Edwards v. Warner
84 Mo. App. 200
Mo. Ct. App.
1900
Check Treatment
BOND, J.

On the twenty-sixth of July, 1888, defendant gave his note for $960.39 to E. Tillotson & Co., payable in ninety days at the German Savings Institution. In September, 1898, E. Tillotson, who had traded under the style of Tillotson & Company died, and plaintiff became his administrator, and finding this note among his decedent’s papers brought suit thereon.

The defense is payment by the giving of a renewal note upon the maturity of the one in suit, and payment of accrued interest and subsequent payment of the renewal note.

The cause was submitted to the court without a jury, and evidence adduced tending to prove the defense made in the answer. There was a finding and judgment for defendant, from which plaintiff appealed.

This appeal presents only one question. Did the trial court err in overruling plaintiff’s motion to exclude the testimony of defendant’s bookkeeper made after cross-examination of such witness by plaifitiff ? The rule is clear and well established that where one party to a contract or cause of action in issue and on trial is dead, neither the other party to such transaction, nor one who acted as his agent in consum*203mating it, is a competent witness, against the objection of the adverse party, as to anything said or done in the transaction with the decedent. R. S. 1899, sec. 4652. C. E. Donnell Newspaper Co. v. Adolph C. Jung, Vol. 2 Missouri Appellate Reporter, 883. The witness, whose testimony it was sought to exclude under this rule, stated that he was a bookkeeper and employee of the defendant; that from the entries made by him upon the books he was employed to keep he knew that a renewal of the note in suit was made by defendant on the date of its maturity and a check given for the accrued interest. He does not claim to have been present when any contract for such renewal was made between defendant and plaintiff’s intestate nor does he undertake to testify as to what occurred in any transaction between these parties, nor does he claim that he represented defendant in securing any such agreement from plaintiff’s intestate. On the contrary he states that whatever was done in this respect was done between defendant and plaintiff’s intestate at the office of the latter, and not in the defendant’s office, where the witness was employed. The substance of his testimony was confined to a simple statement of book entries made by him in the discharge of his duties as bookkeeper. It is apparent from this evidence that the witness gave no evidence inhibited by the statute, and although he stated on cross-examination that he acquired knowledge of the matter testified to by him as agent or representative of defendant, yet the agency thus admitted did not extend to any representation of defendant in procuring a contract from plaintiff’s intestate for the renewal of the note in suit, but referred simply to such information as had come to the witness in the capacity of bookkeeper and office employee of defendant. As it is not claimed that the evidence elicited from statements made by him of entries on the books in his charge was incompetent in itself, and as the record fails to show that he testified as to any matters happening between *204bimself and. the deceased, or any contract between defendant and the deceased, the trial court did not err in refusing to exclude th© testimony actually given by the witness, which the developments of the trial had shown was not obnoxious1 to the rule invoked. The colorable ground given to this motion by the admissions of the witness on cross-examination was entirely removed when the evidence sought to be excluded was examined and found to be wholly unrelated to any contract made by the decedent and witness or with the defendant.

No other errors being assigned, the judgment herein is affirmed.

Judge Bland concurs; Judge Biggs absent.