122 Mo. App. 421 | Mo. Ct. App. | 1907
Plaintiff is the son of Adeline Stuyyaert, deceased, and defendant, William J. Arnold, is her execntor. She died July 8, 1903. The petition alleges that plaintiff resided with his mother in her home from his birth in 1869 to 1899, a period of thirty years. About January 1, 1891, it was agreed between plaintiff and his mother that he should pay over to her his weekly earnings to be by her preserved and saved for him, after deducting whatever was required for the living and household expenses of the two; that the remainder should be the property of plaintiff and restored to him on his demand; that pursuant to this arrangement plaintiff, at different dates, turned over to his mother sums amounting to $5,376.14, out of which amount on April 23, 1900, she deposited in the Boatmens Bank in St. Louis, $2,200, in her own name; that after her death her execntor collected said sum from the bank, claimed the same as the property of the estate of the deceased and refused to turn it over to plaintiff on his demand; that by reason of the premises said Arnold, as executor of the last will of the deceased, is indebted to plaintiff in the sum of $2,200, for which judgment is prayed.
Defendant answered by a general denial and by pleading the pendency of another action between the same parties involving the same subject-matter. The answer pleaded in bar was not allowed by the circuit court and as there is no proof regarding it in the record, the ruling cannot be reviewed. The testimony tended to establish the cause stated in the petition and, in our opinion, did establish it conclusively. It showed an arrangement between plaintiff and his mother, by which
1. The chief error assigned is permitting plaintiff himself to testify to the arrangement between him and his mother. As the other party to the agreement was dead, plaintiff, was, of course, an incompetent witness to prove its terms and there is no contention to the contrary. ' But the defendant waived the objection to his competency, not only by failing to interpose when he was put on the stand as a witness, but by eliciting from him the facts regarding the agreement. These facts were drawn out by the defendant’s counsel in the cross-examination of plaintiff, and not by plaintiff’s counsel in the examination in chief. Plaintiff was introduced for the purpose of proving certain entries in a memorandum book he kept, showing the amounts turned over to his mother and the dates when they were paid to her. When he was called as a witness, defendant’s counsel made no objection; but at the beginning of his testimony the court asked if he was the plaintiff, and
2. Likely the entries in the memorandum book, as they were shown to have been made simultaneously with the transactions to which they referred, were competent evidence (Anchor Milling Co. v. Walsh, 108 Mo. 277, 18 S. W. 904; Seligman v. Rodgers, 113 Mo. 642, 21 S. W. 94; Robinson v. Smith, 111 Mo. 205, 20 S. W. 29; Taylor v. Tucker, 1 Ga. 231), but the money deposited in the bank and which is the subject-matter of the action was proved conclusively to belong to plaintiff by uncontradicted evidence other than the book entries,
3. The last will of the deceased was offered in evidence and ruled out. Error is assigned because of this ruling. The will is not contained in the record and we are unable to say whether or not it had any bearing on the issues. It is hard to conceive of any theory on which it would.
4. Counsel for defendant contends there was no evidence that the money deposited in the bank by plaintiff was part of what he had previously given to his mother pursuant to the arrangement aforesaid; hence, it is argued that plaintiff did not make out a case, as the petition declares on the agreement between himself and his mother and seeks to recover money which he had turned over to her pursuant to the agreement. This contention is wrong, both in law and in fact. The action