notes due from plaintiff to Bell, and in giving plaintiff credit for the $1,000 on the amount, and that the court erred in ruling plaintiff an incompetent witness....