218 Mo. 624 | Mo. | 1909
This is an action to recover moneys loaned by plaintiff to defendant. The first item mentioned in the petition is $3,500, a legacy under the will of Jason Crawford bequeathed to defendant in trust to pay the interest to testator’s sister, Elizabeth Somerville, during her life, and the principal to the plaintiff at the death of Elizabeth; Elizabeth died September 22, 1883, and plaintiff then being entitled to the principal loaned it to the defendant at his request on the agreement that he would pay it to plaintiff on demand and eight per cent interest per annum. The petition also states that in November, 1894, she loaned defendant $25,000 which she at that time received from the Equitable Life Assurance Society of New York, $5,000 from the Massachusetts Mutual Life Insurance Company, and $3,015.16 from the Mutual Benefit Life Insurance Company. The petition admits the payment to her in 1893 of $1,400 on account of the loans and the same amount in 1895, and avers that in 1895, about four months after the life insurance moneys were loaned as above stated, defendant rendered the plaintiff an account of his indebtedness to her showing the amount due her for principal and interest $34,500, which sum he agreed and promised to pay on demand with interest at six per cent per annum. The petition then states that from November, 1894, up to and including September, 1899, the defendant paid plaintiff monthly, on account of the indebtedness, various sums ranging from $150 to $200 per month (she is unable to state it more accurately) and not any more. The prayer of the petition is for
The answer is first a general denial, then follows an admission of having received from plaintiff $32,500 which it states defendant was to keep and invest -for plaintiff. Then there is a statement that he paid out for her from time to time sums aggregating $28,611.27, of which he files a list nxaxked “Exhibit A,” and in addition thereto that he paid out for rent for her $1,000 a year from 1895 to 1900 inclusive, total $5,000; that in 1898 at her request he delivered to her fifty shares of stock of the Andes Mining Company for which he paid $5,000; that in 1899 he paid her amounts collected by him as rent for the house at Westminster Place in the city of St. Louis which he had purchased, $100 per month, $1,200; that in 1900 he deeded to her two houses in Westminster Place subject to mortgages, the equity in which by agreement was fixed at $12,000; that in 1900 “he assigned to her by way of power of attorney” to collect a portion of an estate in Ireland, valued at $4,000; that he gave sums to her sons at her request from time to time and paid out expense money for moving her family to New York and money sent her when she was in Europe, aggregating $1,000. Total payments alleged to have been made, $56,811.27, “largely in excess of what was received by him from her, for which with interest he prays judgment. ’ ’ The reply joins issue on all of those averments.
The suit was filed to the December Term, 1900, of the St. Louis Circuit Court; at the February Term, 1901, March 18, defendant filed his amended answer, as above, and by stipulation filed, the cause was on that day referred to George E. Smitb, Esquire, to try all issues and report. The trial was long, running through several years apparently, and the referee filed his report January 15, 1906. The report is full, covering all the disputed facts, and covers 15 printed
I. Before entering upon a consideration of the case on its merits we will notice a point made by appellant which if sustained would annul the whole trial and send the cause back to be tried all over again.
The point as stated in appellant’s brief at page 139 is: “The record does not show that the referee ever took the oath of office mandatorily required by statute, Revised Statutes 1899, section 703, which invalidates his report and findings.”
The cause comes here on a short transcript, supplemented by an abstract of the record filed by appellant., in which there is no mention of the referee’s oath or any allusion to that subject. Appellant’s statement in his brief is that “the record does not show that the referee ever took the oath.” If by the use of those words appellant means to say that neither the short transcript nor the abstract filed by him shows that the referee took the prescribed oath, the statement is correct, but if he seeks to convey the idea that the record in the circuit court does not show that fact then he should have so stated. The record in this court is one thing, that in the circuit court is another; a fact may be omitted in so much of the record as appellant sees fit to bring here, yet appear in the circuit court record. Therefore, a party com
What we have just said is well illustrated by the facts of this case; after appellant had presented his brief containing this point, respondent, as she had the right to do, filed a counter abstract in which, with other matters/she has set out the oath of the referee in due form taken before the clerk on the next day after his appointment and before he began the trial. Section 813, Revised Statutes 1899, gives appellant the right, if he does not concur in this additional abstract, to file his written objections thereto, and he has availed himself of that right and filed an objection, the substance of which is- that the oath does not bear the file mark of the clerk. We notice the change in the attitude; first he said or sought to imply that there was no oath, but when the oath is produced he says it does not bear the file mark. There is no question as to the form and validity of the oath, it bears the signature of the referee and that of the clerk certified under the seal of the court, but it does not bear the file mark of the clerk, and for this reason appellant contends that the whole proceeding is a nullity.
