81 Mo. App. 360 | Mo. Ct. App. | 1899
In substance the petition alleges that on November 8, 1895, one A. Thoman and defendant- executed and delivered to plaintiff their promissory note for $800, with interest at 8 per cent from maturity; that Tho-man executed the note by signing it on its face, and defendant by writing his name across the back; that at the maturity of the note it was taken up by a new note executed in the same
The answer was a general denial and a denial under oath that defendant executed the original note of $800. The issues were tried by a jury, who found for plaintiff. Judgment was accordingly rendered for plaintiff, and defendant appealed.
Plaintiff, over the abjection of the defendant, was permitted to testify in his own behalf. Ble testified that Thoman signed .the original note on its face, and that defendant wrote his name across the back of it in his (plaintiff’s) presence, and that in that condition it was delivered to and accepted by him in the presence of defendant. Ble was also permitted to testify that in good faith he received payments from time to time from Thoman and renewal notes signed by Thoman on the face 'and with the name of defendant across the back believing the signatures to be genuine, and that he had surrendered the original note to Thoman when he took the first renewal note and all the renewal notes, except the last, dated August 23, '1897, and that when he discovered that the indorsements of defendant’s name on the renewal notes were forgeries he repudiated them. Other witnesses testified that on a -trial before a justice in a suit against defendant on the last renewal note, the defendant testified as a witness that he did indorse 'the original note of $800, but not the renewal note then sued on. Gustave A. Buder
Mr. Muench: We object to that testimony.
The Court: He may state what Mr. Buddecke testified before the justice, because that was done openly.
To which ruling of the court in refusing to sustain said objection, defendant at the time duly excepted.
Witness then continued that defendant, Buddecke, at that time stated, as witness recalls it, that he had signed the note which Henry took; that he indorsed the original note of Thoman, and also several of the renewals on reduction of the original.”
Defendant testified that be did not indorse the original note or any note payable to the plaintiff. Testimony was offered also on the part of the defendant to the effect that neither the original, nor any of the renewal notes were found among the papers of Thoman after his death.
(1) Appellant contends that plaintiff was not a competent witness for any purpose, Thoman the other party to the contract being dead. We think he was a competent witness to the physical facts that defendant indorsed the note in his (plaintiff’s) presence, and that after its indorsement it was in the presence and with the knowledge of defendant delivered to him. Has testimony to these physical facts gave him no advantage over the defendant, but placed him in a position of equality with his adversary. The spirit of the statute (section 8918) is not to close the mouth of the living party to
(2) The witness G. A. Buder disqualified himself to testify on the trial, when he disclosed the fact to the court and jury that his testimony of what defendant testified before the justice, was first imparted to him by the defendant as his attorney. He placed himself in a position where he could not testify to what was said by defendant as a witness in the justice’s court, without at the same time and in the same breath disclosing to the jury what was communicated to him by the defendant as his attorney. The intercourse between client and attorney should be protected by profound secrecy, says Mr. Greenleaf. 1 Greenl. on Evid., see. 240. Our state has reinforced the rule by statutory enactment (R. S. 1899, section 8925), and under no guise or subtlety should an evasion of the rule be permitted. State v. Dawson, 90 Mo. 149; Deuser v. Walkup, 43 Mo. App. loc. cit. 627. The court should have directed the plaintiff to withdraw this witness and proceed without his testimony, or continue his cause to a subsequent term, or by consent to a subsequent day of the same term. From the testimony of this witness plaintiff
(3) Appellant also contends that tbe court erred in giving the following instruction:
“Tbe jurors are instructed that if they believe and find from the evidence that on tbe 8th day of November, 1895, A. Tboman signed and executed a note whereby be promised for value received to pay to tbe order .of plaintiff tbe sum of eight hundred ($800) dollars, with interest thereon, after tbe maturity of said note, at tbe rate of eight per cent per annum, and that at tbe time of tbe execution of said note and before its delivery, it was signed by defendant on-the back thereof.
“And if tbe jurors further believe and find from the evidence that at maturity of said note, plaintiff, in good faith, surrendered said note and took another note purporting to have been indorsed by defendant, wbicb said note was not as a matter of fact indorsed by defendant, and that thereafter plaintiff took other notes under tbe same circumstances, and under tbe belief that tbe signatures thereon were tbe genuine signatures of defendant, when in fact they were not, and surrendered said notes under that- belief * * .
Appellant’s contention is that tbe court did not explain 'to the jury tbe meaning of tbe phrase “in good faith,” which occurs in tbe second clause of tbe instruction. This phrase has no such technical or occult meaning as to make it incomprehensible to tbe mind of tbe ordinary juryman. Its meaning is perhaps as well understood by the lay members of society as any other ordinary phrase in tbe English language, besides tbe phrase was unnecessarily used in tbe instruction. The testimony is all to tbe effect that tbe renewal notes were all taken in tbe usual course of business. There was nothing
