40 Mo. 63 | Mo. | 1867
delivered the opinion of the court.
This was a proceeding instituted originally in the Probate Court of St. Louis county upon an account presented by the appellant Fenn against the estate of Francis Dugdale, deceased, for money paid to the use of decedent, upon a note executed by Dugdale and upon which plaintiff was alleged
“The conversation between Bridget Earrell (witness for the defence) and Charles L. Hunt is not evidence to prove any fact in said cause, and is not evidence for any purpose except to impeach the witness Hunt.”
On the part of the defendant, the following were given:
“If the jury believe from the evidence that the consideraation of the note was in fact a part payment to Dugdale for moneys due to him by the company, but that because of the inability of the company to pay its officers by their individual names endorsed the note sued on, taking the receipt of Dug-dale for the sum thus paid, then the jury must find for the defendant.”
“ If the jury believe from the evidence that the note sued on was made between the parties with the understanding*66 that it was to be deducted from the funds payable to Dug-dale by the Central Plank Road Company, and it was so deducted, then plaintiff is not entitled to recover, and the jury will find accordingly.”
There is no testimony in the cause upon which the two latter instructions could be based except the statement of Mrs. Farrell (who testified for the defenee), together with the receipt spoken of, and the entries made upon the books of the company. This latter evidence however, unconnected with the statements of the witness, amounted to nothing. We must infer, therefore, that notwithstanding- the instruction given for the plaintiff in reference to the testimony of this witness, still as the court had assumed that it did tend to prove certain facts in the cause and upon which the above declaration of law given for the defendant rested, the jury felt authorized to weigh it and did render their verdict accordingly. If the case had gone to the jury simply upon the evidence of the two witnesses explained by the instruction given for the plaintiff, and of which the defendant neither complains nor of which any modification was asked in any subsequent instruction, the verdict must inevitably have been for the plaintiff.
The note was payable to Fenn ; there was no contradiction of the fact that he had paid-the amount of the principal and interest due upon it, and had thereby re-acquired it from the parties to whom it had been negotiated ; and admitting that Mi-s. Farrell’s statements of the conversation between herself and Hunt, the secretary of the company, were true, still there was no evidence that Fenn was present, or that he had in any manner assented to them. The plaintiff’s case was the note with evidence of the fact of his being an accommodation endorser merely, and of its payment by him. Therefore no statements of Hunt could bind him unless his assent to the same had been made to appear satisfactorily.
The judgment of the Circuit Court must therefore be reversed, and the cause remanded for further trial.