52 Mo. App. 102 | Mo. Ct. App. | 1892
This case was before, this court on a former appeal. 47 Mo. App. 301. The court there decided three propositions: First. That the testi
The case has now been tried again by a jury, resulting in a verdict and judgment for the defendant, and the plaintiff again prosecutes an appeal to this court. Numerous errors are assigned, but we shall only notice those that seem to possess substantial merit.
The evidence given in support of the claims was substantially the same as on the former trial. It consisted of testimony to the effect that the deceased had, about nine months before his death, ridden on horseback to where the witness was shucking corn in his field, and had there had a conversation with him in which he admitted that he had between $700 and $800 of money belonging to the present plaintiff.
The first witness called on behalf of the defendant was Dr. F. M. Wright, who had lived in Knox county for twenty-seven years, and who was acquainted with the deceased Frank Carder in his lifetime, and also
“By the court: The objection is overruled. (To the said action of the court in overruling the said evidence plaintiff’s counsel did then and there object and save exception herein.) A. I did.
“Q. When and where was that? A. It was in Colony, I think.
“Q. .How long ago? A. Over a year ago, and under two years — I don’t remember the dates.
“ Q. Do you remember the purport of the item there, what it was? (Objected to as being illegal and incompetent, and because the book is the best evidence of the fact.)
“Q. What did he state in that connection?
“By the court: And what he said?
“By Mr. Jones (counsel for the defendant): Yes, sir; what Oliver Carder said in that connection?
“Q. Well, now then, was that the money he said he charged Frank Carder with? (Objected to as being leading.)
“Q. Did he have the item of $219 charged against Carder on his books?
“By the court: Was that the amount of the note you paid? A. That is the original amount of the note I paid.
“ Q. Was that the French Carder note? A. The French Carder note.
"Q. Now then, the fact is the sum you paid to Frank Carder on the French Carder note herein referred to was $219, was it not? (Objected to because the question assumed the fact.)
"Q. Now then, at what time, Doctor, did you make the last payment on the French Carder note? A. The last payment that I made — (Objected to as being incompetent, irrelevant and immaterial.)
“By the court: The objection overruled. (To the said action of the court in overruling the said question the plaintiff’s counsel did then and there object and saved exceptions herein.)
“Q. How much? A. It says here January 23, 1873. (Plaintiff objected to the note and indorsements thereon in connection with it, because the note and indorsements are the best evidence.)
“By the court: From an examination of that note and the. indorsements thereon is your memory refreshed? A. Yes, sir; when I read the note my memory is refreshed.
“By the court: Is it now refreshed? A. Yes, sir.
“By the court: What is the date? A. January 23, 1873. He told me the item on his books was for
Error is assigned upon the admission of the question against plaintiff’s objection: “Did you have a conversation with Oliver Carder once, in which he showed you a memoranda (sic) book against Frank Carder for the sum of $219?” As the only objection to the question was on the ground that it was leading, and, as it is within the discretion of the trial court to permit leading questions, this assignment of error presents nothing for review. If the plaintiff desired to have parol evidence of the contents of the supposed “memoranda book” excluded on the ground that the book itself was the best evidence, he should have made his objection on that ground, and then the question would have arisen whether the objection was tenable or not.
The next assignment of error will be best understood if we state that when Dr. Wright, the first witness called for the defendant, was on the stand, undergoing his direct examination, counsel for the defendant asked him whether he had a conversation with Mr. Hume, who, it will be recalled, was the only witness for the plaintiff, with reference to this case, to which Dr. Wright answered that he had had such a conversation with him at Colony perhaps two or three years before. The following question was then asked: “Q. Did he say to you in substance that he wanted you to talk to Judge Fowler, the probate judge of this county, about this case, and to try to counteract on the mind of Judge Fowler any influence Mr. Cottey as an attorney in the case might have on his mind — any undue influence? (Counsel for the plaintiff objected to this question ‘as being incompetent, irrelevant and immaterial, there being no foundation laid for it.’) By the court: The objection overruled. You laid the foundation; you propounded the question to the witness and he admitted
Here the matter was dropped, and the succeeding interrogatories directed the attention of the witness to the conversation had between him and the plaintiff, spoken of in the preceding paragraph. The overruling of the plaintiff’s objection to the following question in the above colloquium is assigned as error: “Did he [the witness Hume] say to you in substance that he wanted you to talk to Judge Fowler, the probate judge of the county, about this case, and to try to counteract on the mind of Judge Fowler any influence Mr. Cottey, as an attorney in the case, might have on his mind— any undue influence?” As the record does not show that the witness answered the question in the affirmative or in any other way, the assignment of error and the argument built upon it seems to be of no force whatever.
