Howard v. Hardy

ELLISON, J. Plaintiffs are the grandchildren of James T. Atkinson, deceased, and the defendant is the administrator of his estate. This action is to compel the defendant tó turn over to plaintiffs a promissory note for $500 and deed of trust, both in his possession, claimed by them to be their property. The judgment in the trial court was for the defendant. It appears that William Atkinson, who was the son of James, the deceased, executed the note in controversy to James and also a deed of trust on his homestead to secure the same, and that his wife, Sarah, the mother of these plaintiffs, joined him in executing such deed. Afterwards William died leaving Sarah, his widow, and these plaintiffs, his children. There was evidence tending to show that after the death of William, James proposed to and agreed with Sarah that if she would convey to these plaintiffs her interest in the real estate, he would transfer to them the note he so held against William, their father. The evidence further tended to show that Sarah carried out her part of the agreement by making a deed to the property to plaintiffs and delivering it to them; that when James was informed of this he said he would immediately perform his part of the agreement by transferring the note and deed of trust to plaintiffs ; and that he w'ent to an attorney for that purpose. He left the note and deed of trust with the attorney with-. out making the assignment. Afterwards the attorney gave the note to one Halford, a son-in-law of James, the deceased, but retained the deed of trust until after the death of James, when he gave it to the probate judge. The foregoing is not the evidence in detail, but it is the [353] substance of what it tended to prove directly, or by proper inference. There is no doubt that plaintiffs are entitled to enforce a contract made for their benefit by a third person. [Bank of Missouri v. Benoist, 10 Mo. 520; Robbins v. Ayres, 10 Mo. 538; Manny v. Frasier, Adm’r, 27 Mo. 419, 420; Rogers v. Gosnell, 58 Mo. 589, 590; Schuster v. Railroad, 60 Mo. 290; Cress v. Blodgett, 64 Mo. 449.] The trial court heard the testimony of the plaintiffs and of their mother, Sarah, but before deciding the case excluded it and announced that it would not be considered. In our opinion error was committed in excluding the testimony of the mother. The statute (section 4652, Revised Statutes 1899), provides that Avhen one of the original parties to the contract or cause of action, is dead, the other party to such “contract or cause of action” shall not be permitted to testify in his own favor, or in favor of any party to the action claiming under him. And Avhen an executor or administrator is a “party” the other “party” cannot testify in his own favor. But in the instance of the mother of these plaintiffs, Avhile she ivas a party to the contract, though made for the sole benefit of others, yet she did not testify in her OAvn favor. She had no possible interest in the controversy. She was a party to the contract made for the benefit of these plaintiffs, and she had fully performed her part of it; and the nature of the contract was such, being made for the benefit of other parties, that when performed by her, she had no further relation to it or concern in it. We discussed a like question in Thompson v. Brown, 121 Mo. App. 524 (citing authorities relied on by plaintiffs), in which we held the statute not applicable. We need not do more than refer to that case and to say that the recent opinion of the Supreme Court (Weiermueller v. Scullin, 203 Mo. 467), cited by [354] defendant, does not bear on tbe phase of the statute here considered. But we are of the opinion that the court’s ruling in excluding the testimony of the plaintiffs was correct. It related partly to what the deceased said to them and partly as to what he said in their presence concerning the contract. Though the contract was not made with them, yet it was for their benefit and was accepted by them. Their testimony in their own favor falls within the meaning of the statute. The statute is remedial and the construction given to it by the Supreme Court has been with a view to its spirit, which is equal footing to the parties. And since one is dead, the other should not testify. [Bates v. Forcht, 89 Mo. 121; Orr v. Rode, 101 Mo. 387; Williams v. Edwards, 94 Mo. 447.] It is true that the plain tiffs are parties in interest, and that interest alone, under the first clause of the statute, does not exclude a witness, where the other party is dead. And it is furthermore true that the subsequent clauses, by way of proviso, do not qualify the first clause as to interest when .one party is dead. [Weiermueller v. Scullin, 203 Mo. 467.] And it is likewise true that “the proviso confines the exclusion in case of death of one party to a party to the contract or cause of action.” [Bank v. Slattery, 166 Mo. 620; Bank v. Rood, 132 Mo. 256.] But we regard the plaintiffs, if not in reality parties to the contract, as certainly parties to the “cause of action.” The contract as we have stated it, was of such a nature as to give them the cause of action and they became parties to it when they accepted its provisions. The second proviso of the statute in reference to actions reads that when “an executor or administrator is a party, the other party shall not be admitted to testify,” etc. While only the word “party” is used in this clause, we consider that it means “party to such contract or cause of action” as written in the first proviso of the same section. [355] The Statute of Frauds does not apply to tbe plaintiffs’ case. Tbe contract was not a promise to pay tbe debt of another. [Flanagan v. Hutchinson, 47 Mo. 237.] We see no reason why it should not be enforced on tbe part of deceased, since it has been performed in toto by Mrs. Atkinson conveying her property as agreed. The judgment is reversed and the cause remanded. All concur.