175 Mo. App. 9 | Mo. Ct. App. | 1913
The original petition in this cause was filed on the 17th of January, 1908, and demanded judgment on an account made up of many items, beginning November 18,1893, aggregating $1500. Judgment was prayed in the original petition for this amount and interest, the latter placed at $1000', a total of $2500. On the 4th February, 1908, the death of the defendant was suggested and in .October of that year the cause was revived against her executor, and on the 7th of May, 1909, an amended petition was filed in which it is alleged that beginning with November, 1893-, and until the month of October, 1899', plaintiff had deposited, loaned and turned ov§r to her mother all of her weekly wages each week, from which was to be deducted $3.60 a week for board and lodging, showing weekly balances and interest to January 16, 1908, amounting to a total of $2538.40. It is further alleged in the amended petition that between January 1, 1900, and January 16,1908, on dates not specified with great particularity, plaintiff had advanced or loaned to her mother, or paid out on account of her mother, various small sums, $3.75 at one time, $4 at another time, $2.50 at another time, and $2.03 at another time, within the period last stated, and judgment is asked for these amounts and interest thereon from the dates of the payments. It is further in evidence, but not in the petition, that in 18991 plaintiff gave her mother ten dollars for a wrap.
The answer to the amended petition, denying every allegation, avers that whatever sums of money plaintiff paid1 to her mother, except the items after October 1,1899, the last charge in the account for wages alleged to have been turned over to her mother, were voluntary contributions for «the support and maintenance of her mother’s family, of which plaintiff was a member, and
• The cause being at issue was referred to a referee with directions to try all the issues therein and report his decision to the court. The referee proceeded to hear the testimony in the cause, no witnesses being produced by defendant. At the conclusion of the hearing the referee submitted his report which in substance is as follows:
That plaintiff, then Miss Margaret Talty, now Mrs. Margaret McGrath, lived with her mother, Mrs. Bridget Talty, and1 worked for the St. Louis Paper Box: Company for sometime before she became of age,, which occurred in November, 1893, and thereafter until September 30, 1899, with the possible exception of two or three weeks. Plaintiff kept no account of her payments to her mother, so far as appears by the evidence in the case, nor did hex mother. The evidence of plaintiff touching the payments by her to her mother and the items and dates of them, consisted in the production of the pay rolls and books of her employer. These showed that her earnings varied from $4.50 to $11.65, on one occasion reaching as high as twelve dollars, but the greater part of the time varying between six dollars and ten dollars. These wages were handed to the plaintiff in a sealed envelope which as a rule she opened when received, counted the contents and then on reaching home handed them over to her mother. This was a general custom but was not always followed. If there was loose change in the envelope plain
As his conclusion of law on the above facts the referee found:
“First. That there was no legal duty on the part of Mrs. Bridget Talty to repay or return to plaintiff any part of the money given by plaintiff to Mrs. Bridget Talty, and no legal obligation against the estate of Bridget Talty for repayment of such moneys, or any part thereof.
‘ ‘ Second. That if turning over by plaintiff to her mother of plaintiff’s earnings, or a portion of such earnings, from November 18, 1893, to September 30, 1899, constituted an account as between plaintiff and her mother, then such account was closed on September 30, 1899, and was barred by the Statute of Limitations at the time this suit was filed in January, 1908.
“Third. The amounts given by plaintiff to her mother in 1900,1903,1905 and 1907 have no connection with each other or with any of the amounts given by plaintiff to her mother between November, 1893, and October, 1899, and form no part of the account of moneys given by plaintiff to her mother between said last mentioned dates. ”,
The referee thereupon recommended that judgment be rendered in favor of defendant.
On the coming in of this report exceptions were duly filled to it by the plaintiff and on consideration were overruled by the court and judgment rendered in accordance with the report of the referee in favor of the defendant. Plaintiff, filing a motion for a new trial, which was overruled, duly perfected her appeal to this
This was an involuntary reference, involving the examination of a long account, and while it is true that the appellate court, “may, if so. inclined, review the findings of fact by the referee in cases of this character, and approve 'or disapprove it in whole or in part, is well settled, but it does not follow that it will do so.” [Citizens’ Nat’l Bank of Kansas City v. Donnell, 172 Mo. 384, l. c. 402, 72 S. W. 925 ; Sonnenfeld v. Rosenthal, 247 Mo. 238, 152 S. W. 321.] The report of the referee, however, is always subject to review by the circuit court, which court has not only the power but the duty to review the finding of facts by the referee. [Citizens’ Nat’l Bank v. D’onnell, supra.] When it appears as here, that the report has been subject to the scrutiny of the trial judge and approved, his action is always very persuasive. We are satisfied from the examination we have made of the testimony that there is substantial evidence to sustain the report of the referee, and as that report was opened up to the circuit court by exceptions, those exceptions considered by the" judge of that court and overruled, we see no .occasion to disturb that finding.
Counsel for the respective parties in their briefs have stated the various propositions of law upon which they rely, as going to the Statute of Limitations and the situation of the parties to each other. Without; taking them up in detail, it is sufficient to say that the evidence satisfies us that the finding of the referee is correct as to the character of the transactions between the parties. We also agree with his finding as to the running of the Statute of limitations and that all inquiry is closed as to all of the account down to the 1st of October, 1899', the action having been brought, more than five years after that date. It was not revived or continued as an account by the payments in subsequent years and within the statutory period1, for we think it
The judgment of the circuit court is affirmed.