107 Mo. App. 682 | Mo. Ct. App. | 1904
Lead Opinion
After a thorough review of the testimony in this proceeding, to my mind the action of the opposing parties in the negotiations finally closed October 28, 1895, must be construed as a decisive disposition of all claims and subjects of dispute between them, and that no reasonable doubt exists that the adjustment then reached was at that time so understood, treated and intended not merely by both plaintiff and defendant but by the counsel of the opposite parties. The consummation of this transaction was reached only after protracted deliberation and parley with the aid of professional advisers, and after situations in the negotiations had been presented where a specific settlement appeared destined to fail and its abandonment ensue. With the exception presently adverted to, the narrative of all conversant with and participating in the preliminary mediations, which ultimately ripened and culminated in delivery of the instruments of conveyance and the substantial payment made, demonstrates that all concerned in and participating in the transaction from its inception to its final stage, so understood and deemed the purpose and effect of the compromise proposed and carried out. The extracts quoted from the testimony (in separate opinion by Bland, P. J.), suffice to establish this, and if required, they might be elaborated by cumulative proof taken from the declarations of those attending the discussions and engaged in the completion of
the
judgment is therefore affirmed.
Dissenting Opinion
The suit is to recover $4,934.30 for money alleged to have been expended by plaintiff in the maintenance, education, etc., of four children born to plaintiff and defendant as husband and wife. The first item of the amount (filed with the petition) is dated November 2, 1892, the last February, 1895.
Besides a. plea of the five years’ statute of limitation as to a larger part of the account, there are two separate defenses set forth in the answer. First, that the plaintiff without the consent of the defendant, and against his will, and without adequate cause abandoned the defendant, took the children with her and refused to live with defendant. Second, accord and satisfaction of all matters in dispute between them after the account had accrued.
There was a compulsory reference of the case to Hon. Jas. F. Creen, who, after hearing the evidence, excluded all of the account which had accrued more than five years before the commencement of the suit, found that defendant was indebted to plaintiff on the other items of the account in the sum of $750, and in his report recommended judgment for that sum. Defendant filed exceptions to the report of the referee and moved that judgment be entered for defendant. The exceptions to the report were sustained, the report disapproved, and the court found the issues for the defendant, and adjudged that plaintiff take nothing by her suit. Exceptions were duly saved to the ruling of the court in sustaining defendant’s exceptions to the report of the referee, and to its action in entering judgment for the defendant.
It is the law of this State that the circuit court may, on motion of either party, review the findings of a referee, and make its own findings, and that appellate courts, on appeal, may review the proceedings and affirm or reverse the judgment of the circuit court. Wil
It appears from the pleadings and the evidence that plaintiff and defendant were twice married. First, on February 16, 1877. Two children, Cyrus C. and Henry M. Dixon, were born of this marriage. On the petition of the wife, a divorce was granted her. After the divorce, the parties were, on May 27, 1889, married a second time; of this marriage two more children were bom, William and Thomas Willard Dixon. In 1892, the home of plaintiff and defendant was in Vernon county, Missouri. In May, 1892, before the birth of Thomas Williard, the plaintiff, against the will and over the protest of the defendant, took their three children and went to her mother’s in the State of Illinois. She testified that when she left her husband, it was her intention never to live with him again in Missouri. Defendant owned eighty acres of land in Vernon county but the title was in his brother. Plaintiff was dissatisfied with this arrangement. , A short time before plaintiff left defendant, she had received $3,200 for her interest in some land's (known as the bottom farm), which she had inherited from her father. Defendant testified as follows:
‘ ‘ After she left me on May 14, 1892,1 made up my mind that it was much better for me to live with my family. I wrote Mrs. Dixon and stated in my letter that I was willing to have my brother Grant make us a joint deed, if she was willing to take what money she had received for her interest in this bottom farm and invest it in land in Illinois, I was willing to go to Illinois and live with them and do for them the best that I could. She wrote and accepted the proposition. I had my brother Grant make out the deed to she and me to show her that I was in earnest. I sent her the deed and stated in that letter for her to hold the deed until she purchased
He further testified that he did everything he could to induce 'his wife to* return to Missouri with him, but she positively refused to do so; that he was unable to make a living for his family in Illinois, and on November 2, 1892, returned to Missouri. Letters written by defendant to plaintiff, after his return, showed that he begged and entreated her to return and live with him; that- he offered to go to Warrensburg, Missouri, or to Kansas, where she had some relatives, and establish a. home, but she refused to return. Defendant testified that he gave up all hope of ever persuading his wife
On October 16, 1893, plaintiff instituted suit against defendant, in Madison county, Illinois, for a divorce. In her petition, she gave the names of the two younger children, but did not mention the other two. She asked for the custody of William and Thomas Williard, and for a “ decree of such property of the defendant and such sums of money to.be paid by him to her as the court may deem necessary and proper for the maintenance of herself and two children.” Defendant received notice of the suit and in May, 1895, went to Illinois and testified he tried to prevail on his- wife to again live with him, withholding from her the fact that, he had been divorced from her, intending to remarry her if she would agree to live with him; but that he was personally served with summons in the divorce suit a short time after his arrival in Illinois and he then finally gave up all hope of ever living with his wife.
