Snyder v. Patrick

ELLISON, P. J. This action was begun in tbe probate court of Cass county on a claim against tbe estate of Grant Fulton, deceased. On appeal to the-circuit court a demurrer to the evidence was offered by tbe executor and sustained by tbe court. Tbe demurrer was sustained on tbe ground of incompetency of witnesses testifying for plaintiff. These were herself and ber son Fred Snyder. It appeared tbe deceased was plaintiff’s uncle, ber mother being deceased’s sister. Their father died and this plaintiff, bis granddaughter, became tbe owner of forty acres of bis landed estate. But ber husband being an improvident man of uncertain habits, she bad tbe title put in tbe name of ber minor son Fred, so as to make certain tbe husband would not get it from ber. It further appears that deceased- bad charge of bis father’s business and managed and controlled bis lands and that be continued this management and control over tbe forty which came to plaintiff. That be collected tbe rents and profits for several years without accounting' to plaintiff or ber son. Finally be sold tbe [322] forty to one Kircher and gave him a bond for a deed, taking to himself the purchase price. At about this time maybe before, plaintiff’s son Fred, being merely a trustee for her, and having arrived at his majority, deeded the land to his mother. Deceased binding himself under the necessity of getting a title for Kircher as agreed in his bond, went to Fred, with whom he was on close terms, and engaged him, as his agent, to go-to his mother and make an agreement with her that he, deceased, would account to her for the back rents and profits he had received and would deed her an eqnal number of acres if she would deed to him, deceased, or Kircher her land which he had sold to Kircher. Plaintiff agreed to this proposal and Fred so reported to deceased; and plaintiff afterwards made the deed as. agreed. Fred, having once had the title, in order to satisfy Kircher, made a quitclaim to him before plaintiff deeded. It further appears that deceased after-wards conveyed two small tracts to plaintiff in partial performance of his contract; one of thirteen acres and the other of seven. After stating the value of the land conveyed to Kircher by plaintiff and the value of the-rents and profits retained by deceased and crediting the value of these small tracts, the claim in suit is for the balance. The statement which we have made is sufficiently full to make clear our conclusions. To justify the demurrer, Fred must have been an incompetent witness ;■ for if he is to be believed plaintiff is entitled to recover. His competency is insisted upon on the ground' that he was deceased’s agent and whether he was or not must be determined from his testimony in deciding whether the demurrer was properly given; and from that it is clear he was competent. He states that he had no interest in the matter — was not acting for himself or his mother — but that defendant came to him- and engaged him to make the contract (as above outlined) as his agent and that he did so. The contract [323] of a deceased person if made through a living agent, prevents the disqualification ordinarily obtaining where one party is dead. The reason for the rule has ceased. In this case the principal to the contract is dead, hut his agent who made the contract for him is not. [Dewein v. Hooss, 237 Mo. 23, 38, 39 ; Southern Com. Bk. v. Slattery, 166 Mo. 620 ; Ford v. McClain, 164 Mo. App. 174 ; Brewery Co. v. Rohling, 133 Mo. App. 65.] Defendant makes an effort to show that the testimony tending to prove Fred to he deceased’s agent should not he believed. But on demurrer we should not consider that question. ' • The judgment is reversed and cause remanded. All concur.