87 Mo. 16 | Mo. | 1885
Lead Opinion
Mrs. Eliza M. Perry died in February, 1873, in the city of St. Louis, at the age of seventy-six, possessed of a large estate, consisting principally of notes, and money. She was a childless widow, and the defendant, Mrs. Mary A. Way, was her cousin, between whom and herself existed intimate and cordial relations. John. Gk Priest is the executor of the last will and testament of Mrs. Perry, and, as such, institute 1 this suit against James C. Way and Mary Ann Way, his wife, charging in a second amended petition, that from January, 1870, until February, 1873, Mrs. Perry was an inmate of the house of defendants; that she was old and infirm, and possessed of large means, consisting principally of-notes and money deposited to her credit in the National Bank of the State of Missouri. That she intrusted the drawing of checks to be signed by herself, and the management of her said bank account and the loaning and investment of her moneys, to James 0. Way. That between January 1, 1S72, and February 1, 1873, he made out checks to bearer signed by Mrs. Perry, drawn upon, her said bank account, and aggregating $24,000, by which there was withdrawn from Mrs. Perry’s funds said sum of money, which was received by Mr. and Mrs. Way, and converted to the separate use of the latter, without the
The petition then describes several lots, or parcels of land, in the city of St. Louis, in which nineteen thousand dollars of said sum of money is alleged to have been invested as above charged, and, also, a lot in St. Louis, held by Edwin Harrison, as trustee, for the sole and separate use of Ml’s, Way, and concludes with a prayer for judgment against defendants for twenty-four thousand dollars, with interest, and that all of the above described property, held to the use of Mrs, Way, be charged with a lien for said amount, and sold, etc. The answer is a general denial.
Since the appeal to this court, James C. Way died, and the cause not having been revived against his representatives, Mrs, Way is now the sole defendant. The circuit court referred the cause to A. N, Crane, Esq., to take the testimony and make a report, which he did, recommending the dismissal of the bill, which was done by. the court, after a hearing of exceptions to the report of the referee. On appeal to the St. Louis court of appeals, the judgment of the circuit court was reversed, and a decree entered in accordance with the prayer of the petition, and from that judgment defendants appealed to this court.
An analysis of the petition is necessary in order to ascertain the precise issues made by the pleadings; in other words, exactly what cause of action is stated in the petition, the answer being a general denial. It charges that betwixt Mr. Way and Mrs, Perry there was a confidential relation, and that he “made out checks payable to bearer, signed by said Eliza M. Perry, and drawn upon her said bank account, aggregating, etc,, by which there was withdrawn from the funds of said Eliza M. Perry, the said sum of money which was received by
The charges against Mrs. Way are two fold: (1) That on checks drawn by her husband and signed by Mrs. Perry, they withdrew from her bank account twentyfqur thousand dollars, which was received by them and converted to her separate use, without Mrs. Perry’s knowledge or consent. (2) That Mrs. Way fraudulently abstracted the money, etc. If either of these charges is proved against her, she is liable on this action. It is not charged that Mr. and Mrs. Way, or either of them, procured a gift of the money bjr fraudulent means, or by the exercise of undue influence over Mrs. Perry. On the contrary, the idea of a gift is utterly inconsistent with the allegation of the petition that “the money was fraudulently abstracted,” etc. Therefore, if a gift was proved and the evidence should establish that it was procured by Mrs. Way, by the exercise of undue influence over Mrs. Perry, plaintiff could not, in this action, recover, for neither at law, nor in equity, can the plaintiff state ■one cause of action and recover upon another, totally different in its essential elements, certainly not upon one
As to the case against Mr. Way, the relation between him and Mrs. Perry was not intimate, or confidential, hut, on the contrary, the testimony establishes, beyond any controversy, that she positively disliked and distrusted him. To that effect is the testimony of Judge Gantt, Mrs. Allen, Mrs. Lindell, and others. It is true that she employed him to perform certain unimportant services for her, not involving the surrender of her own judgment to his, or indicative of more than ordinary, or any especial, confidence in him. It was confined to his filling up checks, at her request, for her to sign, performing errands to the bank, and. making and keeping an inventory of her promissory notes, and accounts of payments made to herpn them. He was not fully entrusted with the business of negotiating loans of her money. In these matters she invariably consulted Judge Gantt, lier legal adviser. She sometimes acted upon Mr. Way’s judgment as to the value of securities offered for loans solicited, and occasionally consulted others, but oftener Mr. Way than any other person, and this may be accounted for by the fact that she resided in his family and it was more convenient to get his services in these matters. There is no testimony in the cause proving, or tending to prove, that he ever had the control or management of her money. That he was occasionally entrusted with small amounts to pay specific items of her indebtedness, is true, but that he was her financial agent there is no proof.