Plaintiff testified that she had been requested by defendant many times to leave, before she left his home in May, 1892; that when she left, she went with her own free will, with the intention of never returning, and that defendant so understood it. She testified that defendant promised to have the. Vernon county land conveyed to their children, that she never asked him to have it, or any part of it, conveyed to her; that they moved to Edwardsville, Illinois, about September 7, 1892, and lived there a little over a month, when the defendant
Plaintiff gave evidence tending to prove the items of her account, stated that in 1895 defendant told her he had made a good deal of money, owned a good farm in Barton county, Missouri, and was making money; that she then demanded of him to do something for the children, but he refused; that when he refused to do anything, then “I made up my mind to try to compel him to do so. I gave him the opportunity to help of his own accord. I didn’t like to begin this suit — didn’t like to get the children mixed up in it, but I thought that it was my duty to' ask Mr. Dixon to help, and if he wouldn’t to compel him to help the children. I thought that it was my duty, as much as I disliked it. ” v
Defendant denied that he wanted to leave any. of his children in Illinois, denied that he so stated to his wife in November, 1892,'or at any other time; on the contrary, he testified that he wanted' all of his family together and that he had a father’s affection for his ‘children, but that the younger ones had been taught to disrespect him.
The evidence showc that the defendant has contrib
In respect to the plea of accord and satisfaction, defendant testified that he undertook to settle the divorce suit his wife had brought against him. “I said to her that we would both have attorney’s fees to pay; that we would have additional expenses; that I would much prefer to give this money to the children than to give it out in that way. I also said to her that I thought it was not right that I should be deprived of living with my children, and after I put forth the effort that I had, that I should pay her anything, and, again, from the fact that she was worth, at that time, many times more than I was. I said to her that she had an interest in the home place of four hundred and eighty acres of land — a fifth interest. In addition to that she had the larger part of the money she received for her interest in the bottom farm, but, nevertheless, rather than to pay this money to lawyers and other expenses we would have to incur, I would prefer to pay it to the children, and I said to her that four or five hundred dollars would be sufficient, or that it was all that I ought to pay, but she refused to accept the four or five hundred dollars. Finally I said to her that I would make it nine hundred dollars. ... It was then that I told her that I was divorced. I also told her that I was going to get married. I had lost all hopes of being able to reconcile her. I told her that I felt that I had done my duty and that I had given up all hopes and that I had decided to marry again, and for all those reasons, I was extremely' anxious to get this matter settled for all time, for the present, for the past and for the future, so that noth
He also testified that his wife said she would accept these terms. She denied that any such offer was made, saying that the matter was talked over between her and defendant, but they came to no agreement. Defendant further testified that they agreed on a day to go to Edwardsville to settle the matter, and that they met in Edwardsville at the office of Mr. Bradshaw, her attorney, and when he reached the office she was out of the notion to settle on the terms proposed by him and said that she would not settle for nine hundred1 dollars, but that she would settle for twelve hundred dollars. “I said to her and to Mr. Bradshaw that I would not give over nine hundred dollars, and before I would give her over nine hundred dollars, that I would fight the case then pending in the courts at Edwardsville. . . . Mr. Bradshaw told me that if I didn’t pay the twelve hundred dollars, that he proposed to push the suit in Edwardsville, then pending, and that he fully expected to offset the divorce that was granted me at Warrensburg, Missouri. ... I said that before I would give more than nine hundred dollars that I would engage an attorney and fight the case. ... I left the office and went from there over to Greenville, Bond county, for the purpose of securing the firm of Northcott & Fritz to take charge of this case.” He testified that all the features of the controversy were discussed, and that he told his wife he was not there to settle one thing, but everything, the past, present and future, and that the maintenance of the children was mentioned; that in the conversation with his wife, he said to her, “I will give you nine hundred dollars as a settlement in full,” and that was for.the maintenance of the children,
