Wood v. Duffy

127 Mo. App. 543 | Mo. Ct. App. | 1907

GOODE, J.

This action was instituted before a justice of the peace to recover $150, the alleged price of a gold ring with a diamond and sapphire setting. William J. Berkley was the owner of the ring. He traded it to defendant Duffy for a lot. Berkley delivered the ring to Duffy, but the latter subsequently found he could not make a good title to the lot and offered to return the ring. The testimony for plaintiff tends to show that instead of taking the ring back, Berkley agreed Duffy might pay $125 for it. Subsequently Berkley assigned his interest in the supposed debt to plaintiff Wood, and the latter sued for it. After the demand had been put in the hands of Alex J. B. Garesche, an attorney, the latter wrote Duffy a letter; Avhereupon Duffy called on Garesche and a conversation ensued betAveen the tAVO about the transaction. Garesche testified as a witness for.plaintiff and related the conversation. He said he told Duffy that both he and Berkley were his (Garesche’s) friends and he (Garesche) would like to have the matter settled; that thereupon Duffy told Garesche all about the original trade for the ring; namely that Duffy Avas to give Berkley a lot for it, and also told the final arrangement made when the title to the lot was knoAvn to have failed; that Duffy then agreed to pay Berkley $125 in cash as soon as a certain pending deal was consummated. The action resulted in a verdict and judgment for plaintiff for $125, and defendant appealed. The error assigned is the admission of the testimony of Garesche, the attorney, which counsel for defendant asserts Avas incompetent, because whatever Duffy said to the attorney was after the latter had notified him. the account Avas in the attorney’s hands for collection, and Duffy’s statement was in the nature of an offer of compromise, proffered to avoid litigation. It should be stated that Duffy testified he simply offered to turn back the ring when he found he could not make a good title to the lot; that Berkley said he had bought another ring and did not need the one traded. Duffy denies he ever promised to pay cash, $125, or any other sum. What he said in regard to the conversation with Garesche was that he went to the latter’s office and told him that he (Duffy) was very much surprised at Berkley’s putting the claim in the hands of an attorney, and further, that he offered Garesche $100, rather than have any trouble. The tendency of Duffy’s testimony is to prove the offer made to Garesche was by way of compromise, and the point against the competency of the evidence would be well taken if what Duffy swore to was all the evidence on the point. [Graham v. Auerswald, 59 Mo. App. 77.] But Garesche’s testimony put the conversation in a different light and tends to establish that instead of what Duffy said amounting to a compromise, it was a voluntary narrative of what had transpired between him and Berkley, including an agreement between the two to substitute for the lot a, cash payment of $125 as the price of the ring. If the court believed Garesche’s version of the conversation, the latter’s testimony was perfectly competent as tending to prove an admission by Duffy against interest and not an offer of compromise. No declarations of law were asked, and hence the matter is not presented in a way in which the court can be.held to have erred in admitting Garesche’s testimony.

The judgment is affirmed.

All concur.