First National Bank v. Wright

104 Mo. App. 242 | Mo. Ct. App. | 1904

BLAND, P. J.

(after stating the facts as above.) — 1. The evidence of defendant’s wife was admitted on the theory that she was his agent. The only evidence, if evidence at all, of agency is that she wrote her husband’s letters for him as dictated by him and kept his accounts and did his writing generally. At common law a married woman is disqualified to testify for her husband in a civil suit brought by or against him; but under clause 3, section 4656, B. S. 1899, she is not disqualified to testify for him in respect to £ £ any matter of business transactions, where the transaction was had. or conducted by such married woman as the agent of her .husband.” The transactions (if they may be called transactions) testified to as having been conducted by the wife for her husband as his agent, were writing his letters at his dictation and keeping his books of account. The transactions about which she may testify, under the statute, are transactions had with some person other than her husband, and not transactions had by the husband himself with some other person. There is not a word of evidence that'any agreement in respect to the cattle or the debt was made by and between Davis and Mrs. Wright, as the agent of her husband ; on the contrary, defendant testified that the transaction was conducted by himself with Davis and all his wife had to do with it was to write out the receipt for the cattle as dictated by Davis. She was not defendant’s agent in this transaction, the transaction was not conducted by her and she was an incompetent witness and her deposition should have been excluded.

2. We do not think the court erred in admitting defendant’s evidence of the contents of the letters he testified he had received from the bank and had lost. The evidence tends to show that the bank had no copy of these letters, if they had ever been written, andfit denied that they had been written. In this state of the evidence, the memory of defendant of the contents of these lost instruments was the best and only means of reproducing their contents. It is contended that there was no proof of the execution of .the alleged lost letter of introduction. The letter was not received in due course of mail, but if received at all, it was handed to defendant by Davis who was sent to him by plaintiff as its authorized agent; we think this was prim,a facie evidence at least of its execution.

3. If there is substantial evidence tending to show that Davis was authorized to settle or compromise the debt with defendant, it must be found in the letters of defendant or in those written by the bank to defendant, as both Davis and Caldwell, president of the bank, denied that any such authority was given. These letters must be construed with reference to the specific object had in mind when written. Mechem on Agency, sec. 306. The subject under consideration both by defendant and the plaintiff, and to which their letters specifically referred, was the present condition and the future care of the cattle. The defendant was without water or feed for them and voluntarily called the attention of plaintiff to this fact by his letter of September 7th. The cattle had to be cared for. Defendant was in a position that he could not care for them. It was to the interest of both parties that they should not be allowed to perish, nor so shrink in flesh as to become of little or no value. The bank and the defendant had this condition in mind during- the period of their correspondence as is shown by the letters read in evidence. Nowhere is the debt itself mentioned in this correspondence and the letters furnish no evidence whatever tending 'to prove that Davis was authorized to settle or compromise the debt. The alleged lost letters, the contents of which were testified to by defendant, do not mention the debt. The matters to which these letters refer were matters mentioned by defendant in his letters to plaintiff, to-wit, the cattle and their condition, and “the transactions” to be made by tbe man to be sent by tbe bank can not be construed to mean any transactions other than the possession and the care and disposition to be made of the cattle, hence these lost letters furnish no evidence that Davis was authorized to settle or compromise the debt itself. The circumstance that Davis paid the feed bill and had the note and mortgage in his possession, we think would (if there was other evidence tending to prove his authority to settle the debt) corroborate such evidence, but standing alone is of itself insufficient to prove such authority. Opposed to the evidence of defendant, that Davis did take the cattle in settlement and payment of the note and that he had authority to do so, stands out prominently the fact that, notwithstanding the debt, according to defendant’s contention, was paid and settled and that he knew Davis had in his possession the note and mortgage, yet he got neither of them, nor did he demand' them of Davis; instead he was contented to take from Davis the following receipt for the cattle:

“September 15, 1900.

“Received this day of D. W. Wright 52 head of cattle, the same being all now alive of the 54 head bought of J. B. McAlister Live Stock Commission Co. on June 21, 1899.

“W. H. Davis.”

This conduct on the part of defendant is wholly inconsistent with defendant’s contention, and not in accord with the usual course of business.

We think the evidence was wholly insufficient to submit to the jury the question of Davis’ authority to settle the debt.

The mortgage provided that on default of payment of the note, the cattle might be sold at Kansas City at private sale by the holder of the note. They were so sold by Davis as the agent of the bank. In these circumstances, the bank was the trustee of the defendant and was bound to sell at tbe best obtainable price in tbe Kansas City market on the date when sold. If they were sacrificed tbe bank should stand tbe loss. For tbe errors herein noted tbe judgment is reversed and tbe cause remanded.

Reyburn and Goode, JJ., concur, tbe latter in paragraphs 1 and 2.