140 Mo. App. 62 | Mo. Ct. App. | 1909
This is an action on a promissory note of the following tenor:
“Memphis, Mo., July 8th, 1903.
“Six months after date, for value received, we promise to pay to the order of the Hill-Dodge Banking Company, (a corporation), at their banking house in Warsaw, Illinois, the sum of Seven Hundred and Fifty Dollars. With interest at the rate of 7 per cent per annum from date until paid, and if the interest is not paid annually, to become as principal and bear the same rate of interest; and agree to pay all costs and attorney’s fees should this note be collected by an attorney, by suit or otherwise, after default in the conditions thereof. If the interest is not paid annually, both principal and interest may be considered as due and collectible at the option of the holder.
P. O. Revere, Mo. A. C. Loomis,
No. Harvey Loomis.
Due
Endorsements: “$27.25 Paid ac. interest 2-27-04.”
The petition alleges Harvey Loomis died intestate in Clark county in the year 1904, and defendant Charles Hiller was appointed and qualified as administrator of said Harvey’s estate; alleges A. C. Loomis and Harvey Loomis executed and delivered the foregoing note to plaintiff, paid thereon February 8, 1904, the sum of $27.25, which was duly credited, made no further pay
Harvey Loomis, deceased, was the father of A. C. Loomis, and the evidence goes to show the two were equal partners in farming and raising stock and each signed notes and other instruments when occasions arose. Mrs. Anna Loomis McLemore, a resident of Concho county, Texas, where the Loomis family now reside, testified she was a daughter of Harvey and a sister of A. C. Loomis, and that the two “were equal partners in farming and stock, except the horses;” that A. C'.' Loomis had been for years authorized to sign papers of all kinds for Harvey Loomis. Mrs. Frances Loomis, mother of A. C. and widow of Harvey, was permitted to testify for plaintiff over the objection of the administrator that she was not a competent witness becausé the widow of the deceased, and the law did not permit her to testify to any conversations of her husband whether made to her or to third parties. She said her husband authorized A. C. Loomis to sign her husband’s name to any business matter that came up: that the two
1. Color of authority may be found for the proposition that lunacy, or mental weakness of such intensity as to deprive the patient of ability to understand a business transaction, may be given in evidence under a general denial in an action on a contract. The point was decided by this Court in Cavender v. Waddingham, 2 Mo. App. 511, an action where the defense to the contract declared on was mental incapacity from drunkenness. Though that decision was pronounced by a strong court and the opinion was written by an erudite judge, we think its doctrine is inconsistent with a fundamental rule of the law of pleading, and was pronounced in consequence of the notion that a contract entered into by a person when non campos mentis is necessarily void. The opinion said our practice act requires many defenses which formerly might have been proved under the general issue to be alleged specially, but denied mental incapacity to make a contract was one of them. That said rule of pleading was declared because the court was under the impression that the contract of a person metally incompetent was void ab initio and the rule of pleading flowed logically from the nullity of the contract, is shown by the quotation in support of the
What the Supreme Court said was relevant to the facts before it, the case under advisement being one on a promissory note to which the defendant testified his signature had been procured by a fraudulent misrepresentation of the contents. An instrument executed under those circumstances is void from the first, if the signer is not careless, and there is a show of reason for saying proof of the fact may be introduced under a general denial or plea of non est factum. If it ever was the doctrine at common law that mental incompetency to contract might be proved under the latter plea in an action on a writing obligatory, it was on the theory that the infirmity of the promisor rendered any agreement he might make void from the first. Only those defenses were admissible under said plea which disproved the execution of the instrument in point of fact, “or that its execution was absolutely void in law; as, for example, on the ground that the alleged obligor or covenantor was a married woman or a. lunatic.” [Stephens, Pleadings (Andrews Ed. 1'894), sec. 113 and citations.] The same treatise says in the same connection, “but if the defendant’s case consists of anything but a denial of the execution of the deed, or some fact impeaching the validity of its execution, the plea will be improper.” At the foot of that text is this note: “Matters which make the deed voidable and not absolutely void — such as duress — must be specially pleaded and cannot be given in evidence under non est factum[Com. Dig. Pleader (2 W. 19), 2 Inst. 488]. In Collins v. Trotter, 81 Mo. 275, an action on a promissory note, two of the defendants who were deaf mutes, answered by guardian they were of unsound mind and incapable of performing a legal act
“We are of the opinion that the court erred in the conclusions of law pronounced upon the facts as found. There can be no doubt that a. deed, or other contract of an insane person, will generally be held invalid, yet, as is said by Mr. Pomeroy, ‘While this rule is generally true, the mere fact that a party to an agreement was a lunatic will not operate as a defense to its enforcement, or as a ground for its concellation.’ ‘Where a conveyance or contract is made in ignorance of the insanity, with no advantage taken, and with perfect good faith, a court of equity will not set it aside, if the parties cannot be restored to their original position and injustice would be done.’ [2 Pomeroy on Equity Jurisprudence, sec. 946, and authorities cited; Gribben v. Maxwell, 34 Kan. 10; Ins. Co. v. Hunt, 79 N. Y. 544; Wirebach v. Bank, 79 Pa. St. 549; 11 American & English Encyclopedia of Law, 136.]”
See to the same effect Cutler v. Zollinger, 117 Mo. 92, 101; Wells v. Ben. Assn.; Rhoades v. Fuller, supra; McAnaw v. Tiffin, 143 Mo. 667, 679; Jamison v. Culligan, 151 Mo. 410, 416. The law is clear that the note in suit was not void from the first as against Harvey Loomis, even if the latter was laboring under such mental infirmity as disqualified him to contract, but was, at most, only voidable upon proper terms; and we hold this defense was not available to the administrator under a general denial. And as far as Cavender v. Wadding-
2. Error is assigned on account of the reception of the testimony of A. 0. Loomis, who is a party both to the note and to the action. According to the decision in Citizens Ins. Co. v. Broyle, 78 Mo. App. 364, and Vandergrif v. Swinney, 158 Mo. 527, 533, he was a competent witness notwithstanding these facts. Those decisions are squarely in point, but there have been so many contrary judgments pronounced on the statute in question we hesitate about applying it in any case, for fear of getting into conflict with a prior adjudication. At common law any interest would disqualify a party and the main purpose of the statute, as shown in its first clause, is to remove the disability of parties interested in the event of litigation, except in certain circumstances mentioned in the provisos, and the question is not whether the witness was interested in the result, but whether he came within one of the provisos — whether he sustained such a-relation to the contract or the litigation, that the statute did not remove the disability imposed by the common law because of his interest. [R. S. 1899, sec. 4652; Banking House v. Root, 132 Mo. 256; Savings Bank v. Slattery’s Admr., 166 Mo. 620.] The first proviso says Avhere one party to a contract, or cause of action in issue and on trial, is dead or insane, the other party to such contract or cause of action shall not be permitted to testify in his own favor, or in favor of any party to the action claiming under him. The words, “the other party to said contract or cause of action shall not be permitted,” etc., signify the party with whom the deceased made a contract and not a person who joined with the deceased as a co-contractor. It is argued A. C. Loomis is within the intention of the statute because it was to his interest for his father’s estate to be held liable on the note, as thereby he would escape liability pro tanto. But the words of the clause do not suggest a purpose to disable living obligors to
3. As to the supposed incompetency of the widow of the deceased to testify, we will not inquire, because she gave no evidence which was not proved abundantly by other witnesses and its admission, even if improper, which we do not concede, did no harm.
The judgment-is affirmed.