Home/Missouri Court of Appeals/Hubbard v. Estate of Happel

Hubbard v. Estate of Happel

382 S.W.2d 416, 1964 Mo. App. LEXIS 574
CourtMissouri Court of Appeals
DecidedSeptember 25, 1964
Docket31731
StatusPublished
Cited by12 cases

This text of 382 S.W.2d 416 (Hubbard v. Estate of Happel) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hubbard v. Estate of Happel, 382 S.W.2d 416, 1964 Mo. App. LEXIS 574 (Mo. Ct. App. 1964).

Opinion

DOERNER, Commissioner.

In lieu of the usual transcript, the parties to this appeal filed a statement of the case, which was approved by the trial court and certified as the transcript on appeal. Civil Rule S3.13, V.A.M.R. Since it is relatively short we quote it in its entirety:

“Moritz Happel died in Hannibal, Missouri on March 31, 1960 and his wife, Margaret L. Happel was appointed Executrix of his Last Will and Testament on April 25, 1960 by the Probate Court of Marion County, Missouri.
“Thereafter Claimant Walter Hubbard filed his demand in the Probate Court of Marion County, Missouri on August 15, 1960 against the estate of Moritz L. Happel in the sum of Six Thousand Five Hundred Dollars ($6,-500.00) on account of money alleged to have been loaned to decedant (sic). The Executrix of the estate of Moritz Happel waived the service of all notices but did not consent to the claim.
“On August 6, 1962 claimant, Walter Hubbard, made application to the Marion County Probate Court to transfer said claim to the Marion County Cir *418 cuit Court which application was granted by said Probate Court on August 6, 1962.
“The Circuit Court of Marion County, Hon. Elgin T. Fuller, Judge, presiding, set the cause to he heard by jury in Palmyra, Missouri, on June 3, 1963. On June 3, 1963 the cause was called for trial and a jury of twelve good and lawful citizens of the County were duly sworn to try the issues and the cause proceeded to trial.
“Plaintiff’s witness Herbert Richter on direct examination identified Plaintiff’s Exhibit Number 1, a sale memorandum as being in the handwriting of Moritz Happel, deceased. The same witness identified Plaintiff’s Exhibit Number 2, a check dated September 9, 1958, as being in the handwriting of Walter Hubbard and the endorsement on the reverse side as being the handwriting of Moritz Happel. The witness further identified Plaintiff’s Exhibit Number 3, a check dated September 5, 1958, in the sum of Three Hundred Fifty Dollars ($350.00), as being written and endorsed by Plaintiff. The same witness identified Plaintiff’s Exhibit Number 4, dated September 9th, 1958, a memorandum, as being written in the hand of Moritz Happel.
“Plaintiff’s witness, Herbert Richter, on cross-examination identified Defendant’s Exhibit Number A, a check dated February 1,1959, as being written by Moritz Happel, deceased, and endorsed by Claimant, Walter Hubbard. The same witness identified Defendant’s Exhibit B, a check in the sum of Three Hundred Dollars ($300.00) dated October 27, 1958 as being written and endorsed by the Plaintiff. Plaintiff’s witness Herbert Richter further testified that the handwriting on Defendant’s Exhibits F-l, F-2, G, and H was that of Moritz Happel, deceased.
“Immediately before Plaintiff rested he introduced Exhibits 1, 2, 3, and 4 which were ordered admitted by the Court and which were individually exhibited to the jury.
“Defendant’s witness, Maurice L. Happel, son of decedent also identified Plaintiff’s Exhibits 1, 2 and 4 and Defendant’s Exhibits A, F-l, F-2, G and 4 exactly as did Plaintiff’s witness Herbert Richter. Defendant’s witness, Maurice L. Happel further testified that Exhibits F — 1, F-2, G and H were business entries made by decedent in the usual course of business.
“Thereupon Defendant attempted to introduce Exhibits A, B, F-l, F-2, G and H into, evidence, but the Court sustained Plaintiff’s objection that said Exhibits were not sufficiently connected with the transaction brought out in Plaintiff’s evidence as to be admissable. Defendant excepted then rested and the Court directed a verdict for the Plaintiff.
“Defendant duly filed a Motion to set aside verdict and Motion for a New Trial on June 8, 1963 which Motion was submitted thereafter to the Court on June 28, 1963. Thereafter Judge Fuller was stricken ill and no ruling was forthcoming from the Court until the ninety day period had expired. Defendant filed in the Circuit Court of Marion County, Missouri a Notice of Appeal on September 5, 1963.
“It is agreed between Plaintiff and Defendant that the question to be presented on this appeal is the admissibility into evidence of Defendant’s Exhibits A, B, F-l, F-2, G and H in this cause. Said Exhibits are filed with the Clerk of this Court and photo-copies thereof are attached hereto. The same are made part of hereof by specific reference.”

A further statement as to the exhibits is obviously necessary. Claimant’s Exhibit 1 is a carbon copy of a sales memorandum on a printed form, headed “Livestock Contract” and reads as follows:

*419 “THIS CONTRACT made this_8th day of Sept. 1958 by and between Zalondek Bros of Kremlin. Okla. hereinafter known as SELLER, and M. L. Happel of Amarillo, Texas hereinafter known as BUYER, covers the sale of the following described livestock, for the consideration of the sum of $(figures illegible) part payment of purchase price, in hand paid to Seller by Buyer, and Seller hereby sells and agrees to deliver to said Buyer at prices listed:
No. Kind Brands Price
About Hereford & Angus Z right Hp 24 8%oo 1,000 Steers
Cattle are now located at ranch or farm known as Zalondek Bros and are to remain on the same feed, water and handling until the contract is consummated unless otherwise specified in writing and agreed to by both parties. Cattle are now on: Grass 2L Feed Lot ____ Grass and Cake_Silage
_Wheat Pasture_
Cattle to he weighed as follows: Cut_% at Kremlin Okla
LEAVE_HOW_WEIGHED DRY AT_ SHRINK 3% %. Delivery to be made on or before stock yards or truck Buyer’s option, F.O.B. Cars at:_
All cattle to be sound and in merchantable condition and free of any con-tageous disease, Crippled, deformed, blind, one-eyed, locoed, lump-jawed, stage, bob tailed or otherwise deformed animals, may be rejected by the Buyer, Health and brand certificates to be furnished by the Seller. All cattle are to be delivered free of all encumbrances and with a clear
title. REMARKS: Cattle to be taken in 3 days delivery days Sept 29 & 30 and Oct 1st. Cattle to gathered between 6:30 and 7 a. m. trucked to Kremlin weighed and shrunk 3%. Sellers agree to satisfy Dutch McConnel
M. L. Happel J. W. Zalondek
BUYER SELLER ”

Claimant’s Exhibit 2 is a check for $350 dated September 5, 1958, signed Walter Hubbard, payable to M. L. Happel, endorsed on the back “M L Happel by Walter Hubbard” and bearing on its face the words “On cattle.” Claimant’s Exhibit 3 is a check for $6150 dated September 9, 1958, signed Walter Hubbard, endorsed on the back “M. L. Happel,” bearing on its face the words “On cattle.” Claimant’s Exhibit 4 is written on the reverse side of a blank check and reads as follows:

“9-9-58

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Bluebook (online)
382 S.W.2d 416, 1964 Mo. App. LEXIS 574, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hubbard-v-estate-of-happel-moctapp-1964.