41 Mo. App. 489 | Mo. Ct. App. | 1890
This case is here upon appeal the second time. It was reversed and remanded at the former hearing a year ago (34 Mo. App. 404), has been tried again in the circuit court, resulting in a judgment for defendant Morris, but against defendant McFarland for the enforcement of a lien against, his land in the sum of $781.83, from which he has appealed to this court. For an understanding as to nature of the controversy we refer to Rice v. McFarland et al., 34 Mo. App. 404.
I. At the trial below the defendants offered defendant Morris as a witness by whom they wished to prove that Steam’s administrator, in the year 1883, notified him (Morris) that he, said administrator, then had in his possession the note sued on in this case, and that he had found it among the papers and effects of said Steams after his death, and that said administrator then asked him (Morris) to pay the note. To the introduction of which evidence plaintiff objected, on the ground that witness Morris was a party to the suit, etc., and said Stearns being dead said witness was disqualified from testifying in the cause. The court sustained the objection and the evidence was excluded. In this ruling. the trial court was clearly correct. While our
II. The court of its own motion, in addition to a direction to the jury to find, for defendant Morris (which is not here complained of) gave the following in the nature of a demurrer to the evidence of defendant McFarland, to-wit: “The court further instructs the jury that their verdict must be in favor of the plaintiff for an amount equal to the joint amount of the two notes given by Stearns to Rice, principal and interest, if the same does not exceed the amount of the note sued on, and, should it exceed said amount, then only for the amount of the note, principal and interest, from Morris to Stearns and Doan; and that the said amount so found to be due is a lien on the land mentioned in the petition.”
We regard the giving this instruction a serious error, and justly meriting the complaint of defendant McFarland. The vice of this direction to find for the plaintiff, as against McFarland, is that the court assumes
We do not then feel warranted in condemning the foregoing instruction (directing the jury to return a verdict for plaintiff) simply because the fact assumed was controverted by the answer. But said instruction meets with our disapproval, in that it assumes to decide for the jury the existence of a substantial fact in plaintiff’s favor, when the same is controverted by evidence for the defense. Circumstances, those ‘ ‘ physical facts ’ ’ which accompany a transaction, constitute evidence by which the jury are to determine issues between litigants, and such circumstances deserve a like consideration as the sworn statements of witnesses. It may be, and often happens, too, that such circumstances — mute, but credible witnesses — satisfactorily, and even conclusively, disprove the testimony of the living witness. So, then, if there are any circumstances, or “physical facts,” which tend to dispute the sworn statement of a witness, they stand as controverting testimony, and should be weighed by the triers of the fact. About this sworn evidence of witness Williams, there stands much to contradict it. He swears, in effect, that, before Morris paid off the note to Stearns, the payee, said Stearns had transferred the same to plaintiff Rice. He says that this assignment by Stearns to Rice occurred in September, 1877 (as “he recollects”). Now, to oppose this, defendant relies, and has the right to rely, on the significant circumstance that there appears no
However, as already explained, this does not belong to that character of case. With the substantial evidence. here in favor of defendant McFarland, no court would be justified in setting aside a verdict in his favor. Hence, in our opinion, the trial court erred in arbitrarily instructing against McFarland, thereby, in effect, declaring to the jury that they should believe the testimony of witness Williams to be true, although contradicted, as it was, by the patent circumstances surrounding the transaction. Bryan v. Ware, 4 Mo. 110; Vaulk v. Campbell, 8 Mo. 227; Gregory v. Chambers, 78 Mo. 298; Kenny v. Railroad, 80 Mo. 578; Carson v. Porter, 22 Mo. App. 184.
It follows, however, from the views hereinbefore expressed, that the judgment herein must be reversed and the cause remanded for a new trial.