Lohnes v. Bakes
137 S.W. 282
Mo. Ct. App.
1911
Check Treatment
NIXON, P. J.

I. Aрpellant complains of the action of the trial court in permitting plaintiff' to testify as a witness over appellant’s objection. Our statute (sec. 6854, R. S. 1909) provides: “. . . and where an executor or administrator is a party, the other party shall not be admitted to testify in his оwn favor, unless *402the contract in issue was originally made with a person who is living and competent to testify.” It was expressly held in the case of City of St. Joseph v. Baker, 86 Mo. App. 310, under this provision, that where one party is an administrator or executor, the other should not be permitted to testify. Scott v. Riley, 49 Mo. App. 1. c. 253, 255, was a replevin suit. The ‍‌​‌​​‌​‌​‌​‌​​​​​‌​​‌​​​‌​‌‌​‌‌​‌‌​​‌‌‌‌​‌​‌​‌‌‌‍plaintiff sought to establish a gift causa mortis and was permitted to testify in this regard. This was held erroneous. Seе also, Meier v. Thieman, 90 Mo. 1. c. 441, 2 S. W. 435; Ess v. Griffith, 139 Mo. 1. c. 328, 40 S. W. 930; Scott v. Burfiend, 116 Mo. App. 71, 92 S. W. 175; Reynolds v. Reynolds, 45 Mo. App. 1. c. 627; Bagnell v. Bank, 76 Mo. App. 1. c. 124, 125. These authorities are in point and amply sustain appellant’s contention. It may be remarked that what paintiff stated in his examination in chief had nothing to do with the contract of gift and that all the damaging testimony from his lips vas elicited by the defеndant himself. But this cannot change the law that he should not have been permitted to take the stand. Death had sealed his sister’s lips and the law sealed his.

II. Anuis Z. Fowler in, her deposition was allowed to state the contents of a letter received from her sister, Mary E. Bakеr, a short time before the latter’s death. This testimony was the strongest adduced to prove the gift and stood practically alone ‍‌​‌​​‌​‌​‌​‌​​​​​‌​​‌​​​‌​‌‌​‌‌​‌‌​​‌‌‌‌​‌​‌​‌‌‌‍except for plaintiff’s own statement on cross-examination, “The horse is mine, she gave it to me.” The only foundation laid for this seсondary evidence of the contents of the letter Avas the statement of the deponent, “I have not got the letter now.”

We are fully aware that these matters are largely Avithin the discretion of the trial court. [Henry v. Diviney, 101 Mo. 1. c. 384, 13 S. W. 1057.] Had she been present as a witness, no doubt the court would have carried the inquiry further and ascertained where the letter was, Avhether it had been lost or mislaid or de *403stroyed. [Meyers v. Russell, 52 Mo. 26; Henry v. Diviney, snpra; Redman v. Piersol, 39 Mo. App. 1. c. 175.] But the statement of deponent, “I have not got the letter now,” is ambiguous. Does she mean that the letter had-been lost or mislaid or destroyed? or does she mean that she did not have it with her at the place where her deposition was being taken? It was plaintiff’s duty to make this clear and at least show that the primary evidence was not accessible. Her statement of the contents of this letter was vеry damaging to defendant’s case and it should have been excluded under the circumstances. “And if a witness being examined in a foreign country, upon interrogatories sent out with a commission for that purpose, should in one of his answers state the contents of a letter which is not produced, that part of the deposition will be suppressed, notwithstanding, he being out of the jurisdiction, there may be no means оf compelling him to produce the letter.” [Greenleaf on Evi. (16 Ed.), p, 175.]

III. The parties both agreed in the circuit court to try the case with-a jury of nine men. The court, over defendant’s objection, instructed the jury as follows: “If you cannot all agree upon a verdict, but if seven- ‍‌​‌​​‌​‌​‌​‌​​​​​‌​​‌​​​‌​‌‌​‌‌​‌‌​​‌‌‌‌​‌​‌​‌‌‌‍or more of you do agree, then you should return such verdict into court signed by all the jurors agreeing thereto.” The verdict in this case was signed by seven of the jurors, and appellant urges this as error.

