189 Mo. App. 184 | Mo. Ct. App. | 1915
Lead Opinion
Plaintiff, on August 11, 1913, filed- in the probate court of Green county his claim under a judgment in favor of S. W. McLaughlin and against A. B. Crawford in the circuit court of Christian county dated September 21, 1893, assigned to him August 16, 1898. The claim was allowed in the probate court, the administratrix appealed to the circuit court where upon a jury trial a verdict was returned and judgment entered in favor of plaintiff and the defendant has appealed to this court.
The judgment in Christian county was against A. B. Crawford, John D. Porter and Marion Davis. After the judgment was entered, an appeal was taken to the Supreme Court and an appeal bond executed which was signed by T. A. Miller and others. The judgment was affirmed by the Supreme Court and thereafter suit was brought and judgment obtained in the circuit court of Greene county against said Miller on said bond February 10,1897. On August 16,1898, that judgment was assigned to the plaintiff and in that assignment it is stated that the plaintiff in that judgment did “also assign, transfer and set over the judgment referred to and described in the appeal bond on which this judgment is based, to the said W. D. Tatlow, for value received. ’ ’
Upon the margin of the Greene county judgment, based upon the appeal bond, the following is written and signed by plaintiff: “For value received, I hereby enter full satisfaction of this judgment this, the 12th day of September, 1900.” The uncontradicted testi
June 6,1913, A. B. Crawford died and the defendant, his widow, was thereafter appointed and qualified as his administratrix. The appraisement of the decedent’s estate showed a total of $545.59, consisting solely of personal property which included a bank balance of $285.59. The defendant in her application for letters of administration stated that the probable value of his estate was $400' personal property and no real estate. The annual and final settlements were made on a showing throughout of no other assets.
There was considerable testimony offered by the defendant as to the solvency of Crawford for several years before his death and the plaintiff’s inactivity in his efforts to collect the judgment for the purpose of showing that the judgment had been paid.
At the close of the testimony the court at the request of the plaintiff instructed the jury (la.) that the Christian county judgment was not barred by the Statute of Limitations and that no presumption of the payment arises from such lapse of time but that before it could be found that it was paid it was incumbent upon the defendant to prove that fact and that unless the jury found and believed from the evidence that it had been paid the finding should be for the plaintiff after allowing the conceded credit of $1200; (Ha) that the assignment of the judgment against Crawford was sufficient and did transfer the judgment to the plaintiff and (YI) that the jury should determine this case solely and alone on the evidence presented, disregarding entirely any matter of sentiment, or any preconceived notion as to it being unjust to enforce this claim at that time on account of its age or death of deceased, as the law permits a suit on a judgment rendered before 1895, at any time within twenty years from the
The defendant requested and was refused the following instruction (3):
“You are instructed that the payment in full of the judgment in case of S. "W. McLaughlin v. T. A. Miller, if it was made, was full satisfaction of the judgment sued on herein in favor of S. W. McLaughlin against A. B. Crawford, and if you believe the plaintiff herein entered full satisfaction upon the margin of the record of said first-mentioned judgment, such entry is equivalent to a receipt therefor, and is presumptive evidence of full payment, and before the plaintiff can recover in this action, he must prove to your reasonable satisfaction by a preponderance or greater weight of evidence, that the same was not paid in full, and unless he has so shown, your verdict will be for the defendant.”
The court gave the following instruction (12):
“You are instructed that unless you believe from all the facts and circumstances in evidence that the plaintiff has actually been paid the full amount of the judgment sued on, you should find for the plaintiff for whatever you find and believe from the evidence is due and yet unpaid.”
At the request of the defendant the jury was instructed (7) that it might be found from slight circumstances that the Christian county judgment has been paid; that (8) a presumption of payment may arise from a great lapse of time taken with other circumstances and that the presumption strengthens with the age of the judgment up to the statutory limit.
The usual peremptory instructions were requested by defendant at the close of plaintiff’s testimony and again at the close of all the testimony.
The defendant now here contends that the peremptory instructions should have been given because (a)
(a) The appeal bond offered in evidence as the one upon which the Greene county judgment is based did not have the name of A. B. Crawford signed thereto. The record now before us shows the name of C. W. Crawford signed to it, but the body of the bond, in referring to the Christian county judgment, does properly describe it and states that A. B. Crawford is one of the defendants, so that it is clear that the above-quoted portion of the assignment is not in the least confusing when it says that the judgment-which is described in the bond is assigned. The assignment says nothing about how the bond to which reference is made
(b) This contention must he ruled against defendant because the plaintiff concedes that this judgment was satisfied, consequently the statute, section 1912, Revised Statutes 1909 (which Has no effect on the Christian county judgment, Winkleman v. Des Moines and Mississippi Levee District, 171 Mo. App. 49, 58, 153 S. W. 539, and cases there cited), could have no application as no presumption of payment is involved. The release of Miller upon the payment of the $1200 was not a release of the Christian county judgment. [Section 2777, R. S. 1909.]
