179 Mo. App. 567 | Mo. Ct. App. | 1913
(after stating the facts). — It appears the unsigned writing introduced in evidence was typewritten and that used on the trial was a carbon copy. The witness Crawford testified that what is known both as an original and a carbon copy were made at the same time, and the carbon copy was furnished to plaintiff by him. Plaintiff approved it as setting forth the terms of the agreement, and it seems
But though such be true, it is argued the writing was inadmissible as evidence because it was not signed, and, moreover, because it was not ma.de contemporaneously with the agreement. However, it was not introduced as the contract between the parties, in the usual sense of that term, hut rather as an admission on the part of defendant. There can be no doubt that it was inadmissible as a written contract, for it was not signed by either defendant or plaintiff. But the testimony is, that it was drawn up by Crawford, the secretary of defendant company, at the direction of Dr. Cale, its president, and in accord with the pencil memorandum made by Crawford, the secretary, at the time the oral agreement was entered into between plaintiff and defendant and under their joint supervision. It is true the pencil memorandum was not produced, and Crawford, the secretary of defendant company at the time this paper was reduced to typewriting, testifies that the typewriting was actually doné some three or four
The cases relied upon by defendant go to the affect — first, that for a writing to be competent in evidence when made by one party concerning a transaction without the knowledge of the other, as by setting it down in a book, it must appear to have been contemporaneously made. Such is the rule of Wells v. Hobson, 91 Mo. App. 379. Second, that a writing made without the knowledge of the adverse party, and, therefore, ex parte, contemporaneously with the transacfion in suit is not competent to be received in evidence for the purpose of consulting and considering its confents, except it be used to refresh the memory of the witness and as auxiliary to his testimony. Therefore, when it appears the witness distinctly remembers the transaction and can speak without the aid of such writing, the writing should not be received. Such are the cases of Vicksburg, etc. R. Co. v. O’Brien, 119 U. S. 99; Nat. Ulster County Bank v. Madden, 114 N. Y. 280; Meacham v. Pell, 51 Barb. (N. Y.) 65; McKelvey on Evidence, Sec. 233.
The principle thus-invoked seems to relate to such memorandums and writings as are made by one •party without the knowledge of, and separate and ,-apart from, the other. This being true, it is unavailing .’here, for in the instant case the writing was made, according to the evidence of Crawford, the secretary •of the company, by him on behalf of defendant and at the instance and direction of Dr. Cale, its president. .Much .of the argument proceeds, we believe, on the con
The mere fact that Dr. Cale denied he directed Crawford to reduce the alleged contract to writing and denied, too, that it was ever submitted to him for approval and that he ever approved it is not sufficient to render the paper incompetent in evidence as an 'admission against defendant company, for the evidence of Crawford is directly to the contrary — that is, that he, the secretary of the company, acting under the directions of the president drew up this paper and submitted it to the president who approved of its contents, but with the suggestion only that it might be better to put it in the form of a letter to plaintiff for him to accept. Of course, the weight and the value of the testimony together with the credibility of the witnesses was a question for the jury.
The judgment should be affirmed. It is so ordered.