Section 7280, Revised Statutes 1909, provides: “In all trials of civil actions in any сourt of record in this state a jury shall consist of twelve men possessing the qualifications as are or may hereafter be provided by law: Provided, that three-fourths or more of the jurors concurring may return a verdict, which shall have the same forcé and effect as thоugh rendered by the entire panel. If a verdict be rendered by the entire panel the foreman alone may sign it, but if rendered by a less *404numbеr than the entire panel such verdict shall be signed by all the jurors who agree to it.”

This has become a fixed principle in pur system of jurisprudence. It was thought that such, a provision would afford substantial justice and at the same time hasten the termination of suits. To deny the plаintiff in this case the privilege of this principle would allow one party to profit from a fault as much his own as that of his adversary. Very littlе foresight would have disclosed that just such a situation was more than likely to arise. It will not be presumed that plaintiff wished his case submitted to a jury of nine who must all concur in a verdict for him. If the parties desired to- take this jury out of the statutory three-fourths, rule, they should have made suсh an agreement. We are disposed to hold that material -error did not ensue. The Constitution itself seems to put this matter beyond questiоn. Sec. 28, art. II, provides: “ . . . And that in the trial by jury of all civil cases in courts of recoi’d, three fourths of the members of the jury ‍‌​‌​​‌​‌​‌​‌​​​​​‌​​‌​​​‌​‌‌​‌‌​‌‌​​‌‌‌‌​‌​‌​‌‌‌‍concurring may render a verdict. ...” This provision is self-executing. [Sharp v. National Biscuit Co., 179 Mo. 553, 78 S. W. 787.]

IY.' Appellant argues that the trial court erred in overruling his demurrer to plaintiff’s evidence interposed at the close of plaintiff’s evidence. The trouble with this contention is that after the demurrer was оverruled, defendant did not rest on he demurrer but put in his tetimony. That waived the demurrer. [Frye v. Railway, 200 Mo. 377, 98 S. W. 566; Remmers v. Shubert, (Mo. App.), 134 S. W. 1042.] The demurrer was not again presented at thе close of all the evidence and the court was not asked to instruct the jury to return a verdict for the defendant. Hence the сourt committed no error in submitting the case to the jury.

Y. It is quite unnecessary for us to consider appellant’s assignment in his motion for a new triаl that the verdict is contrary to and against the weight of the *405evidence. Under the disposition we are making of this case it will be subject to re-trial when the evidence may be entirely ‍‌​‌​​‌​‌​‌​‌​​​​​‌​​‌​​​‌​‌‌​‌‌​‌‌​​‌‌‌‌​‌​‌​‌‌‌‍different and a discussion of the sufficiency of the evidence in this record would serve nо useful purpose.

Any discussion of the law as to gifts inter vivos at this late day can only involve a re-statement of what has been announced time and again. Macfarlane, J., In re Estate of Soulard, 141 Mo. 1. c. 656, 657, 43 S. W. 617, said: “To constitute a valid gift inter vivos, there must be an intention to give and a delivery to the donee, or to someone for him, of the prоperty given. An intention of the donor to give is not alone sufficient; the intention must be executed by a complete and unconditional delivery. Neither will a delivery be sufficient unless made with an intention to give. The transaction must show a completely executed transfеr to the donee of the present right of the property and the possession. The donee must become the owner of the рroperty given. (Oases cited.) A gift cannot be made to take effect in the future. Such a transaction would only amount to a prоmise to make a gift in the future, and being without consideration is void. (Cases cited.) ” The instructions given by the court on this question substantially embodied the above principles.

For the reasons stated, the judgment will be reversed and the cause remanded.

All concur.