Section 703, Revised Statutes 1899, Ann. Stat. 1906, p. 710, directs that the oath be taken “before
In Vogt v. Butler, 105 Mo. 479, among other exceptions to the referee’s report, was one that it did not appear in the record that the referee had taken the oath, but on the hearing of the exceptions in the circuit court proof was made by affidavit to the effect that on the day the referee was appointed the oath was administered to him by the judge of the court, though no record dr memorandum of it was made; upon that proof the circuit court allowed the referee to amend his report by interlining the statement that he had taken the oath. In passing on that question this court per Gantt, P. J., said: “It is too late to object to the referee’s report on this ground after all this acquiescence and consent. The subscribing of the oath was directory. The taking of the oath was the substantive fact required by law; the subscribing and filing it was intended to preserve the evidence of this compliance with the law. The attorney for the plaintiff appeared before the referee, examined and cross-examined the witnesses, and argued the cause before the referee and made no objection at any stage of
In the case at bar we have the oath duly subscribed by the referee and certified under the hand of the clerk and seal of the court, and lacking only the file mark of the clerk. Unusually long and apparently painstaking has been the trial, no hint of disqualification of the referee is made during the trial nor in the 31 exceptions to the report filed by appellant, nor in his motion for a new trial, or in arrest of judgment, hut only when the cause reaches this court is the supposed infirmity noticed. There is no merit in that point.
II. The evidence shows that the plaintiff is the sister of the defendant. The trust in him of her money affairs is shown to have commenced before the death of her husband, as early as 1883, when she loaned him seven hundred pounds sterling. That was a sum that Jason Crawford had bequeathed to defendant to be held by him during the lifetime of the testator’s sister Elizabeth, the interest to be paid to her, and on the death of Elizabeth the principal sum to be paid to the plaintiff. When-the life beneficiary died it was agreed between the plaintiff and defendant that he would retain the money as a loan and pay her eight per cent interest per annum on the same. There is no dispute about that.
The plaintiff’s husband died in 1894, leaving three life insurance policies payable to her, one in the Equitable for $25,000, one in the Massachusetts Mutual for $5,000, and one in the Mutual Benefit for $3,015.16. These several sums were collected in November, 1894, and.placed in defendant’s hands. The only difference between plaintiff and defendant as to those items is that she says they were loaned to him, while he contends that they were placed in his hands to be by him
Sufficient appears to put it beyond question that the defendant, at the several dates mentioned in the petition, received the several sums of money as in the petition stated and the only questions left to be considered relate to the credits to which the defendant is entitled. Before going into the smaller items we will notice some of the larger amounts which defendant claims as credits.
(a). In August, 1900, defendant gave plaintiff a power of attorney to collect his share of the estate of an aunt of theirs, Miss Sophia Crawford, in Ireland, and he claimed in his answer to be entitled to a credit for that share. We infer from the abstract that at the time he gave this power of attorney the aunt was living but has since died. He never before this suit gave the plaintiff an assignment of that interest and when requested refused to do so. But in his answer to the petition he said that he “assigned to her by way of power of attorney” that interest, and in his testimony he said that he gave her the power óf attorney to .collect his share in that estate and keep it for herself. Upon that pleading and evidence the referee allowed the defendant $3,000 as a credit on that account. Although the power of attorney, standing alone, would not have been equivalent to an assignment, yet taken in connection with defendant’s plea, and his own evidence and the allowance to him of that sum in the account, and the plaintiff^ acquiescence in the allowance, it is sufficient. The plaintiff has never collected this item, and she might well have objected to the allowance, but as she has acquiesced in the ruling of the referee, the ruling will stand and the judgment of the circuit court on the ruling was a transference of the title in that fund to the plaintiff.