On October 18, 1895, Northcott & Fritz addressed a letter to Dale & Bradshaw in which they stated, ‘ ‘ Our client, Mr. H. M. Dixon, has concluded to accept the compromise and pay your client $1,000 for her interest in the land and a clear settlement of'the matter.” The thousand dollars was paid, deeds were interchanged between plaintiff and defendant and the divorce suit pending in Madison county was dismissed. Gov. Northcott, . in respect to the settlement, testified as follows:
“My recollection of the matter, from correspondence with Mr. Bradshaw and otherwise is, that the question of the determination of the pending suit, wherein Rose Dixon was plaintiff, was a very material point between the parties, and the divorce proceedings in Missouri were to be questioned in the Madison county proceedings, as also were the questions of alimony and support of the children. They were also to be pushed unless settlement was made.
“After the conclusion of the matter, in the correspondence with Mr. Bradshaw and myself, there was nothing remaining to be done except the payment of the thousand dollars, the passage of the deeds and the dismissal of the suit. As attorney for Henry Dixon, my associate, Mr. Fritz, was instructed to conduct this final settlement between him and Rose Dixon, of all matters in controversy between them. My recollection, from review of the record, is that it was dismissed by order of the complainant, and that was the agreement as I understood . it — that the thousand dollars paid ■covered all matters. ’ ’
Mr. Fritz, in respect to the matter, testified as follows :
Plaintiff testified that Mr. Bradshaw represented her in the settlement as her attorney. Bradshaw testified that the payment of the $1,000 and the passing of the deeds was a full and complete settlement of all differences that existed between the plaintiff and defendant at that time. The plaintiff’s testimony tends to show that the expenditures, which had been made by her for the maintenance and support of her children in the past, were not in her mind or mentioned by any one at the time the settlement was made, nor is there any evidence to he found in the record that this matter was mentioned by any of the parties at the time the settlement was made, or that it was even thought of.
In respect to the two special defenses, the learned referee reported as follows:
“ There is much testimony in the record as to what occurred at these various conferences and as to how the parties regarded this adjustment, defendant claiming — as he frequently testified — that it was intended to settle all differences ‘past, present and future.’
“No receipt or memorandum in writing of any kind was signed by the parties at the time of this adjustment, and the intention of the parties must he determined from the -facts alone as shown by the testimony.
“It may he conceded that plaintiff abandoned defendant when she left him in Vernon county, Missouri, though they subsequently lived together. It was the
“It does not follow1, however, that this defense set up in defendant’s answer, can avail as against the claim of the plaintiff for the support of their children.
“Mr. Bishop says, in his work on Marriage and Divorce, that it is not the policy of the law.to deprive children of their rights on account of the dissensions of their parents, to which- they are not parties, and this doctrine has been approvingly cited in several cases in Missouri, to wit: Rankin v. Rankin, 83 Mo. App. 340; McCloskey v. McCloskey, 67 S. W. 871, 93 Mo. App. 393; Keller v. St. Louis, 152 Mo. 600, 54 S. W. 438.
“Nor is defendant entitled to defeat plaintiff’s cause of action upon the defense that he was willing and. able to support and maintain his children. If, as a father, he was entitled to their care and custody, the courts were open to him to secure and control them. As is said in the case of McCloskey v. McCloskey, 67 S. W. 672, ‘It is not the law of this State that defendant vas excused from supporting his children, even if the wife withhold their custody and society from him. ’
‘ ‘ There remains to consider, therefore, the' further defense of accord and satisfaction pleaded' in defendant’s answer.