The defendant offered in evidence the testimony of William F. Hume, the only witness for the plaintiff, as preserved in the bill of exceptions taken in the last trial of the case. This was objected to as being incompetent, illegal and immaterial, and “because the counsel for the defendant allege none, nor point out any contradictions made by the witness from the evidence preserved in the bill of exceptions which he now offers to read.” The bill of exceptions having been identified, the court overruled the objection, and the plaintiff excepted. The testimony of the witness Hume as preserved in the bill of exceptions at the former trial was then read at length, consisting of twenty pages of transcript. This ruling was erroneous on any conceivable theory. The testimony was not admissible as a deposition, because the witness was present, and had given his testimony and had been cross-examined. Leeser v. Boekhoff, 38 Mo. App. 454.
We now pass to the instructions, and we must deal with those which were not the subject of exceptions as well as those which were, in order to aid the court and counsel, if we can, in another trial of the cause. . At the request of the plaintiff the court gave the following instruction; “1. If the jury believe from the evidence that Homer Harr paid Francis M. Carder in December, 1872, for the plaintiff in this suit, then the law presumes that said Francis M. Carder paid said money in a reasonable time thereafter to plaintiff in the absence of any evidence to the contrary.”
We do not understand- that there is any such presumption of law. There is a general presumption of right acting on the part of public officials which is sometimes extended to private persons, but it is one of
The next instruction given on behalf of the plaintiff was a similar instruction, relating to the money which Dr. Wright testified as having paid to the deceased in 1873. We are of opinion that the giving of it should be avoided on another trial for the reason above stated.
The court refused an instruction tendered by the plaintiff with reference to the application of the statute of limitations, and gave an instruction tendered by the defendant. The instruction tendered by the plaintiff and refused was as follows: ‘‘Although the jury may believe from the evidence that Francis M. Carder received from Dr. Wright, in A. D. 1873, money for the plaintiff, and that said Francis M. Carder received in December, A. D. 1872, money from Homer Harr for plaintiff, yet the statute of limitations can avail nothing, unless the jury shall believe from the evidence that said Francis M. Carder, or' some person for him, informed plaintiff thereof, or that plaintiff had knowledge thereof, five years before this suit was instituted in the probate court of this county; and, if the jury believe that nt> such notice of such collections was given, and that plaintiff had no knowledge of such collections, then the jury will find for the plaintiff in such sum as the evidence shows said Carder had in his
The instruction on this subject, tendered by the defendant and given, was as follows: “If you find from the evidence in the cause that F. M.' Carder, deceased, was in his lifetime the agent of the plaintiff to collect money for him in this state, and that the money sued for in this suit is the money paid to him by the witnesses, Dr. Wright, Harr and others, then an action accrued to plaintiff on the payment of the money to said Carder, deceased, and the statute of limitations of five years commenced to run in his favor immediately on the payment of said money; and, if the evidence shows that more than five years elapsed between the time of the payment of said money to said Carder and his decease in the year A. D. 1887, then the plaintiff cannot recover, and your verdict should be for the defendant.”
It is perceived that the proposition of law embodied in the plaintiff’s refused instruction is that the statute of limitations does not commence to run against an action by a principal against his agent for the collection of money, until the principal has been notified or has acquired knowledge that the agent has collected the money; whereas the proposition embodied in the defendant’s instruction, which was given, is that the statute commenced to run immediately upon the payment of the money to the agent. In giving this instruction the court seems to have proceeded upon the rule laid down by the Kansas City Court of Appeals in Aultman v. Adams, 35 Mo. App. 503, as applicable to the case where the collecting agent is an attorney at law. The court there held that, it being the duty of an attorney making a collection to pay it over at once
Now the evidence in this case entirely fails to show the nature and scope of the agency of Francis M. Carder for his uncle, Oliver Carder, this plaintiff. It does not show that it became his duty, on making the collections, to turn the money over immediately to the plaintiff. It does not negative the conclusion, that he may have been permitted to hold it until demand made by the plaintiff. There is no evidence as to the time when, if at all, the plaintiff became apprised of the fact that the collection had been made, except such as is found in the evidence of Dr. Wright in the colloquium which we have already set out, and that evidence related to an interview between the witness and the plaintiff which took place one or two years before the trial. To say the least then, it was necessary for the defendant, in order to invoke the statute of limitations, to show that the plaintiff had knowledge of the fact of the money having been collected more than five years prior to the death of the deceased. The giving of the defendant’s instruction above set out, and the refusal of the plaintiff’s, was, therefore, prejudicial error. As there is no evidence that Francis M. Carder, the deceased, was an attorney at law, there does not seem to be such a contradiction between our conclusion with reference to the statute of limitations, and the reasoning of the Kansas City Court of Appeals in Aultman v. Adams, 35 Mo. App. 503, as requires us to certify this cause to the supreme court under the constitutional mandate or as would produce a conflict of authority between the two courts.
For the ruling admitting in evidence the testimony of the witness Hume at the former trial, and for these