88 Mo. 462 | Mo. | 1885
On all questions presented for consideration by this record, the court concurs in the opinion ■delivered by the court of appeals, from whose judgment this appeal is taken, except one, which we will hereafter ■consider. I may also remark that as to the main question, viz., the right of the receiver to recover from the ■estate of W. J. Lewis, money alleged to have been received by him as a bribe given for the betrayal of his trust, as one of the directors of the St. Louis Mutual, this court adheres to its decision in the case of Bent, Receiver, v. Priest, 86 Mo. 475.
The allegation in the petition is, that William J: Lewis received thirty thousand dollars of the assets, and
There is not apartide of direct testimony connecting Lewis with that party. The fact, testified to by Peck, that he, Peck, delivered to Lewis a check for twenty thousand dollars, is a specimen of the connecting testimony. What that unknown party, that man in a mask, may have said to Lewis, what the consideration was which Mr. Lewis agreed with the unknown and unnamed to give for the twenty thousand dollars, is not disclosed. It is a mere matter of conjecture. He may have agreed to pay Mr. Lewis, the twenty thousand dollars upon a very different account than that alleged in the petition. It may have been a legitimate contract. He may have disobeyed Peck’s instructions. The defendant had a right to know who that person was, and where he lived. And the court erred in permitting plaintiff to prove what a person did and said as the ágent of Mr. Lewis, without disclosing his name, or residence, or proving his agency, except by circumstantial evidence of the most unsatisfactory character, when it is fairly inferable, from what occurred at the trial, that he was within the reach of the
But here is a person who is the only one living who can testify to what passed between him and Lewis. The plaintiff, who seeks to recover upon facts peculiarly within the knowledge of this person, and who knew his name and residence, of both of which the defendant administrator is ignorant, would neither offer him as a witness nor disclose to the defendant his name or residence, or permit a witness testifying in his behalf to do so. If the plaintiff wished to screen this party from exposure, he should not have introduced testimony connecting him with the transaction; but, having introduced such testimony, it affords a presumption that, if he had been in
That there was other testimony' upon which the court might have found against the defendant may be conceded, but that it would have so found, excluding the incompetent testimony which was admitted, is by no means certain. Mr. Lomax was permitted, over defendant’s objection, to testify to declarations made by Peck, after the reinsurance was effected, that Lewis was to receive a part of the funds transferred to Peck by the Mound City Life — declarations not made in the hearing of Lewis — or communicated to him, and not competent against Lewis. The strongest testimony in the case against Lewis is that of Judge Boyle, who testified: That he had a conversation with Lewis in which Lewis stated to witness that he had a transaction with Peck, in connection with the reinsurance, and that he had received
The legitimate testimony in the cause, it may be conceded, establishes the following facts, nothing more: That Lewis received of Peck twenty thousand dollars ; that it had been said in his presence that Peck was to receive from the Mound City one hundred thousand dol
The judgment is reversed and the cause remanded.