Holman v. Bacchus

Hall, J. The turning point in this case, and the only one which we deem it necessary for us to pass upon, is presented by the action of the trial court in permitting the defendant to introduce testimony concerning the contents of the receipt, purporting to be signed by Lazarus Holman, in the absence of evidence tending to show the genuineness of the signature to the receipt. Was such action by the court correct % It was not competent for the defendant to introduce evidence as to the contents of a receipt, given by Lazarus Holman, and afterwards lost, without proof that such receipt was, in fact, given by said Holman. The existence of the receipt, and the execution of it by Holman were facts necessary to be established in order to make competent, testimony touching the contents of the receipt. Perry’s Adm’r v. Roberts, 17 Mo. 36. This is admitted by the defendant. But his contention is that the testimony of Harris and of Mrs. Jones tended to show that such receipt was executed by said Holman. But to the correctness of this contention we cannot agree. It may be conceded that Holman saw Hawkins for the last time on the occasion testified to by Harris and Mrs. Jones; that Holman went to Hawkins’ house for the purpose of collecting the balance due on the note, which balance, Holman understood, Hawkins was ready to pay; and that Holman did not have the note with him, and this is certainly all that the testimony of Harris and Mrs. Jones tended to prove, and yet we cannot see how such facts alone tended to prove even payment, much less the genuineness of the signature to the receipt. There was only one way, under the facts of this case, in which to prove the genuineness of the signature [637] to the receipt, and that was by competent .proof that the handwriting of the signature was that of Lazarus Holman. Had the receipt not been lost, and had it been offered in evidence, it would have been necessary for the defendant to have shown that the signature to the receipt was in the handwriting of Lazarus Holman. The loss of the receipt made no change in this respect; it was still necessary for the defendant to make such proof. Judgment reversed and cause remanded. All concur.