Owen v. Crum

Ellison, J. This action was instituted during the lifetime of David Branson in the circuit court of Maries county, upon seven promissory notes alleged to have been executed by defendant, payable to said Branson, two of which are alleged to have been lost. Pending the suit Branson died, and plaintiffs, his administrators, were duly substituted for him. The petition was in the usual form. The answer denied the execution of the notes alleged to be lost or destroyed, and denied that such notes ever existed, but admitted the execution of the others. The defendant then set up separately payment of the fire notes admitted, and that in the aggregate he had overpaid plaintiffs the sum of six hundred and sixty dollars, and asks judgment for the amount. Defendant, then, for further answer and cause of action against plaintiffs’ intestate, sets up a settlement of partnership with him, wherein he was owing as the result of the settlement, five hundred and eighty dollars. Defendant, for the purpose of proving payments set up in his answer, offered Mrs. Haynes, a married woman. The plaintiffs objected on “the ground that the facts t©which she was called to testify was a conversation, and an act, accompanied by a conversation explaining the-act, with her then husband.” The court overruled the objection and the witness gave evidence tending to show money paid by defendant for the intestate. The defendant enters in this court a remittitur for one hundred and forty-five dollars, as the amount the judgment was increased by the evidence of this witness. We, therefore, need not consider the propriety of the action of the trial court in admitting the testimony. All of the instructions asked by the plaintiffs and defendant were given, though plaintiffs excepted to those given for defendant. The points now insisted on for reversal are, that as the petition specifically averred the execution and loss-of the notes sued on in the four and five counts, and the answer denied the execution of the notes, denied that [124] they had ever existed, blit did not deny they had been lost; the court should not have given the instruction for defendant requiring proof by plaintiffs of the execution and loss of the notes; that standing, as plaintiffs contend, admitted by the answer. If we admit the answer was not sufficient as a denial of the loss to justify the instruction, no harm was done plaintiffs by it, as there was no sufficient proof of the notes by plaintiffs, which are alleged to be lost. There was no evidence tending to show the date of the notes, or when they were due, or if due at all, nor was there any sufficient evidence as to what interest they drew, or whether from date or maturity, conppound or simple. The evidence as preserved in the record was not sufficient to authorize a recovery on them. The next complaint is, that the answer failed to aver that the overpayments on the notes was by mistake or through the fraud of the intestate. Such objection is too late after verdict. Kercheval v. King, 44 Mo. 404; State ex rel. v. County Court of Sullivan county, 51 Mo. 522; Wellshear v. Kelly, 68 Mo. 343, 351. The only conclusion from the evidence is that the overpayments were by mistake, and this question was submitted to the jury by instructions. We perceive no error sufficient to justify a reversal, and we will, therefore, affirm the judgment, less the remittitur of one hundred and forty-five dollars, and hereby adjudge the •costs of this appeal against the defendant. All concur.