With regard to the checks upon which the money alleged to have been abstracted was drawn, there is not a particle of testimony to prove that after he wrote the body of the checks and delivered them to her to sign, he ever had possession of them, or knew how .she had disposed of them,- until he received them from his wife.
As to the charges against Mrs. Way, there'is absolutely no evidence which tends to prove that she fraudulently, or otherwise, abstracted the money, or got possession of the checks upon which it was drawn without the consent of Mrs. Perry. The only matter in the whole record which furnishes any foundation even for a conjecture that there was something wrong in the transaction, is Mrs. Way’s bad memory with respect to it. She a.could not state what amounts of money she received as gifts from Mrs. Perry in 1871, 1872, or 1878. Could not approximate to it, notwithstanding these checks, aggregating twenty-four thousand dollars, were all received between January, 1872, and November, 1872. While this is surprising, yet it is to be recollected that her deposition was taken in February, 1881, nearly nine years, after the transactions in question. Taken before the amended petition was filed, upon which the cause was. tried, and taken under the original petition, not preserved in this transcript. Her attention was not called, either by plaintiff’s counsel or her own, to the identical checks in controversy. She seems to have forgotten, however, other important facts, which but few persons would have forgotten. She did not recollect that she kept her bank account with the Haskell Bank, when the fact that she did is beyond dispute, and while she was keeping her account with that bank she must have known it. After her deposition was read, not as a deposition, but as her admissions, the privilege of explaining certain portions of it was denied her, and, in passing upon her testimony, so used against her, these facts are not to be overlooked. The use made of that deposition, however, was wholly unauthorized. The statute, section 4012, provides that: “Any party to any civil action or proceeding may com
Pomeroy v. Benton, 77 Mo. 82, is authority in support of the practice, but the authorities there cited give no sanction to it. The deposition of a person taken in a cause may be read against him as his admissions in another cause. In Kritzer v. Smith, 21 Mo. 296, and Charleson v. Hunt, 27 Mo. 34, cited in Pomeroy v. Benton, the question was whether a deposition taken in another cause could be read as admissions against deponent. In Kritzer v. Smith, Judge Scott said: “Iwhatever light it may be viewed, we cannot see any ground on which .the objection to the deposition of the defendant Smith, given in another action, could be upheld.” In Charleson v. Hunt, 27 Mo. 34, Judge Richardsonsaid: “On the trial of the issue made by the interplea, the plaintiff offered in evidence the deposition of Hunt which had been previously taken in a suit between- Lattimer et al., plaintiffs, and St. Michel, defendant, which was excluded because Hunt was in court in
In 1873 Mrs. Perry made her will, by which she bequeathed to Mrs. Way an amount of money, which, added to the twenty-four thousand dollars, was but little short of half of her entire estate. Mrs. Perry was a woman of more than ordinary sagacity and prudence, as exhibited in the management of her estate, and there was no material impairment of her mental faculties to the day of her death. Her will was executed but a short time before that event, and the testimony leaves no room for doubt that she was then a woman of more than ordinary intellect and business capacity. She knew what she had and where it was, kept the run of her promissory notes and money, and if one of her notes was out of place or- missing, soon discovered it. On one occasion a note of ten thousand dollars against Mr. Howe was missing, and she made inquiry of Mr. Bugg in regard to it the first time she saw him afterwards, stating the name of the payor and the amount of the note. This occurred
The case .is narrowed down to these propositions: (1) That Mrs. Perry delivered the checks to Mrs. Way, or (2) the -latter fraudulently obtained possession of them without the knowledge or consent of Mrs. Perry. Of the latter there is no proof, and that they were delivered to Mrs. Way by Mrs. Perry, we think, there can, on the evidence, be no controversy. Such being the fact, if not intended as gifts to Mrs. Way, and she diverted them from the use for which Mrs. Perry delivered them to her and appropriated them to her own use, the burden is upon the plaintiff to prove it, and this he has utterly failed to do. No confidential relation is alleged to have existed between Mrs. Perry and Mrs. Way. Mrs. Way was not her daughter, nor, as plaintiff asserts, her adopted daughter. Her possession of the checks, and subsequently of the money dra>vnupon them, wasj'prima facie evidence of her ownership. This proposition is
Mrs. Way’s being in possession, “afforded a prima facie presumption of ownership,” and this is not rebutted by proof that Mrs, Way, years after, had but an ■indistinct recollection of. the condition of- her estate in '1871, 1872, and 1873. That one cannot recollect what property he had at a given time, or how he acquired or •disposed of it, does not warrant a judgment stripping him of his possessions, on the mere surmise that he did not come by it honestly. Mrs. Way’s testimony is not .as clear and satisfactory as might have been expected; ‘.but when it is considered that she had never managed her own pecuniary affairs ; that she was not familiar with the details of such business, entrusting her own to the management of her husband, relying upon and confiding in him, it is not so surprising that after the lapse of eight or nine years she would have but an indistinct ■.recollection of business transactions which business men 'would be expected to remember. These, in connection
Dissenting Opinion
Dissenting-. — Regarding the majority opinion in respect of the inadmissibility of the deposition of Mrs. Way, as radically wrong, at war with reason, precedent and one of the plainest and most fundamental rules of evidence, I dissent; and will endeaVor briefly to give my reasons therefor.
