Rombauer, P. J.
The plaintiffs brought a suit by attachment against the defendant, who is a non-resident, upon two promissory notes. One of the notes was paid by consent, out of the proceeds of the attached property before trial, leaving only the issue to be tried, whether [371]*371the plaintiffs were entitled to recover on the remaining note.
The plaintiffs’ petition states that this note was a negotiable note for six hundred dollars made by the' defendant on April 22, 1875 ; that he thereby promised to pay said sum to Julia A. Letcher, sixty days after date thereof, with interest from maturity at the rate of ten per centum per annum; that Julia A. Letcher assigned it in writing to John A. Nies, and that Nies assigned it in the same manner to the Market Street Bank, and that the Market Street Bank sold and transferred it to one Charles Bobb, who again sold and transferred it to the plaintiff, Julia A. Ashbrook. The petition further states that no part of said note had ever been paid, and prays judgment for its amount with interest.
The answer admits the making of the note, and its successive transfers, until it reached the Market Street Bank, but denies that the plaintiffs ever had any right, title or interest in it, and further avers that the note had long since been fully paid. On the issues thus made the parties went to trial, which, under the instructions of the court, resulted in a verdict in favor of the defendant.
The only substantial errors assigned are that the verdict is wholly unsupported by the evidence, and that the court admitted illegal evidence for the defendant against the objection of the plaintiffs.
The production of the- note in court, with the indorsement of the payee thereon, constituted prima facie evidence of ownership in the plaintiff (Mechanics’ Bank v. Wright, 53 Mo. 153; Rubelman v. McNichol, 13 Mo. App. 584); also prima facie evidence that it was acquired in good faith and in the regular course of business. Grelle v. Loxen, 7. Mo. App. 97. This made a prima facie case of a right of recovery, which could be overcome only by evidence to [372]*372the contrary. Lachance v. Loeblein, 15 Mo. App. 460. This evidence, however, need not be direct, as payment may always be proved by inferential evidence. 2 Greenleaf on Evidence, sec. 528.
The evidence of the defendant was all of an inferential character, and did not attempt to prove a direct payment of the note. The defense sought to be established was two-fold : First. That Bobb paid the note to the Market Street Bank upon the request either of the defendant or of his mother, and that thereby the note was extinguished as a subsisting cause of action, and that any action which Bobb thereafter had, or could transfer to any one, was not an action upon the note, but. only an action for money paid at the request and to the use of the defendant. If this were established, there could be no recovery in this form of action, regardless of the question, whether Bobb paid the note with his own money or not, since the note would have been paid and extinguished as a note, and its subsequent transfer would have been a transfer of dead paper.
The second branch of the defense was that Bobb not only paid the note, but paid it upon the request of the payee for the defendant, either with the moneys of the payee in his hands when he paid it, or else reimbursing himself out of such moneys prior to the assignment of the claim to the plaintiff. If this were established, the plaintiff could not recover in any form of action, since Bobb himself would have had no cause of action whatever against the defendant at the date of the alleged assignment to plaintiff, and, therefore, could assign none.
To establish these defenses, the defendant adduced evidence tending to show that the note matured in the summer of 1875, and that the defendant did not leave this state until the fall of 1875 ; that he was possessed of valuable real estate in the city of St. Louis, part of which in January, 1875, he conveyed to Bobb, as trustee [373]*373for Ms wife and children, love and affection being the only consideration of the deed; that, in 1882, while Bobb was still, according to his claim, the holder and owner of this note, the defendant conveyed to him another piece of real estate in St. Louis in trust for his wife and children, the consideration of the deed being love and affection ; that, while Bobb was the holder of this note, the defendant became a distributee of his brother’s estate, of which Bobb was executor, and that his distributive share was much more than one hundred dollars ; that Bobb claimed to have acquired this note before maturity in 1875, took no steps to charge the indorsers thereon, and sold it in 1887, with accrued .interest for one hundred dollars ; that Bobb was the agent of the defendant’s mother, the payee of the note, prior to and after the 'maturity of this note, and collected rents for her both before and after he claimed to have acquired it, and that, owing to his connection with the family, he was in a position to be thoroughly informed, from the time he claims to have acquired the note until its transfer to the plaintiffs, of the fact that the note was collectible, and yet made no efforts to collect it.
On this evidence, we are not prepared to say that there was not substantial evidence authorizing the jury to infer either that Bobb paid the note and did not buy it, or that he not only paid it, but was, also, reimbursed for the outlay, either of which facts was fatal to plaintiffs’ recovery in this form of action. The assignment that the verdict is not supported by substantial evidence must, therefore, be ruled against the plaintiffs, even if we reject the defendant’s deposition hereinafter mentioned.