‘ ‘ As to- this, it may be said that the parties have the right to make such adjustment of matters ofcontroversy pending between them as the courts might have made for them, and it devolves upon the defendant here to establish by a preponderance of the evidence, that
“If it was intended by the parties to operate as a settlement of all claims, present and future, which plaintiff might have against defendant, then, the plaintiff had the unquestioned right to make such settlement so far as she was concerned, and if so intended, I think it would operate as a bar to any further claim upon her part, growing out of the transactions included in the settlement:
“I think it is reasonably certain, however, that the attention of the parties was not directed to any other matter than that pending in the circuit court of Madison county, Illinois, namely, the application for divorce by plaintiff and alimony for her support and maintenance and her application for the support of two children named in the petition, to-wit; William Dixon and Willard Dixon, together with the desire on defendant’s part to free his lands in Missouri from the title which plaintiff, his former wife, had in them.
‘‘ The term ‘matter, ’ mentioned in the letters of the attorneys, as well as the ‘matter’ referred to in the conversations of the parties, only had in view such matters of controversy as were then pending between the parties.
“In the absence of any agreement in writing, or other specific designations, as to what should be included in the compromise made by the parties, only such matters of difference as then existed could reasonbly be brought within the terms of the settlement, but as to these, the settlement made by the plaintiff and defendant is a complete bar to any further claim on her part, and she is therefore precluded from any recovery as to William and Williapd Dixon.
“This disposes of the case except as to such claim as plaintiff may have for the support and maintenance of the two children of herself and defendant (Cyrus
“It is well settled law in Missouri that a divorced father is liable to his former wife for expenses incurred by her in the support of their minor children, the Court of Appeals, in Rankin v. Rankin, 83 Mo. App. saying:
“ ‘The father is also made by statute primarily the guardian of his children and charged with the care of their persons, education and estate. R. S. 1899, sec. 3478. The neglect of this statutory duty in no wise relieves him from the charges incurred by others in the necessary maintenance of his offspring. The divorce from his own wife does not divorce him from his children. The future welfare of his children is the most powerful motive which nature and social duty implants in the bosom of the father! These obligations in the case at bar rendered it the duty of defendant, to the extent of his ability, to rear and educate his children, which was none the less binding in that their custody was left with the mother. When this charge was neglected by him she seems to have consecrated her entire energies to its fulfillment. The money thus expended by her for a duty which he primarily owed, was just as legal a charge'against him as if it had been contributed by a total stranger, for after the obtention of the divorce, that was the legal status which she occupied towards the defendant. If a third party had supplied the children of defendant with the necessaries, a recovery might have been had to that extent without proving any further agreement than that implied by law for the fulfillment of the father’s - duty to the child, hence in this case there was no necessity for alleging or proving that the money furnished by the plaintiff was in accordance with the express agreement with the defendant.’ ”
In respect to the care and custody of Cyrus and Henry Harrison Dixon, the referee made the following finding:
“She also had the care and custody of Henry Harrison Dixon during the five years preceding the institution of this suit, paidhis tuition while in school, board, furnished his clothes and other necessaries.
“The testimony shows that in the neighborhood in Illinois where the parties lived board and lodging were reasonably worth from $2.25 to $2.50 per week or about $10 per month.
“Plaintiff paid for tuition for Cyrus in the latter part of ’96 and first of 1897, forty-six dollars.
“It is also shown in the testimony that these boys worked, a portion of the time at least, upon the farm of their mother, and while they were not farm laborers in the ordinary acceptance of that term, they rendered services on the farm which were of value and for which plaintiff would otherwise have had to pay.
“Upon a careful examination of the testimony in relation to the expenses incurred by plaintiff altogether, and allowing such offsets as ought to be allowed for the services of plaintiff’s sons, I am of the opinion, and so recommend that judgment be entered in favor of the plaintiff as follows:
“Expenditures, board, etc. incurred on the
part of Cyrus Dixon, 2 1-2 years, the sum
of .................................. $250.00
“Such expenditure for board, etc., on part of
Harrison Dixon, in the sum of.......... $500.00
“Making a total of.................... $750.00
“For which amount the referee recommends judgment in favor of plaintiff.”
I think the judgment should be reversed and the report of the referee confirmed.
