Hunter v. Wabash Railroad, 149 Mo. App. 243

149 Mo. App. 243 | Mo. Ct. App. | 1910

COX, J.

Nothing was paid to plaintiff at the time he executed the satisfaction of the judgment and stipulation for reversal by the Supreme Court, and it is admitted that the satisfaction was without consideration; but it is now insisted by defendant that the satisfaction was voluntary on the part of plaintiff because of the fact that he had committed perjury in the trial which resulted in the judgment sued upon, and that when the “satisfaction piece” was attached to the margin of the judgment it had the effect of an executed gift to defendant of the debt evidenced by the judgment and could not be recalled by plaintiff, and that for that reason this suit must fail.

A gift when properly consummated is effective and conclusive between the parties. [Jones v. Falls, 101 Mo. App. 536, 73 S. W. 903; Meyer v. Koehring, 129 Mo. 15, 31 S. W. 449.] Therefore, if it be true that plaintiff intended by this satisfaction to forgive defendant the debt evidenced by the judgment and executed the “satisfaction piece” for that purpose, and did so voluntarily and without any improper influences being brought to bear upon him to induce him to execute it, he should be bound by it. [Gray v. Barton (N. Y.), 14 Amer. Rep. 181; Moclay v. Robinson, 36 N. Y. Sup. 530; Fassett’s Appeal (Pa.), 31 Atl. 686; Quick v. Quick, 155 Fed. 199.]

But a transaction to be an executed gift must be established by clear and convincing testimony and the burden of proof is upon the party claiming the benefit of the gift. [Jones v. Fall, supra.]

Was the execution of the “satisfaction piece” voluntary on the part of plaintiff?

After plaintiff had been tried and convicted for perjury, the Supreme Court upon appeal held in that case that the confession of plaintiff admitted at that trial was improperly admitted because the evidence disclosed that it was not voluntary. [State v. Hunter, 181 Mo. 316, 80 S. W. 955.]

The evidence in this case is conflicting as to just how plaintiff came to execute the “satisfaction piece” relied upon by defendant, but it is clear from all the testimony that his act in executing the satisfaction was induced by the conduct of his attorney Garber and Peers, attorney for defendant, and Kempf, the detective in the employ of defendant. Plaintiff was an ignorant negro who could neither read nor write. Garber and the detective had talked the matter over at Garber’s office before plaintiff was sent for, and when the plaintiff was brought in Garber allowed the detective full sway in his efforts to induce plaintiff to admit that he had committed perjury at the trial. The detective admitted that he lied to plaintiff in his effort to trap him and induce him to make a statement at variance with his testimony at the trial. Garber evidently knew that and made no protest. The plaintiff was a young man about tAventy-one years of age, and Garber had been first employed in the case by the father of plaintiff and at the time these papers were signed plaintiff’s father was not called or consulted. There were three other attorneys in the case with Garber, and they with him owned a half interest in this judgment. They were not consulted. Garber as prosecuting attorney procured from the detective, at the same time, an affidavit charging the plaintiff AA'ith perjury but did not start a prosecution against plaintiff until after it became known that the Supreme Court had refused to recognize the stipulation for the reversal of the judgment signed by plaintiff.

There was no evidence that plaintiff had committed perjury except this alleged confession to the detective and Garber; while it was shown that at the time of the accident, while plaintiff was lying by the railroad at the place of the injury, and immediately thereafter, he said the same thing that he testified to on the trial, and defendant had taken plaintiff’s deposition prior to the trial, and in that deposition his testimony was the same.

This case was, by defendant’s answer, converted into an equitable action, and in such case the appellate court will, after giving due deference to the finding of the trial court, try the case de novo as far as practicable and render such decree as the evidence warrants. [Turner v. Overall, 172 Mo. 271, 287, 72 S. W. 644; Kinney v. Murray, 170 Mo. 674, 707, 71 S. W. 197; Lins v. Lonhardt, 127 Mo. 271, 29 S. W. 1025.]

Following this rule we have gone over this testimony very carefully and have no hesitancy in saying that the trial court was amply justified in taking the testimony of plaintiff as giving the correct version as to how he came to execute the “satisfaction piece” relied upon by defendant, and, hence, the only proper finding the court could have made was that the plaintiff in executing this so-called satisfaction did not intend it as a gift to defendant, but that he executed it by reason of the influence brought to bear upon him by Garber and the detective. If this satisfaction by plaintiff was not intended by him to operate as a voluntary gift upon his part to defendant it was of no effect even though it should be conceded that the judgment was obtained by perjury, [Wabash Railway Company v. Mirrielees, 182 Mo. 126, 81 S. W. 437.]

It is also contended by defendant that even though the satisfaction of the judgment was not valid as a legal satisfaction yet plaintiff should be estopped from enforcing it because defendant relied upon it and abandoned its appeal to the Supreme Court in that case on account of it. If this be true, we would say that defendant ought to be granted the relief prayed for, but the record does not sustain that contention. Attorney Grover who was, at that time general attorney for defendant in Missouri, testified that the appeal was abandoned by reason of this satisfaction having been executed by plaintiff; but notwithstanding this testimony the record shows that after this satisfaction had been signed by plaintiff and attached to the record of this judgment, the defendant prepared and filed its bill of exceptions and also filed in the Supreme Court the stipulation to reverse the judgment and endeavored to have that court to reverse the case upon that stipulation and after the Supreme Court had refused to grant that request the appellant still had ample opportunity to have had the merits of its appeal heard by the Supreme Court but neglected to do so. Peers, local attorney for the defendant, and Kempf, detective of defendant, had procured the execution of the “satisfaction piece” by plaintiff, hence, defendant was chargeable with notice of all the facts connected with its procurement, and as all persons, artificial as well as -natural, are presumed to know the law, defendant must, in legal contemplation, have known that the satisfaction was a nullity, and especially was this true after the Supreme Court had refused to recognize the validity of the stipulation to reverse the judgment. In view of these facts, the conclusion is irresistible that the real reason defendant took no further steps in the prosecution of the appeal was that its attorneys in charge thereof concluded that the appeal was without merit and they were not induced to abandon the appeal by reason of anything the plaintiff had done.

The evidence in this case will not support the defense of estoppel. The judgment is for the right party and will be affirmed.

All concur.