The next assignment is that the court admitted, against the plaintiffs’ objection, the deposition of the defendant, taken in his own behalf, in May, 1883, several years after the death of Julia A. Letcher, the payee [374]*374and other party to the contract. The deposition, when offered, was objected to on the specific ground that, when it was taken, the payee of the note was dead, and and, henc$, under the statute, the maker, who was both a party in interest and a party to the record, was an incompetent witness in his own behalf. The court, in overruling this objection, must have held either that the defendant was not the other party to the contract, within the meaning of the statute, or that, although not competent to testify to the contract itself, he was competent to testify to facts subsequently transpiring touching the contract between himself and the payee, or himself, the payee and third parties. Either of these views was erroneous.
The statute provides that, in actions where one of the original parties to the contract or cause of action in issue and on trial is dead, the other party shall not be admitted to testify in his own favor (subject to certain exceptions). The supreme court has construed this section to mean that it contains another exception, namely, where persons were competent to testify at common law.
The non-liability of Mrs. Julia A. Letcher upon the contract would have made her a competent witness at common law, because she was neither a party to the record nor a party in interest, and could not be excluded on either ground. She stands upon the same footing as if her competency had been established by release. Steigers v. Gross, 7 Mo. 261; Hogg v. Breckenridge,
Free access — add to your briefcase to read the full text and ask questions with AI
Rombauer, P. J.
The plaintiffs brought a suit by attachment against the defendant, who is a non-resident, upon two promissory notes. One of the notes was paid by consent, out of the proceeds of the attached property before trial, leaving only the issue to be tried, whether [371]*371the plaintiffs were entitled to recover on the remaining note.
The plaintiffs’ petition states that this note was a negotiable note for six hundred dollars made by the' defendant on April 22, 1875 ; that he thereby promised to pay said sum to Julia A. Letcher, sixty days after date thereof, with interest from maturity at the rate of ten per centum per annum; that Julia A. Letcher assigned it in writing to John A. Nies, and that Nies assigned it in the same manner to the Market Street Bank, and that the Market Street Bank sold and transferred it to one Charles Bobb, who again sold and transferred it to the plaintiff, Julia A. Ashbrook. The petition further states that no part of said note had ever been paid, and prays judgment for its amount with interest.
The answer admits the making of the note, and its successive transfers, until it reached the Market Street Bank, but denies that the plaintiffs ever had any right, title or interest in it, and further avers that the note had long since been fully paid. On the issues thus made the parties went to trial, which, under the instructions of the court, resulted in a verdict in favor of the defendant.
The only substantial errors assigned are that the verdict is wholly unsupported by the evidence, and that the court admitted illegal evidence for the defendant against the objection of the plaintiffs.
The production of the- note in court, with the indorsement of the payee thereon, constituted prima facie evidence of ownership in the plaintiff (Mechanics’ Bank v. Wright, 53 Mo. 153; Rubelman v. McNichol, 13 Mo. App. 584); also prima facie evidence that it was acquired in good faith and in the regular course of business. Grelle v. Loxen, 7. Mo. App. 97. This made a prima facie case of a right of recovery, which could be overcome only by evidence to [372]*372the contrary. Lachance v. Loeblein, 15 Mo. App. 460. This evidence, however, need not be direct, as payment may always be proved by inferential evidence. 2 Greenleaf on Evidence, sec. 528.
The evidence of the defendant was all of an inferential character, and did not attempt to prove a direct payment of the note. The defense sought to be established was two-fold : First. That Bobb paid the note to the Market Street Bank upon the request either of the defendant or of his mother, and that thereby the note was extinguished as a subsisting cause of action, and that any action which Bobb thereafter had, or could transfer to any one, was not an action upon the note, but. only an action for money paid at the request and to the use of the defendant. If this were established, there could be no recovery in this form of action, regardless of the question, whether Bobb paid the note with his own money or not, since the note would have been paid and extinguished as a note, and its subsequent transfer would have been a transfer of dead paper.
The second branch of the defense was that Bobb not only paid the note, but paid it upon the request of the payee for the defendant, either with the moneys of the payee in his hands when he paid it, or else reimbursing himself out of such moneys prior to the assignment of the claim to the plaintiff. If this were established, the plaintiff could not recover in any form of action, since Bobb himself would have had no cause of action whatever against the defendant at the date of the alleged assignment to plaintiff, and, therefore, could assign none.
