161 Mo. App. 217 | Mo. Ct. App. | 1912
This was an action brought on June 24,1908, by Clara Tremain, in the Howell county circuit court against John C. Dyott, the surviving’ joint obligor in a bond executed to plaintiff on January 25, 1904, at Elmira, New York. The prayer in the plaintiff’s petition was for $1,825- with interest. Upon trial before the court sitting as a jury, plaintiff was awarded judgment for $1,200 and interest in the sum of $210, making a total of $1,410. Defendant has appealed.
The bond sued on in this action is as follows:
“Know all men by these presents, That we, Geo. W. Neily and John C. Dyott, both of Elmira, N. Y., are held and firmly bound unto Clara Tremain in the sum of $1,825, lawful money of the United States*219 to be paid to the said Clara Tremain, her executors, administrators or assigns. For which payment to be made we bind ourselves,, our heirs, executors and administrators firmly by these presents. Sealed with our seals and dated this 25th day of January, 1904.
“The condition of the above obligation is such that if the said Clara Tremain, her executors or administrators shall suffer damage in the sale of certain real property purchased by her of George W. Neily in Shannon county, Missouri, then the above bounden parties will refund and pay. to the said Clara Tremain the amount so damaged provided however, that the said Clara Tremain shall leave the said property in the care and control of said George W. Neily, or his agents, who shall have the exclusive right in selling and disposing of the same, the amount to be received however less the expense and cost of the sale to be turned over to the said Clara Tremain, her executors or administrators, then the obligation herein to be void, otherwise to remain in full force and effect.
“Geo. W. Neily,
* “John C. Dyott.”
(Then follows a notary’s acknowledgment.)
The plaintiff copied in her petition an agreement purporting to have been entered into between herself and George W. Neily on January 25, 1904. This written agreement, which was read in evidence without objection, recites that it was entered into on said date in the state of New York, between George W. Neily of Elmira, New York, and Clara Tremain of West-field, Pennsylvania, providing that where as Neily had purchased an undivided one-half interest in certain lands in Shannon county, Missouri, comprising some 4,130 acres, and whereas Clara Tremain desired to purchase an undivided one-third interest in said undivided one-half interest, for the sum of $1825, it was agreed that upon payment of said amount Neily would
The appellant’s assignments of errors are as follows: “(1) The court erred in admitting incompetent, and irrelevant evidence on behalf of plaintiff over the objection of the defendant. (2) The court erred in refusing to sustain defendant’s demurrer to plaintiff’s evidence. (3) The court erred in refusing to find for the defendant at the close of all the evidence. ’ ’
The defendant’s demurrer to plaintiff’s evidence having been overruled and the defendant having put in his evidence, he thereby waived such demurrer. [Lohnes v. Baker, 156 Mo. App. 397, 137 S. W. 282.]
At the time the plaintiff’s deposition was offered in evidence, the record shows the following proceedings: “Defendant objects to the reading of the deposition of Clara Tremain for the reason that the coobligor, George W. Neily, is dead, and that all transactions and the whole business concerning which this bond is related was conducted with the said George W. Neily, who is now dead, and that this agreement was made with George W. Neily, now dead, in the absence of defendant, Dyott, and therefore, Clara Tremain is not a competent witness for any purpose.” Upon this objection being made, the following appears of record: “Which objection was by the court sustained, except to answers denying statements attributed to her since the death of her husband, to which ruling the plaintiff excepted at the time.” It will therefore be seen that the trial court held that part of the deposition was competent, namely, that part in which plaintiff denied statements attributed to her since the death of her husband. The objections of the defendant were made to the deposition in toto. “If there be any proper testimony in a deposition a
Under the condition in which we find the record, no error was committed by the trial court that was properly saved for our consideration and which we can review. The plaintiff’s deposition supplies all the missing links in plaintiff’s chain of evidence and fairly meets all the objections raised by defendant’s demurrer. It shows that she paid $1,825 to Neily under her contract of purchase. It shows that she never knew that the land had been sold and never received any portion of the purchase money for its sale. It also shows that she never made any agreement with Neily by which she loaned him any money derived from the sale of this land. There being substantial evidence tending to support the judgment, in an action for damages an appellate court is powerless to interfere and set it aside on that account. The judgment is affirmed.