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Lampe v. Franklin American Trust Co.

Supreme Court of Missouri · Civil Procedure

Civil ProcedureDead Man's StatuteWaiver of witness incompetencyMaterial alteration of negotiable instrumentsBurden of proofJury instructionsdead man's statutewaiver

Facts

Plaintiff claimed Birkenback executed and delivered a $9,900 note to him, while defendants denied execution, delivery, indebtedness, and consideration and contended the instrument had been materially altered from a note signed for some other purpose. The note bore visible erasures, obliterations, different inks, and evidence suggesting names had been inserted and removed, including changes involving the payee and a second signature beneath Birkenback's signature. Plaintiff testified that Birkenback signed the note, delivered it to him, authorized completion of the payee line, and consented to erasing a second maker name after deciding the obligation should not be a company obligation. Defendants had earlier introduced in evidence, at the first circuit-court trial, a transcript of plaintiff's prior cross-examination in another probate matter concerning the same note transaction.

Issue

Did defendants waive plaintiff's incompetency under the dead man's statute by offering his prior testimony about the note transaction, thereby making him competent to testify to the whole transaction? If so, was plaintiff's evidence sufficient to take the altered note case to the jury, and were plaintiff's jury instructions nevertheless erroneous because they misstated the effect of the alterations and the burden concerning consideration and validity?

Rule

If the personal representative of a decedent offers the surviving party's former testimony about the transaction in issue, the surviving party's statutory incompetency is waived for the whole transaction and cannot be limited to selected parts. Where a note shows suspicious alterations on its face and execution as altered is denied, the note carries no presumption of integrity; the plaintiff must produce evidence explaining and justifying the alterations before the note is admissible and must bear the burden of convincing the jury that the maker executed or assented to the note as altered. A change that may alter the rights, duties, or obligations of the person charged is material; thus, changing a partnership note into an individual's personal obligation is a material alteration enforceable only if the maker authorized or assented to it.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a probate dispute in St. Louis, Nora Velez claims that Samuel Dunn gave her a signed promissory note before he died. At trial, the executor offers into evidence a transcript from an earlier guardianship hearing in which Nora, under oath, described the note transaction with Samuel. When Nora later takes the stand, the executor objects under the dead man's statute.

How should the court rule on the executor's objection?

Explanation. The majority treated the representative's use of the survivor's former testimony about the transaction in issue as the equivalent of calling that person as a witness. The statute is a shield, not a sword, so the executor cannot introduce the survivor's prior account and then block her from testifying. The waiver arises from offering the prior testimony itself. (Derived from Lampe v. Franklin American Trust Co. (n.d.).)