Kuhn v. Schwartz

Smith, P. J. The plaintiff in his petition alleged “ that said indebtedness, together with the goods and effects of Goldsmith and Kuhn, were assigned for the benefit of their creditors to one Leopold Wallach ; that Wallach, as assignee, with Goldsmith and Kuhn, subsequently assigned said claim to Citroen & Co., a firm composed of plaintiff and Lewis B. Citroen ; that afterwards said Citroen died and his interest in said indebtedness was by his legal representatives assigned to plaintiff.” The defendant, by the general denial contained in his answer, put in issue these allegations of the petition. The plaintiff, to maintain the affirmative of the issue, offered to read in evidence the depositions of several witnesses and to the reading of which the defendant objected on the ground that the same were incompetent and irrelevant, being secondary evidence, which objections were by the court overruled, and to which ruling the defendant excepted. The testimony of the deponents was substantially as follows : Adolph Kuhn stated that he knew that the account sued on was transferred by Wallach to Citroen & Co., and by that firm transferred to plaintiff, and that he was present when the transfers were made and executed. Nathan Kaufman stated that Wallach, for a consideration of $10,189, 613 assigned to the late firm of Citroen & Co. certain accounts due to the late firm of Goldsmith & Kuhn, of which Wallach was the assignee, and that the account sued upon was one; that afterwards, in the adjustment-of the affairs of said firm of Citroen & Co. with the representatives of L. B. Citroen and the plaintiff, the account sued upon was assigned to him. Herman Goldsmith stated that the account sued on was assigned by Wallach to Citroen & Co., and subsequently came tobe the property of plaintiff. Leopold Wallach stated that, for a valuable consideration to him paid by Citroen & Co., the Schwartz account sued upon was assigned to Citroen & Co., of which firm the plaintiff was a member. This was substance of all the evidence in the case. The instruction given for the plaintiff, which need not be more particularly referred to, would ordinarily have been well enough. The - instruction asked by defendant and refused by the court was in effect a demurrer to the evidence. The verdict was for plaintiff, and after an unsuccessful motion to set the same aside judgment was entered thereon, and to reverse which defendant has prosecuted his appeal here.' The principal question presented by the record for our determination is whether the circuit court committed error in permitting the testimony of the witnesses in form of depositions to be read in evidence to the jury over the specific objections of the defendant. The allegations in the plaintiff’s petition, together with the testimony adduced in support thereof, conclusively showed that the several assignments of the account sued upon were all in writing. The plaintiff derives his title to said account through these several assignments, some of which were deeds under seal. Not only this, but it-further appears that Citroen, one of the assignees who had an interest in this account, died, and that his legal representatives assigned his interest therein to plaintiff. It is likely this assignment was made under the authority 614 of some court having probate jurisdiction, whose action in respect thereto remains a matter of record. Plaintiff was permitted to establish this state of facts by parol •evidence, without first beipg required to show that said written assignments and possible records were either lost, or destroyed, or out of his power to produce the same or an authentic copy thereof. The question under the pleadings was whether these assignments were sufficient to pass the title to said chose in action to plaintiff. How could the circuit court determine this without the assignments were produced for its inspection ? The general rule is, that the best and original evidence must be produced or its absence accounted for. These rules have been adopted and are enforced to promote certainty, and to avoid perjury and mistakes growing out of the frailty of human memory. This case, it seems to us, comes within the reason of this rule. We are of the opinion that the circuit court erred in permitting oral evidence of the execution and contents of said several written assignments to go to the jury without anything to show that they could not be produced. 2 Greenl. on Ev., sec. 481; Price v. Hunt, 59 Mo. 258 ; Washington County v. Railroad, 58 Mo. 372 ; Farrell v. Brennan, 32 Mo. 328 ; Carr v. Carr, 36 Mo. 408. If the objectionable testimony were excluded from the consideration of the jury, as should have been done, there was nothing left upon which they were authorized to find for the plaintiff. The testimony of Adolph Kuhn, to which there was no objection made, showed that he was present when the transfers were made' and saw them signed and executed. The testimony of this witness establishes the fact that the several assignments under which plaintiff claims title to said chose in action were in writing, but it does not prove the contents of such assignments. It does not prove that the said chose in action was embraced in said assignments. It fell far short of supporting the controverted allegations irf the plaintiff’s 615 petition. Instead of permitting the case to go to'the jury the court should have given the defendant’s instruction in the nature of a demurrer to the plaintiff’s evidence. It is very true that under the provisions of section 3462, Revised Statutes, which is a literal copy of section 111 of the Code of New York,.an assignment valid as an equitable assignment is equally valid at law, and that a book account, like any other chose in action, may be assigned by parol. Smith v. Sterrett, 24 Mo. 262; Boyer v. Hamilton, 21 Mo. App. 524. But this rule does not aid the plaintiff. His is not a case of that kind. He made an effort to prove his title to the account sued upon by parol. His endeavor was to establish the existence and contents of certain written assignments by this kind of evidence without in any way accounting for the non-production of the same. This he could not do under the law of evidence. The abstract of the record, at which we must alone look, sufficiently preserved the defendant’s exceptions to the several rulings of the circuit court of which he complains to impose upon us the duty of examining the questions of law they raise. .■> We think that the trial court, in admitting the testimony of plaintiff’s witnesses, disregarded a long and well-settled rule of evidence, and for that reason we must reverse the judgment and remand the case, which, Ellison, J., concurring, Hill, J., not sitting, is ordered accordingly.