264 S.W. 34 | Mo. Ct. App. | 1924
Lead Opinion
Plaintiff's evidence tends to show that Mrs. Freie received from defendant in the settlement of a divorce suit the note sued on as follows:
"$1000.00 St. Louis, Mo., December 23, 1919.
"April 1st, 1920, I promise to pay to the order of Lillie Freie One Thousand 00/100 Dollars, for value received negotiable and payable without defalcation or discount and with interest from maturity at the rate of six per cent per annum.
"H.F. FREIE. "Payable at Law office Kelly Starke. "1251 Pierce Bldg., St. Louis, Mo. "No. ______________ due __________________"
Plaintiff represented defendant's wife as attorney in a divorce suit filed March 3, 1919, wherein Mrs. Lillie Freie was plaintiff and H.F. Freie, defendant here, the defendant therein. During the divorce suit plaintiff for Mrs. Freie filed a motion for alimonypendente lite and for suit money, the court awarding Mrs. Freie the sum of $100 a month and $550 suit money, of which $500 was for attorneys' fees two-thirds of which inured to the benefit of plaintiff herein and his partner. It appears that while the divorce suit was pending, plaintiff loaned Mrs. Freie the sum of $300. At the request of Mrs. Freie, plaintiff also assisted in the criminal prosecution of defendant in Franklin county, for an attack on her father. In the divorce suit the depositions of eighteen or twenty witnesses were taken in Franklin county and fifteen or twenty witnesses in St. Louis. Plaintiff paid for Mrs. Freie $85 for taking depositions and copies thereof and $75 to an investigator of witnesses, as well as money for a financial report on defendant. During the nine months the divorce suit was pending Mrs. Freie, so the testimony *645 runs, was in the office of plaintiff almost every day, or at least three or four times a week, comprising 80 to 100 conferences, lasting from twenty minutes to an hour each, for consultation respecting the divorce suit.
On December 23, 1919, after the divorce suit had been pending for over nine months, Mr. Freie and defendant herein agreed to settle their differences. They met at the office of Mr. Robert Kelley, attorney for the defendant in the divorce suit. There was present at this conference, Mr. Kelley, defendant, Mrs. Freie, and plaintiff, her attorney and representative. According to plaintiff's evidence, defendant in settlement gave Mrs. Freie a $1000 check, the $1000 note sued on, a diamond ring, and the household furniture, to dismiss the divorce suit, which suit was dismissed that day or the next. In answer to a question as to the purport of the settlement between Mr. and Mrs. Freie, Mr. Kelley testified: "She said she would dismiss the suit in consideration of getting this property."
After receiving the settlement, the evidence runs to the effect that Mrs. Freie gave plaintiff the $1000 note sued on as a consideration for the money loaned and paid out and the legal services rendered. There was present at the time the note was given to plaintiff, Mrs. Freie, her sister, and plaintiff. Plaintiff testified: "She said she did not have any cash to pay us with; she wanted to know if we would take that note for a $1000, the note that is sued on in this case. I told her that I would. I told her to go ahead and indorse it. The note was lying on the table at that time. I had another desk on the other side of the desk she was seated in front of. I turned around there and when I turned back around she handed me this note face up. I took it, stuck it in the drawer and locked the key on it. She said: `I am glad to have that off my mind; I am glad that you are paid now.' I said: I think that settles all you owe us." This latter evidence was corroborated by the sister of Mrs. Freie, who accompanied her to plaintiff's office, where and when she gave plaintiff the note sued on. Mr. Kelley testified in substance: "That at the time Mrs. Freie was *646 in his office, during negotiations between defendant and herself regarding the settlement, Mrs. Freie said she was going to give the $1000 note to plaintiff on his fee."
Defendant's evidence tends to show that the settlement agreement entered into between defendant and his wife was upon the consideration of the wife agreeing to release all her rights in and to her husband's property. The wife also agreed to dismiss the divorce suit at the husband's costs. After the divorce suit was dismissed, the parties were not reconciled, but intended to live apart. Mrs. Freie claims the note was delivered to plaintiff for safe keeping only, and that she never relinquished her right or title to the note, nor did she employ plaintiff as her attorney to prosecute the criminal case against defendant.
In January, 1920, the parties to the divorce suit finally became reconciled and lived together as husband and wife. As a result of the reconciliation she never cashed the check for $1000. They considered the settlement heretofore made cancelled. The settlement agreement was never reduced to writing, but it was understood that Mrs. Freie would execute a release in writing of her interests in her husband's real estate.
The prayer of the motion for alimony pendente lite in part reads: "That defendant be ordered to pay a fair attorney's fee for the preparation and trial of this suit." The order of the court as to suit money reads: "And that he also forthwith pay to the plaintiff the sum of $550 as suit money, $500 of which is allowed as counsel fees and $50 of which is to be deposited to secure the costs herein."
Such other facts as we deem important, if any, will later appear.
I. Defendant's first assignment of error relates to the refusal of the trial court to give the jury the instructions in the nature of a demurrer to the evidence.
