Ring v. Jamison
66 Mo. 424
Mo.
1877
Check Treatment
Henry, J.

— This cause originated in the probate court *426of St. Louis county, on a demand presented for allowance by plaintiff, against the estate of Peter Lindell, deceased, for the sum of $7,727.75. The account was composed of forty-eight items, all of which were for money lent hy plaintiff to or advanced for Peter Lindell, except an item of $350 for diamond studs alleged to have been sold by plaintiff to said Lindell. The money was paid and advanced by plaintiff at different times, from February 10th, 1868, to August 3rd, 1871. The account had no credits. In the probate court there was a judgment for defendant. Plaintiff appealed to the circuit court where he obtained a judgment for $7,707 and ^¡-. Defendant appealed to the general term, where the judgment was affirmed, from which he appealed to the Court of Appeals, where the judgment of the' circuit court was affirmed, and he has brought it here by appeal. There was evidence which tended to prove that the account was correct. Thcwe was also evidence tending to show that it was not. The deceased, Peter Lindell, attained his majority 10th October, 1870, and all of the indebtedness, except $1,350 accrued, if at all, while he was a minor. He was a young man of wealth, who was unfortunately .addicted to gaming, and some of his associations were evidently not of the most reputable character. Mr. Jamison, who administered on his estate, was also the curator of his property while a minor, and the evidence shows that young Lindell was frequently in possession of large sums of money, as much as $5,000 and $8,000 at a time ; that he was prompt to pay his gaming debts, sometimes incurred at cards, and occasionally on bets on horse racing. One witness, a saloon keeper, testified that on the 22nd or 23rd of April, 1872, Peter Lindell stopped in front of his saloon in his buggy, and sent a colored man he had with him into the saloon for a glass of beer; that about that time, the plaintiff came into the saloon, and called Lindell in to take a glass of wine with him, and that plaintiff said to Lindell, “ Pete, I am pretty near broke, I want to get some money.” Lindell replied, *427I can’t give you money now; you will have to wait a while; you will have to wait six months.” And after some other conversation, in which Lindell admitted his indebtedness to plaintiff, the latter took from his pocket a book, in reply to a question by Lindell, “how much do I owe you, anyhow ?”' added up the items in the book, showed it to Lindell, and asked him if it was right? And he said it was. Plaintiff wrote the amount on a card and handed it to Lindell. Witness said the amount was $7,727 and that Lindell agreed to pay it, with six per cent, interest, in six months. This was about eighteen months after Peter Lindell became of age.

The court, at the instance of plaintiff, gave an instruction in substance, that if, after he became of age, Lindel! admitted his indebtedness to Ring in the aggregate amount of the several items of plaintiff’s account, and agreed to pay it, then the jury should find for plaintiff', whatever they might find still due to plaintiff, with six per cent, interest. The folloAving asked by defendant the court gave: That if Ring owed Lindell at the death of the latter, the jury should find for defendant; but refused the following: 1. The acknowledgement of indebtedness by Peter Lindell after he became'of age, believing himself liable to pay the same', is not a ratification of the account sued upon, and if the account sued upon accrued while he was a minor, the verdict should be for defendant. 2. If any of the items of the account accrued more than five years before the commencement of the suit, plaintiff is not Entitled to recover for such items. 3. If the curator of Peter Lindell supplied him with all necessaries while he was a minor, and the account sued upon accrued while be was a minor, then plaintiff cannot recover. 4. If his curator supplied him with all necessaries while he was a minor, and plaintiff loaned Peter Lindell money, or sold him diamonds, or other property while he was a minor, then plaintiff cannot recover.

*428 l. ratification of tract.1 s 00N"

*427If the instruction given by the court for plaintiff is *428the law applicable to the facts which the plaintiff’s testimony tended to prove, the court did not err in refusing the first, third and fourth instructions asked by defendant. The first declared a contrary doctrine to that of the plaintiff’s instruction, and the third and fourth declared in substance that plaintiff' could not recover, although the jury should find that after Lin-dell became of age he acknowledged his indebtedness, and promised to pay it in six months with interest. We have no doubt that plaintiff’s instruction correctly declares the law, and the opinion of the Court of Appeals ik- a very satisfactory elucidation of the law on that subject, and relieves us of the necessity of discussing the question. The court having properly given plaintiff’s instruction, did not err in refusing the first, third and fourth asked by defendant.

2. limitation AGAINST RUNNING account.

The second instruction asked by defendant presents á question of more difficulty, because the weight of authority is against the decisions of this court on ° . . . that question. Rut our decisions have been acquiesced in for years, and no good results would be accomplished by reopening the question. They are to the effect that when the account sued on is a running account, and it is fairly inferable from the conduct of the parties while the account was accruing, that the whole was to be regarded as one, as in case of a merchant’s account against a customer, none of the items are barred by the statute unless all are. The Missouri cases are cited in the opinion of the Court of Appeals, and fully sustain that court in its conclusion. Vito Viti v. Dixon, 12 Mo. 480; Steamboat v. Beehler, 12 Mo. 477; Madison Co. Goal Co. v. Steamboat Colona, 36 Mo. 446: Boylan v. Steamboat Victory, 40 Mo. 250; Finney v. Brant, 19 Mo. 45. Other errors are assigned, but as they were considered,’ and in our opinion properly determined by the Court of Appeals, except one, we will pass them by without any remark, except that we concur in its opinion in regard to them.

*429 3. incompetency ?abtySasTaVIwN£SS

On the trial of this cause, the circuit court permitted plaintiff to testify in his own behalf. This under former decisions of this court, was error. In Angell v. Hester, 64 Mo. 142, this court said: “We take the true distinction to be, that where one of the original parties to the contract or cause of .action inslssue and on trial is dead, the other party to such contract or cause of action, will not be permitted to testify to any fact which he would not have been permitted to testify to at common law; that when one of the parties is dead, the other party stands, in regard to testifying, precisely as if the statute allowing persons to testify (parties was intended) had not been enacted.” The statute is in derogation of common law. If both parties to the contract or cause of action, are alive, they can testify as other witnesses, without any restrictions, except such as apply to other witnesses, but not so if one he dead. The substance of the provision is, that if both parties are alive, both may testify, but if one he dead, then the common law is in full force as to the competency of the survivor as a witness in his own favor. “ The test of competency” (said Wells, J., in Granger v. Bassett, 98 Mass. 462,) “ is the contract or cause of action in issue and on trial, not the fact to which the party is called to testify.” The test given by the learned judge in Granger v. Bassett, we think a correct one, with the exception of those cases at common law in which a party could testify to certain facts and not generally, and if I do not understand the learned judge to hold that in' Massachusetts, a party is not still competent to testify in those cases, whether the other party be dead or alive. Coughlin v. Haenssler, 50 Mo. 126 ; Looker v. Davis, 47 Mo. 145; Amonett v. Montague et al., 63 Mo. 201; Sitton v. Shipp, 65 Mo. 297.

All concurring,

the judgment is reversed, and the cause remanded.

Reversed.