163 Mo. App. 641 | Mo. Ct. App. | 1912
This suit originated in the probate court of Vernon county, and is based on the claim for alleged breach of warranty against the administrator of the estate of Henry Zweigart, deceased.
In 1899 Henry Zweigart conveyed to plaintiff six hundred and sixty acres of land in Vernon county, Missouri, in exchange for four sections of land in Texas, and the payment of about $1364, in money. After-wards, one Jason Campbell brought a suit against the plaintiff claiming the remainder in fee simple in 160 acres of the land subject to the life estate of his mother, Cynthia, and also afterwards one G. L. Mc-Cully and others brought suit against plaintiff claiming the remainder in fee simple, subject to the life estate of John F. McCully in the other quarter section of said land. Both resulted in favor of plaintiffs therein and the court adjudged that plaintiffs have title as claimed, subject to the respective life estates mentioned. Afterwards, plaintiff bought the interest of the said remaindermen in said land for the sum of $7000. This suit is to recover against the estate of deceased money paid out by plaintiff to perfect his title. The plaintiff’s evidence tended to show that the price of the Texas land was ten dollars per acre and the Missouri land was forty-two dollars per acre, and that plaintiff paid deceased $1364, the difference between the two at their agreed valuations.
A witness by the-name of Webb, who was acting-as agent for plaintiff, was allowed to testify at the former trial without objection that he consummated the trade between the parties, and that the parties agreed upon the valuations placed upon their lands. On the trial anew objection was made to the competency of said Webb to prove the contract, the other party to the contract being dead. The objection was sustained, but he was allowed to testify that he was present when plaintiff and deceased consummated the exchange of lands and he heard what was said at that time, viz.: “Mr. Zweigart said that he was there ready to comply with his contract with Mr. Howard; and Mr. Howard, he paid him the $1364 and took his land at forty-two dollars an acre, and was to take Mr. Howard’s land at ten dollars per acre.” Defendant moved to strike out said evidence but the court refused to so do.
On account of the ruling of the court in rejecting the testimony of Webb as to the part he took in the transaction the plaintiff’s case was not as strong as it was on the former trial.
Proper proof was made as to the value of the different remainders in fee in the land conveyed by deceased to the plaintiff. Defendant offered to prove the value of the life estates in the land, which offer the court refused.
The jury returned a verdict in favor of plaintiff for $7000 from which defendant appealed.
The appellant'makes three assignments of error. First. The court erred in admitting evidence of the witness Webb as to what took place in Mr. January’s office at the time the deal was closed. Second. The court erred in giving instruction No. 1 asked by plaintiff. Third. The.court erred in rejecting the testi
In defendant’s motion for a new trial the following was the only objection made as to the admission of evidence: “Because the court erred in the admission of incompetent, immaterial and irrelevant testimony offered on behalf of plaintiff.” On this question it is held that: “The incompetency of a litigant to testify concerning an agreement between himself and a deceased party, cannot be considered on appeal if the attention of the trial court was not called thereto in the motion for a new trial. [Needles v. Ford, 167 Mo. 495; Pitts v. Sheriff, 108 Mo. l. c. 115.] It is insisted by appellant that a different rule is announced in Collier v. Lead Company, 208 Mo. 246. But we do not think so. The holding there is that it is sufficient if the motion for a new trial alleges: “That the finding is unsupported by the evidence,” or that, “The verdict was wholly unwarranted by the testimony.” The evidence in question was competent as it related to the issue on trial. But there is a material difference between an objection to evidence as incompetent and an objection as to the competency of a witness to testify, as is clearly pointed out in the two decisions cited. But we are of the opinion that the witness was competent to testify as to the matter in dispute. It is true he was the agent of plaintiff and the other party to the contract was dead, but he was not acting at the time in the capacity of agent. The parties to the contract themselves were each acting for himself and the witness was no more than any other by-stander who might have been present. The conversation was not had with him, but with his principal, therefore, he is not disqualified under the statute.
We think the objection to instruction No. 1 given for plaintiff is without merit as it is strictly in compliance with the ruling heretofore made in this case.