It appears that the note sued on was not indorsed by Mrs. Freie. The evidence, however, tends to show that Mrs. Freie gave it and plaintiff received it in payment *647
of money loaned and money advanced for depositions, as well as for services rendered. It is the settled law in this State that a written assignment or indorsement is unnecessary to convey title to commercial paper or to enable the holder to sue thereon in his own name as the real party in interest. [Willard v. Moirs,
II. Defendant complains of the action of the court in refusing its instruction marked "A." The instruction reads to the effect that the record is wanting in evidence that Mrs. Freie was indebted to plaintiff for services rendered for her in the divorce suit. Defendant contends that there was no evidence of indebtedness in view of the $500 attorney fee allowed. It does not appear from the order of the court nor the motion pendentelite that the allowance of $500 as counsel fees contemplated that plaintiff's fees were to be limited to the allowance made. It would be an unfair construction of *648 the order and the motion to say that the fees were limited to the amount allowed by the court. Then, again, plaintiff's evidence shows that Mrs. Freie, after the services were rendered, recognized an indebtedness to plaintiff and construed the contract by giving him title to the note, and it may be implied, at least, that it was given in payment of services rendered in her behalf in the divorce suit. This was some evidence that Mrs. Freie was indebted to plaintiff on that account. The instruction was properly refused.
III. Defendant asked an instruction to the effect that, if the wife, in consideration of the note sued on and other property, agreed to release her marital rights in the remainder of defendant's property and dismiss the divorce action, and that defendant delivered to his wife the note sued on and dismissed the divorce suit; and that after the institution of this action defendant and his wife adjusted their differences and resumed marital relations and have since and do now live together as husband and wife, the jury were to find the issues for defendant. The court refused the instruction as asked and at the end thereof added the following, "unless you further find and believe that it was the understanding between defendant and his wife that she should retain the money and property delivered to her by defendant without regard to a future reconciliation." The modified instruction then became the court's instruction and defendant may complain of it. [Old Bank of Stoutsville v. Jerry Curtis, etc. (handed down by this court April 1, 1924, but not yet reported).] Defendant asserts that the record is without evidence to support the modification. To this we do not agree. Plaintiff's evidence tends to show that the note was given the wife by defendant in consideration of her dismissal of the divorce suit. The record further shows that she did not consider a reconciliation until some time during the following January, but intended to live separate and apart from him. The note having been given in consideration of the dismissal of the divorce suit, without a further agreement on her *649 part to release her marital rights, as plaintiff's evidence shows, it may be inferred that Mrs. Freie took an unconditional title to the note. If so, and the jury so found, there was at least an implied understanding between defendant and his wife that she should retain the note without regard to future reconciliation and cohabitation. The modification was not error.
IV. The final complaint of defendant relates to instruction No. 5 given to the jury of the court's own motion. It is as follows:
"The court instructs the jury that the defendant admits the execution of the note made the basis of the suit, and the delivery of same to Lillie Freie, and the burden of proof is on the defendant to show by the preponderance of the evidence that the said note was placed in plaintiff's hands for safe-keeping only by Lillie Freie, and if the defendant failed so to prove then you must find against the defendant as to that defense."
The petition, after alleging that defendant executed the note and promised for value received to pay to Lillie Freie the sum of $1000, states: "Plaintiff states that the payee of said note, Lillie Freie, transferred to plaintiff for a good and valuable consideration before maturity, the said note." The answer relating thereto is as follows: "And for further answer to said petition defendant denies that said Lillie Freie ever at any time transferred or assigned said note to plaintiff, but, on the contrary, defendant says that said Lillie Freie delivered said note to plaintiff for safe-keeping only and that plaintiff owns no right, title or interest to said note or any part thereof and had no right to sue thereon." While the answer alleges that Mrs. Freie delivered said note to plaintiff for safe-keeping only, etc., it is in effect nothing more than an explanation of the denial that Mrs. Freie transferred or assigned said note to plaintiff. Taking this view of the answer, and considering the pleadings and the facts, we think the burden was upon the plaintiff to show that the note was transferred to him for a valuable consideration. As before stated, Mrs. Freie did not *650 indorse this note, and plaintiff alleges that it was transferred to him for value. Defendant denies this, and his evidence tends to show that the note was delivered to plaintiff for safe-keeping only, and that plaintiff had no right, title or interest in it.
While plaintiff's evidence shows that he was in possession of an unindorsed note and it was transferred to him for a valuable consideration, this did not relieve him of the burden of demonstrating that he was the owner of the note, inasmuch as both defendant's pleading and proof tended to contradict it. It is said in Wade v. Boone,
We do not consider Silverthorne v. Lumber Company,
The Commissioner recommends that the judgment be reversed and the cause remanded.
Addendum
The foregoing opinion of DAVIS, C., is adopted as the opinion of the court. The judgment of the circuit court is accordingly reversed and remanded. Allen, J., and Daues, J., concur;Becker, J., absent.
