Brown v. Carson

132 Mo. App. 371 | Mo. Ct. App. | 1908

JOHNSON, J.

This action originated in the probate court of Carroll county on the 27th day of November, 1906, by the presentation of a promissory note as a demand against the estate of James J. Brody, deceased. The Statute of Limitations was successfully interposed as a defense in the circuit court where the cause was tried on appeal, and in obedience to a peremptory instruction, the jury returned a verdict for defendant. In due course of procedure, plaintiff brought the case here by appeal. Plaintiff offered in evidence as the foundation of his demand, the following promissory note:

“$120.50. Carrollton, Mo., Jan. 1, 1876.

“One day after date, I promise to pay to the order of........at........T. J. Brown........One Hundred Twenty... .50-100 Dollars, for value received, negotiable and payable without defalcation or discount, with interest from date at the rate of ten per cent per annum, payable annually, and if interest be not paid annually, or when due, to become as principal and bear the same rate of interest.

“James J. Brody.”

Credits were endorsed on the back of the note as follows:

“Feb. 22, 1884. By calf at $15.00. T. J. Bhown.”

“Sept. 12, 1885. By calves at fifteen dollars. T. J. Brown.”

“June 12th, 1898, received on the within note one hundred dollars.

“T. J. Brown.”

Defendant objected to the endorsements being admitted in evidence without proof that the payments indicated by them had been made on the note. The objection was sustained and plaintiff excepted. A son of plaintiff then was introduced as a witness and interrogated concerning the credit of $100 dated June 1,1898. We quote from his examination: “Q. I will get you to state if you remember the occasion of Mr., Brody paying your father one hundred dollars? A. I wasn’t there in person when he paid it.” Objection by defendant. Sustained. “Q. I will get you to state if your father received the one hundred dollars from Mr. Brody.” Objection. Overruled. “A. I have several ways of knowing that. I have all the confidence in the world in his statement.” “The Court: That’s not proper evidence.” Exception by plaintiff. “A. Well, I didn’t see it. Q. Where is your father at the present time, Mr. Brown, and why is he not — ?” Objection by defendant. Overruled. “A. He’s at home or was this morning when I left Bosworth. Q. He’s feeble? What’s his physical condition?” Defendant objected. The objection was sustained and no further questions were asked the witness.

Plaintiff argues that the court committed prejudicial error in striking out the testimony of this witness. It will be observed that the Statute of Limitations had run against the note at the time of the credit of $100 shown by the endorsement, and it is clear the note was barred by the statute when this action was brought unless it was saved by that credit. The burden devolved on plaintiff to prove the fact of the resuscitating payment by evidence aliunde the endorsement which, standing alone was no evidence of that fact as it partook too much of the nature of a self-serving act of the payee. The rule thus is stated in Goddard v. Williamson’s Admr., 72 Mo. I. c. 133: “When plaintiff proves that the credit was made at a time when it was against his interest to make it, it is admissible. If made by or with the consent of the payor of the note, it is admissible; but a mere indorsement by the holder himself without the knowledge or consent of the payor, or other proof that the payment was then made, is not admissible if the note would be barred, by the statute but for the credit indorsed; otherwise the holder of a note Avould have no difficulty in avoiding the bar of the statute.” [Briscoe, Admr., v. Huff, 75 Mo. App. 288; Crow v. Crow, 124 Mo. App. 120; Phillips v. Mahan, 52 Mo. 197; Haver v. Schwyhart, 39 Mo. App. 303; 48 Mo. App. 50; Loewer v. Haug, 20 Mo. App. 163; Smith v. Zimmerman, 51 Mo. App. 519.] The testimony under consideration was utterly barren of probative value. The witness was not present when the alleged payment Avas made and admitted, in effect, that he had no knowledge of the transaction except from hearsay sources. No importance should be attached to his observation “I have several ways of knowing that.” The only Avay he disclosed was that of hearsay information from his father which Avas clearly incompetent. If he possessed evidentiary knowledge, plaintiff’s counsel should have asked some question to bring it out. They did not choose to do this, and we have no reason to infer that a further examination of the witness would have been more productive of results than that appearing in the record before us.

Plaintiff introduced the probate judge as a witness and asked him: “Q. I will get you to state, if during that year (1906) T. J. BroAvn presented a claim against the Brody heirs?” Objection by defendant. Sustained. “Q. I will get you to state whether or not the Brody heirs, Mr. Craig Brody and Mr. White, admitted in your court that Mr. Brody had paid Dr. Brown one hundred dollars?” Objection by defendant. Sustained. Witness then was excused. We do not agree with the contention of plaintiff that the court should have permitted the witness to answer the question. It clearly appears to be objectionable on several grounds, only one of which needs be noticed. It is the sole province of the jury to draw inferences and conclusions from facts and circumstances. Witnesses other than those called as experts should be confined to the narration of facts. While it is not error to permit a witness testifying to declarations and admissions to give the substance of what he heard, it is error to ask him to state the inferences of conclusions he drew from what he heard. To permit him thus to testify would invest him with a function belonging exclusively to the triers of fact. The witness should have been asked to state either the exact words or, at least, the substance of what the heirs said and from those statements it was for the jury to determine whether or not the heirs admitted the fact that their ancestor had made the payment on the note indicated by the indorsement. We do not think there is any merit in the point that the objection to the question was not sufficiently specific. The question was so obviously incompetent that a general form of objection was sufficient to invoke a ruling from the court. A party Avill not be permitted to lay an ambuscade for his opponent or the court under a general objection to a question, and spring it on motion for a new trial or in the appellate court. But where an Objection manifestly discloses all of its grounds, its full office is accomplished and its form is of no consequence.

Further, paintiff offered in evidence a check for $140 drawn by a firm of mule dealers in May, 1898, in favor of Brody, and indorsed in blank by the payee. No offer was made to shoAv any connection between this check and the alleged credit on the note and the court sustained defendant’s objection to its admission in evidence. Where a party offers evidence to prove a fact which appears to be a link in a chain of proof, the evidence should be admitted “although at the time no disclosure is made by counsel of an intention to prove additional facts necessary to establish the claim or defense.” [Platte Co. v. Marshall, 10 Mo. 346; Lane v. Kingsbury, 11 Mo. 410; Budd v. Hoffheimer, 52 Mo. 305.] But this rule has no application to evidence which bears on its face no appearance of evidentiary relationship to any ultimate fact in the case. There was no more apparent connection between the fact that Brody received payment for two mules he sold on the market and the endorsement of the credit on the note held by Mr. Birown than there would have been between the latter act and the fact that Brody received money from any other quarter. Presumably, he enjoyed an income either from his industry or property, but that does not indicate that he voluntarily revived an outlawed note by making a payment on it. Plaintiff should have offered to show that the fact under consideration was “a link in a chain of proof,” since the fact itself carried no such appearance.

No other evidence was offered by plaintiff and we do not perceive how the court well could have done otherwise than to direct a verdict for defendant.

One of the grounds stated in the motion for a new trial is that of newly discovered evidence. We find plaintiff was not entitled to a new trial on this ground because of a lack of diligence. There is no error in the record and it follows that the judgment must be affirmed.

All concur.