238 S.W. 141 | Mo. Ct. App. | 1922
This is a suit for a commission alleged to be due plaintiff for procuring a loan. Originally it was brought against a number of other persons joined with defendant. At the first trial verdict and judgment were for plaintiff and against all the defendants. On appeal this court reversed the judgment outright as to all except the defendant herein and, as to him, reversed the judgment and remanded the cause for a new trial on account of error in instructions. [Bartlett v. Garrett, et al., 175 S.W. 79.] The cause was retried, resulting in a judgment for plaintiff in the sum of $7,000, and defendant appeals.
The petition alleges that defendant employed plaintiff to secure a loan for defendant and others who were engaged in organizing the Missouri, Fidelity Casualty Company of Springfield, Mo., from some bank or trust company in Kansas City, Mo., in the sum of $75,000, *614 on certain terms and conditions, and plaintiff was to be paid as commission therefor, the sum of $5,600; that in pursuance of said employment he found a bank and a trust company, either of which would make the loan; that afterwards defendant and his associates secured the loan from the bank and thereafter refused to pay plaintiff the sum agreed upon for his services. The prayer was for $5,000 and interest.
The answer is, first, a general denial and by way of separate defense, defendant alleges that on May 30, 1914, he filed in the District Court of the United States, in and for the Southern Division of the Western District of Missouri, at Springfield, his petition asking to be adjudged a bankrupt, and that with said petition was filed a list of creditors, including plaintiff herein; that on said petition defendant was duly adjudged a bankrupt on June 1, 1914, and was discharged as a bankrupt on August 24, 1914; that plaintiff was duly notified of said finding and of the time and place for filing his claim against defendant.
Plaintiff denied that the discharge in bankruptcy affected his claim because (a) he had not been notified of the bankruptcy proceedings during their pendency; (b) because the claim was so listed that it was not described as the debt of the bankrupt, but as that of the Missouri Fidelity Casualty Company, and, (c) because it was not such a claim as could be discharged in bankruptcy.
A jury was waived and the cause was tried to the court. Four declarations of law were given upon request of defendant. The finding was for plaintiff in the sum of $7,000. The court refused to give certain other declarations of law asked by defendant. A motion for new trial was overruled and defendant appealed.
The same evidence was introduced as in the former trial, being read from the Bill of Exceptions, and as this court in its opinion above referred to, ruled on all the objections now urged by defendant, excepting the bankruptcy question, it will be necessary for us to pass only upon that point. *615
In his first assignment of error defendant urges that his discharge in bankruptcy was a bar to plaintiff's recovery. The testimony is that in his bankruptcy proceedings defendant scheduled the item in controversy under the following heading: "Liability on notes or bills discounted which ought to be paid by drawer, maker, acceptor, endorser — Schedule A4." This claim was described in said schedule as follows:
"Charles Bartlett, Kansas City, Missouri, judgment for $5,000 jointly against W.L. Taylor, J.A. Taylor, W.L. Garrett, H.L. Schneider, E.E.E. McJimsey, J.P. McCammon and J.R. Boyd, all of Springfield, Missouri. Case now in Kansas City Court of Appeals. Bond signed by Missouri Fidelity Casualty Company. Judgment if affirmed to be paid by Missouri Fidelity Casualty Company, (signed) William Lawrence Taylor, petitioner."
The bankruptcy proceedings were instituted while this case was pending on appeal from the verdict and judgment on the former trial, and for this reason plaintiff urges that the discharge in bankruptcy does not bar his recovery for the reasons (a) because the claim was not one which was provable in bankruptcy; (b) because the claim was listed, scheduled and described as one which should be paid by someone other than the bankrupt; (c) because the bankrupt was not notified of the pending of the bankruptcy proceedings as required by the Bankruptcy Act.
The Bankruptcy Act of 1898, section 7, sub-division 8, makes it the duty of the bankrupt to prepare, make oath to, and file a list of his creditors, showing their residences, if known, and if unknown, that fact to be stated.
