Wiley v. Morse

30 Mo. App. 266, 1888 Mo. App. LEXIS 266

• Court: Missouri Court of Appeals
• Decided: April 10, 1888
• Status: Published

Opinion

Thompson, J.,

delivered the opinion of the court.

In the year 1878 the defendant and one Barrows were equal partners in the business of keeping a country store. On the twenty-sixth of September, 1878, Barrows executed a negotiable promissory note for three hundred dollars, in favor of Thomas J. Wiley, signing the firm name, thereto, and Thomas J. Wiley ^endorsed the same to this plaintiff. The transaction was had entirely with the plaintiff, and Thomas J. Wiley was a mere conduit through which the note passed to the plaintiff. On the eighteenth of October, 1878, Barrows executed another promissory note for two hundred and fifty dollars, in favor of the plaintiff, again signing the firm name thereto. Barrows died in 1881 possessed of a solvent estate of the value of some fifteen thousand dollars, which was duly administered upon and the administration closed prior to the bringing of this suit. The defendant Morse continued to ■carry on a store at the same place and the plaintiff ■dealt with him on credit, and, according to his testimony, never mentioned the fact of his possession of these notes until shortly before the bringing of the present action upon them in the year 1887. The plaintiff never exhibited the notes as a demand against the ■estate of Barrows, although advised to do so. Testifying as a witness, he gave as his reason for not doing so that the defendant had requested him not to do so. The defendant in his testimony denies this, but admits that he had such a conversation with the plaintiff’s brother, but that it related to another note given by the partnership, and not to either of the notes in suit.

The defences stated in the answer with which we ueed concern ourselves were two-fold: (1) An allegation that the notes were not the notes of the firm but the individual notes of Barrows; that Barrows had no authority to give these notes for the firm, and that the consideration of them did not move to the firm, of which the plaintiff had knowledge — the answer was verified by the defendant’s affidavit. (2) That the-notes had been paid.

At the trial the plaintiff offeree! himself as a witness generally in the case, and, on objection of the defendant,, he was not permitted to testify. Thereafter the defendant took the stand and testified as a witness in his own-behalf. The plaintiff then offered himself as a witness-in rebuttal of the defendant’s testimony, and, against-the objection of the defendant, the court admitted him as a witness. The manner in which the witness was-tendered, and the objection made, are thus stated in the bill of exceptions: “ Plaintiff -then offered himself as a witness in his own behalf, in rebuttal of the evidence of defendant; but defendant objected, because-Barrows being dead, plaintiff was not a competent witness in his own behalf; which objection the court overruled and permitted plaintiff to testify in rebuttal of defendant’s testimony ; to which action of the court defendant at the time excepted.” The propriety of this ruling is the sole question which arises upon this-record.

We take the view that the witness was competent for the purpose for which he was tendered and for which he was admitted by the court as a witness; and that if, in the course of his examination, questions were put to him which sought to elicit matters for which he was not competent, those questions should have been made the grounds of specific objections and exceptions. The mere fact that one of the adversary parties to the transaction is dead does not of itself disqualify the other as a witness. Wallace v. Jecko, 25 Mo. App. 313; Fulkerson v. Thornton, 68 Mo. 468; Nugent v. Curran, 77 Mo. 323; Williams v. Perkins, 83 Mo. 379. But where the contract or transaction which is the subject of the suit was effected solely by or through the deceased party, in behalf of himself and his survivors, the opposing party is disqualified. Wallace v. Jecko, supra; Fulkerson v. Thornton, supra; Nugent v. Curran, supra; Williams v. Perkins, supra; Butts v. Phelps, 79 Mo. 302; Staunton v. Ryan, 41 Mo. 510. The obvious consequence of these two propositions is, that this ■disqualification does not extend so far as to exclude the witness from testifying concerning those facts as to which the survivor has testified. The contrary view would, in ■a case like the present, turn the statute into an engine of injustice, by allowing the surviving party to detail as a witness a mass of transactions or circumstances alleged to have transpired between himself and the other party, without giving the other party the right to give his version of them. In this case Morse professedly knew .nothing about the negotiations or dealings between the plaintiff and Barrows, his deceased partner, which led to the execution of these notes in the firm name by Barrows; but he was allowed to detail a number of ■circumstances leading to the conclusion that the notes were not debts of the partnership; such as the fact that Barrows kept the partnership books, but that no entry which could refer to the consideration of the notes, was ■ever made upon them, and that he had not requested the plaintiff, through his brother, not to present these notes in the probate court against the estate of Barrows.

We see nothing in the testimony of the plaintiff which did not go in rebuttal of that of the defendant ■except the single statement that the notes had not been paid. This, if thought prejudicial, should have been ■objected to at the time.

Judge Rombauer concurring, the judgment is affirmed.