In Slatterie v. Pooley, 6 M. & W. 669, Lord Abinger said ££ that he had always considered it as clear law that a party’s own statements were in all eases admissible against himself.” Greenleaf says: £tIn regard to depositions, it is to be observed, that, though informally taken, yet as mere declarations of the witness, under his hand, they are admissible against him, wherever he is a party, Wee any other admissions ; or, to contradict and impeach him when he is afterwards examined as a witness.” Vol. 1, sec. 552. Wharton also lays down the law in the same way ; and he makes no distinction between the admissibility of the sworn admissions of a party, whether examined in another cause or examined in the same cause. 2 Whart. on Evid., sec. 1120. Another text writer states the rule the same way. Weeks’ Law of Depositions, sections 464, 470, 473, 518, 568. And the cases which have
. Similar rulings have been made in analogous cases. Thus, where the defendant had testified in the cause before a justice of the peace, and also on appeal to the county court, and the testimony he had given before the justice was admitted over his objection and this was held correct, Johnson, J., remarking: “As to the defendant himself, it was principal evidence against him, upon the issue. It was in the nature of admissions or declarations by a party, which are always competent as principal evidence against the party making them. It was also competent as impeaching evidence against him, or his witness.” McAndrews v. Santee, 57 Barb. 193. A like ruling was made in Woods v. Geveeke, 28 Iowa, 561. So, too, in Hall v. Emily Banning, 33 Cal. 522,
Rut it is needless to go outside of our own reports in search of precedents adverse to the majority opinion. Thus in Pomeroy v. Benton, 77 Mo. 64, it was expressly ruled that a deposition of a party defendant, taken in the same cause, could be read in evidence on the trial of that cause, asan admission. And in State ex rel., etc., v. Nat. Bank, 80 Mo. 626, it was said by Martin, C. ? “ The deposition of Mrs. Goldsoll was competent evidence against her, being in the nature of admissions, or statements adverse to her pretended rights, * * * A party’s deposition, as a written statement of facts, is admissible, although he may be present to testify or has testified.” And’ even in a criminal cause, it was ruled by this court, Henry, J., delivering the opinion, that the testimony of a party defendant on a former trial might be used against him on the second trial of the same cause. State v. Eddings, 71 Mo. 545, On what ground were the statements of the defendant thus used % Plainly as his declarations or admissions of facts material to the issue being tried. If so, in what respect do such declarations or admissions differ from similar ones made by a party on the street or in the more solemn form of a deposition ? The majority opinion attempts to make a distinction between the deposition of a party taken in another suit, and one taken in the same suit; concedes its admissibility in the former case, but denies it in the latter.
It seems to be thought that to allow the deposition of a party to be read as an admission in the same cause wherein it was taken, would be to construct a sort of statutory “tra/p.” . It is quite evident from the quotations I have made from the cases in 21 and 27 Mo., supra, that Judges Scott and Richardson entertained no-such views. With this matter, however, the courts have no concern. Such things belong to another branch of the government. That depositions are taken by an abuse of the privileges allowed by statute, does not render them incompetent by way of proving the admis sions of a witness. Zimmer v. McLaran, 9 Mo. App. 591. And the rule is well established that evidence is-none the less admissible because of having been improperly obtained from a party to the suit. Stockfleth v. DeTastet, 4 Campb. 10; Collett v. Keith, 4 Esp. 212; Smith v. Beadnell, 1 Campb. 30; Robson v. Alexander, 1 M. & P. 448; Legatt v. Tollervey, 14 East, 302; 2 Whart. on Evid., secs. 1099, 1120. And it was within the power of the plaintiff to waive the disability of Mrs.
I have made this opinion of greater length than I had intended, but I regarded the ruling of the majority •as so fundamentally erroneous that I could not be content without endeavoring to combat, as best I might, the .grievous error which I believe that ruling sanctions.