(c) That the court might have under different facts and circumstances committed error in giving instruction (3), yet it is evident that no harm was done in this case. That instruction goes to the question as to whether or not the testimony tended to prove full payment of the Greene county judgment. There is no •objection made to the refusal of the instruction on any point except that of the satisfaction being presumption of payment in full. As before stated all of the testimony is to the effect that only $1200 was paid by Miller. The court’s instruction (12) required a finding that the plaintiff had actually been paid the full amount of the judgment sued on. The testimony is so clear and convincing upon the question as to what amount was actually received from Miller that we are of the opinion that even if error was committed in refusing defendant’s instruction 3 that it was harmless and should not necessitate another trial of this case.
The alleged payment of the Christian county judgment, as well as that of the Greene county judgment which the defendants insist resulted in the satisfaction of the Christian county judgment, is an affirmative defense and the burden of proving it rested on the- de
(d) There is no merit in this contention, because after the amount which was paid by Miller on the Greene county judgment has been settled, as we have seen that it is by the undisputed testimony, and by the latter part of plaintiff’s instruction (I) telling the jury to allow that as a conceded credit, there could be no confusion created in the minds of the jury by referring only to the Christian county judgment.
(e) Instruction 6 given in behalf of plaintiff is not erroneous on account of the objections urged against it by defendant. It is in substance no more than an. admonition to the jury not to be influenced by the facts that the judgment is an old one or that the defendant therein named, against whose estate it is sought to be enforced, is dead. The criticism of the instruction under the facts in this case are too refined to be entertained.
We are not forceably impressed by the inconsistent attitude assumed by the defendant in this ease. She goes upon the witness stand and testifies at length as to the wealth of her husband prior to his death, disclosing his bank account and thus undertaking to show that the presumption should be indulged that the Christian county judgment had been paid, but the jury disbelieved that it had been paid, and while the experiences -which the county had in undertaking to assess her husband’s property showed that, he may have possessed considerable more than plaintiff or any other
The judgment is for the right party. It is affirmed.
Dissenting Opinion
DISSENTING OPINION.
I dissent from paragraph “C” of the opinion and hold that instruction numbered three, asked by defendant, declaring the effect of the release in full of the judgment against Miller on the judgment, sued on here and placing on plaintiff the burden of proving that such judgment has not been paid in full, should have been given. I do not concur in holding that defendant so effectively discharged this burden as to take that question from the jury. The entry of full satisfaction was not contemporaneous with the payment of the $1200 testified to by Miller, but was of a later date. Miller’s evidence is not conclusive either in itself or that other payments were not made, as our courts have so frequently held since Gannon v. Laclede Gas Light Co., 145 Mo. 502, 46 S. W. 968, 47 S. W. 907. Nor is this refused instruction an instruction placing the burden of proof of the issues in the case on plaintiff. That is done by another instruction, numbered ten, given for defendant. The burden of proof as to plaintiff’s ease remained with him throughout the trial. The burden of evidence as to payment was with defendant and was so declared by plaintiff’s instruction numbered I (a) But when a satisfaction in full was shown to have been entered in writing, it was proper to tell the jury, as refused instruction numbered three does, that such entry makes
Paragraph “E” of tbe opinion seems to me still more erroneous. Tbis claim was not filed in tbe probate court until tbe judgment on which it is based lacked but a month of being twenty years old and completely barred. Tbe other party to tbe controversy and most of tbe witnesses were then dead. There was some evidence at least showing that, while tbe judgment defendant, Crawford, was insolvent for some years after tbe judgment was rendered, be did much business in bis own name and bad considerable money and property during tbe last years of bis life and no attempt was made to revive tbe judgment or to collect it. Tbe main opinion correctly interprets tbe instruction given for plaintiff, that tbe jury should not “be influenced by tbe facts that tbe judgment is an old one or that tbe defendant therein named, against whose estate it is sought to be enforced, is dead.” These are, however, potent facts in tbe case and should be given due consideration by tbe jury. It is proper that tbe jury should be influenced thereby. Tbe jury should not “disregard” tbe unjustness, if such it found, of enforcing tbe claim at a time when it is very old and tbe other party dead. [17 Ency. of Law (2 Ed.), 868; Baker v. Stonebraker’s Adm’rs, 36 Mo. 338; McFaul v. Haley, 166 Mo. 56, 69, 65 S. W. 995.] Tbis issue should have been left to tbe jury without tbis improper comment and limitation of tbe evidence.