To establish these defenses, the defendant adduced evidence tending to show that the note matured in the summer of 1875, and that the defendant did not leave this state until the fall of 1875 ; that he was possessed of valuable real estate in the city of St. Louis, part of which in January, 1875, he conveyed to Bobb, as trustee [373]*373for Ms wife and children, love and affection being the only consideration of the deed; that, in 1882, while Bobb was still, according to his claim, the holder and owner of this note, the defendant conveyed to him another piece of real estate in St. Louis in trust for his wife and children, the consideration of the deed being love and affection ; that, while Bobb was the holder of this note, the defendant became a distributee of his brother’s estate, of which Bobb was executor, and that his distributive share was much more than one hundred dollars ; that Bobb claimed to have acquired this note before maturity in 1875, took no steps to charge the indorsers thereon, and sold it in 1887, with accrued .interest for one hundred dollars ; that Bobb was the agent of the defendant’s mother, the payee of the note, prior to and after the 'maturity of this note, and collected rents for her both before and after he claimed to have acquired it, and that, owing to his connection with the family, he was in a position to be thoroughly informed, from the time he claims to have acquired the note until its transfer to the plaintiffs, of the fact that the note was collectible, and yet made no efforts to collect it.
On this evidence, we are not prepared to say that there was not substantial evidence authorizing the jury to infer either that Bobb paid the note and did not buy it, or that he not only paid it, but was, also, reimbursed for the outlay, either of which facts was fatal to plaintiffs’ recovery in this form of action. The assignment that the verdict is not supported by substantial evidence must, therefore, be ruled against the plaintiffs, even if we reject the defendant’s deposition hereinafter mentioned.
The next assignment is that the court admitted, against the plaintiffs’ objection, the deposition of the defendant, taken in his own behalf, in May, 1883, several years after the death of Julia A. Letcher, the payee [374]*374and other party to the contract. The deposition, when offered, was objected to on the specific ground that, when it was taken, the payee of the note was dead, and and, henc$, under the statute, the maker, who was both a party in interest and a party to the record, was an incompetent witness in his own behalf. The court, in overruling this objection, must have held either that the defendant was not the other party to the contract, within the meaning of the statute, or that, although not competent to testify to the contract itself, he was competent to testify to facts subsequently transpiring touching the contract between himself and the payee, or himself, the payee and third parties. Either of these views was erroneous.
The statute provides that, in actions where one of the original parties to the contract or cause of action in issue and on trial is dead, the other party shall not be admitted to testify in his own favor (subject to certain exceptions). The supreme court has construed this section to mean that it contains another exception, namely, where persons were competent to testify at common law.
The non-liability of Mrs. Julia A. Letcher upon the contract would have made her a competent witness at common law, because she was neither a party to the record nor a party in interest, and could not be excluded on either ground. She stands upon the same footing as if her competency had been established by release. Steigers v. Gross, 7 Mo. 261; Hogg v. Breckenridge, 12 Mo. 369; Long v. Story, 13 Mo. 4. But, how does the fact that she is released affect Giles C. Letcher, who is incompetent to testify at common law, both as a party in interest and as a party to the record ?
In Ring v. Jamison, 66 Mo. 429, Judge Henry approves of the definition of Judge Wells, in Granger v. Bassett, 98 Mass. 462 : ‘‘ The test of competency is the contract or cause of action in issue and on trial, not the [375]*375fact to which, the party is called to testify.” This we consider still to be the law of this state, so that the fact, concerning which the defendant was called upon to testify, could not make him competent, if he was otherwise incompetent. Julia A. Letcher was, unquestionably, one of the other parties to the note. The defendant’s promise was made to her, and that is the promise which she assigned, and upon which the plaintiff now seeks to recover. That she indorsed the note for the defendant’s accommodation cannot affect the question, as that did not in any way constitute her a joint promisor, but her rights and liabilities on the note still remained as they were determined by her position thereon. Deits v. Corwin, 35 Mo. 376; McCune v. Belt, 45 Mo. 174.
It is important that the rules governing the competency of witnesses should be simple and easily understood. The rule stated in Granger v. Bassett, and approved in Ring v. Jamison, supra, is one that is clear and' comprehensive, and makes the defendant Letcher an incompetent witness in this case. If we attempt to modify the rule in each case as its apparent equities seemingly demand, we must abandon a clear and comprehensive rule and substitute for it the varying views of judges in individual cases, a practice which tends to make the law uncertain and, hence, necessarily unjust. The evidence thus admitted was, undoubtedly, prejudicial to the plaintiffs, and, on account of this error, the judgment must be reversed and the cause remanded. So ordered. Judge Biggs concurs ; Judge Thompson dissents.