The testimony shows that plaintiff had the same residence and post office address in Kansas City, Missouri, at the time of the former trial and continuously until several months after the discharge of the bankrupt; that the suit was instituted in the name of Charles W. Bartlett and that all of the letters addressed to plaintiff in 1910, relative to the loan to be made, were addressed *616 to Charles W. Bartlett. It is also in evidence that, at the time defendant claims a notice was mailed to Charles Bartlett, there was one Charles E. Bartlett living in Kansas City, Missouri. Plaintiff testified that no notice of the bankruptcy proceedings was ever received by him.
In this connection, the record further shows that Langsdale Howell of Kansas City, Mo., were the attorneys for plaintiff at the former trial, and that the first actual notice of the bankruptcy proceedings was contained in a letter addressed to them by the attorney for defendant, but such notice was received by said attorneys long after defendant's discharge in bankruptcy.
It is also noted that prior to the institution of the bankruptcy proceedings, defendant addressed letters to plaintiff invariably as "Charles W. Bartlett." On one occasion defendant addressed plaintiff at Kansas City, Missouri, and again, at Box 904, Kansas City, Missouri. The testimony further shows that plaintiff and defendant had been intimately acquainted prior to the time this controversy arose, that they belonged to the same church and had many mutual acquaintances.
We hold that, under this evidence, defendant will be charged with knowledge of plaintiff's address more definitely than appears in the schedule in the bankruptcy proceedings. It remains to be determined whether the address of plaintiff as set forth in the bankruptcy proceedings is sufficient compliance with the Act to entitle defendant to his discharge from this obligation. This question arose in Caglistro v. Indelle, 17 A.B.R. 685, decided in February, 1907. In that case the address of the creditor was scheduled as "Mulberry Street, New York City." It was shown the creditor lived at 141 Mulberry Street at the time of filing the schedule and petition and had resided at such place for fifteen years previous thereto, and that during all that period his name had appeared in the city and telephone directories at that number. It also appeared that the petitioner knew the name and address of the attorney for the judgment creditor. The court said:
"I am satisfied that the petitioner, when he made *617
up the schedules, failed to use due efforts to learn the street number of the judgment creditor, and that it was owing to such failure on his part that the judgment creditor received no notice. Such failure deprives him of his right to a discharge of such judgment. [Columbia Bank v. Birkett,
True, the city of Kansas City is not so large as New York, but that cannot alter the rule. Defendant, in support of the sufficiency of the address upon the notice cites Krettlein v. Ferger,
It is said in the Kreitlein case, supra, "There are only a few instances, under the Bankrupt Act, in which the courts have had occasion to deal with the subject, or to construe section 7 (8), — requiring claims to be duly *618
listed — in connection with section 17, which provides that a discharge shall release the debtor from all provable debts `except such as . . . (3) have not been duly scheduled in time for proof and allowance, with the name of the creditor if known to the bankrupt, unless such creditor had notice of actual knowledge of the proceedings in bankruptcy . . .' It has been held that a claim is not duly scheduled if the name of the creditor is improperly spelled (Custard v. Wigderson,
In the Birkett case, supra, the court said that "the law attaches a punitive consequence" which is set forth in section 17, for failure to comply with the provisions of section 7, of the Act of 1898. We think it follows from the rule laid down in that case, that if a discharge is to have the effect of cancelling the debt of the creditor who had no notice of the proceedings, the burden is upon the bankrupt to show substantial compliance with the Act.
The requirement for duly scheduling the names of creditors is in compliance with the generally recognized principle that one cannot be barred of his claim without the opportunity of having his day in court. It is for the benefit of the creditors and in the interest of fair dealing with them and must be construed in harmony *619
with this purpose. [Birkett v. Bank, supra; Custard v. Wigderson,
We hold that it is a question of due diligence in every case and in the case at bar, defendant will be charged with lack of such due diligence. The testimony shows that the scheduling of the name of plaintiff was not diligently done; that defendant knew plaintiff's full name as Charles W. Bartlett, and, further, that he knew his address in the city of Kansas City, Missouri.
It is further held that under the facts and circumstances in evidence, defendant is not properly entitled to his discharge from the item of indebtedness under dispute. In this view of the case it is not necessary to determine whether or not the item was listed under the proper heading.
There is no reversible error in the record. For the reasons above stated, the judgment is affirmed.
All concur.
