Dawdy v. Dawdy's Estate

BROADDUS, P. J. — The plaintiff, as the widow of B. M. Dawdy, deceased, brought her action in the probate court against the administrator of the estate. The statement is in three counts, the first on an alleged lost note executed by the deceased and made payable to the plaintiff under the name of Mary Yirden, for the sum of $750, bearing interest at the rate of eight per cent per annum, due in one year from date. The second count is on account, for the sum of $750, and is for services rendered the deceased and his family from 1871 to the 25th day of October, 1895. These services are alleged as the consideration for the said note. The third count is for money had and received. The claim is also for $750, and is for the same debt mentioned in the two former counts. B. M. Dawdy died in April, 1903, and plaintiff’s, claim was filed in the probate court on the 18th of January, 1905, and was exhibited to the administrator on February 4, 1905. The plaintiff married deceased, on the 28th day of October, 1895, at which time her name was Mary Yirden. The case was tried in the probate court, where plaintiff obtained judgment on the first count in her statement and the heirs of the deceased appeared to the circuit court, where, on trial anew, the jury under [340] a peremptory instruction returned a verdict for the administrator, and plaintiff appealed. The administrator filed no answer, but his counsel made a statement of his defense to the action. There was testimony to the effect that the plaintiff prior to her marriage to the deceased worked for him and his family as a servant for twenty-five or thirty years, for which services she was to receive pay at the rate of one dollar per week and that he execut ed to her a note for $750, but there is no evidence that it was lost or destroyed. The plaintiff offered in person to testify that the note was destroyed and that it was not and had not been in her possession since the date of the appointment of the administrator. On objection this offer was refused by the court. The plaintiff insists that under the circumstances the evidence offered of the plaintiff was competent under authority of Shanklin v. McCracken, 140 Mo. 348. In that case the wife was permitted to testify to the fact that she saw certain deeds delivered to her husband. The court held the evidence competent as she derived her knowledge wholly by the exercise of her sense of sight alone, and that the ruling was not in conflict with section 8922, Revised Statutes 1899. The evidence offered was- clearly inadmissible under our statute, section 465, Revised Statutes 1899, among other things, containing’ the following: “Provided, that in actions where one of the original parties to the contract or cause of action in issue and on trial is dead, or is shown to the court to be insane, the other party to such contract or cause of action shall not be admitted to testify in his own favor or in favor of any party to the action claiming under him” et cetera. This section, excludes a party to a suit from testifying in such cases and the fact that plaintiff was the wife gives her no greater right to testify than any other person in reference to a contract made with her deceased husband. But plaintiff contends that she was entitled to a verdict on the second count, as the proof was ample that she rendered the services to deceased alleged in said count. [341] As the plaintiff proved, that the deceased escuted to her a note for such services, although it was not an extinguishment of the debt, she was not entitled to recover without producing the note. [Steamboat v. Lumm, 9 Mo. 64; McMurray v. Taylor, 30 Mo. 263; Schepflin v. Dessar, 20 Mo. App. 569.] The plaintiff failing to account for the note, she was not entitled to recover on any of her counts. Affirmed. All concur.