The defendant’s attitude or attitudes in reference to this item are not consistent. In his answer he pleads
(b). Just before this suit, was commenced the defendant claims to have invested $5,000 for the plaintiff in the purchase of 50 shares of the Andes Mining Company, a corporation of which he had beén president. The only property that corporation ever had was an undeveloped mining property in- South America. The evidence shows that at the' time of the alleged “investment” the corporation was entirely insolvent and, as the referee found, the stock was “a liability rather than an- asset.” This was said in allusion to the condition of the company’s affairs as
(c). The referee in his report says: “The defendant also claims a credit of $12,000, the alleged value of an equity in two houses and lots on Westminster Place transferred to the plaintiff by one Hen
The testimony shows that after the plaintiff’s case was in the hands of her attorneys and the suit was either already begun or was imminent the defendant offered to the plaintiff deeds to these two Westminster Place houses. This occurred in the office of plaintiff’s attorney and defendant testified that he handed the deeds either to Mrs. Pullis or to Judge Rassieur, her attorney, he did not quite remember which. Judge Rassieur testified that when the deeds were offered he agreed to accept them for Mrs. Pullis provided after examination he found the title to be satisfactory; that he afterwards made the examinations and was not satisfied with the title 'and refused to accept the deeds, he tendered them back to defendant who refused to take them, tendered them also in plaintiff’s reply and at the trial. We will refer to the evidence on this point again when we come to consider some objections offered to it by defendant at the trial. We are satisfied the referee did not err in refusing to give defendant credit for those houses in the account.
(d). Appellant assigns as error the refusal of the referee to allow Mm $1,000 credit for rent of a place in the country called the O’Day Place. There
(e) Defendant insists that the referee should have allowed him $2,800' credit for premiums he had paid on the life insurance policies during the lifetime of the plaintiff’s husband, whereas the referee allowed him only $1,400 on that account..
The evidence shows that the plaintiff’s husband was a man of business affairs and reputed wealth. While he lived he provided for his family and there *was but little if any occasion for Mrs. Pullis to draw on the Jason Crawford legacy fund then in the hands of the defendant. She testified that in addition to the fund in the defendant’s hand she had from another source an income of $40 a month. But the testimony of defendant shows that he did pay some of the premiums on these policies, that he did so at, the request of Mr. Pullis, and did not mention the fact to Mrs. Pullis because Mr. Pullis had requested him not to do so, and defendant’s testimony also shows that he took Mr. Pullis’s notes for the premiums so paid, two of which notes covering the last two largest premiums were produced in evidence attached to the receipts. As the payment of these premiums was a matter between Mr. Pullis and the' defendant concerning which Mrs. Pullis was purposely not informed, the only evidence in relation to them available at the trial was that of the defendant himself. The receipts from the insurance companies were all made in the name of Mr. Pullis and the evidence shows that when the policies were delivered to the defendant for collection after the death of Mr. Pullis many of the receipts were fold
The only premium ,paid by defendant that the evidence shows that the plaintiff had any information about was one paid in the last year of her husband’s life, which she testified her husband asked her to allow the defendant to pay out of the Jason Crawford legacy and she consented; that premium, she testified, was about $1,400; on proof at the trial it was shown to be $1,381.83. The referee gave the defendant credit for $1,400 on that account, which was fully as much as the defendant’s own evidence showed that he had any reason to claim and really that much more than in strict legal right he was entitled to, because the preponderance of the evidence indicates that defendant had already taken credit in the “red book” for all the premiums that he had paid, together with doctors’ bills and funeral expenses and other expenses incident to the last illness of Mr. Pullis, which were proper charges against the estate of plaintiff’s husband and not against her. But defendant insists that the plaintiff in her petition admits that he is entitled to two items of $1,400 each on this account. The clause in the petition on which this claim is founded is in the paragraph relating to the loan of the Jason Crawford legacy and is as follows: “Plaintiff states that in the year.1893, the defendant paid about fourteen hundred dollars at plaintiff’s request on account of said loan, and in the year 1894 defendant paid the further sum of about fourteen hundred dollars at plaintiff’s request on account of said loan.” The petition does not say
(f). Defendant paid the rent on the house in which the plaintiff was living at the time of her husband’s death and has charged that as cash paid her in his account. The referee hás allowed that item. Defendant had three vacant houses, two of which were in Westminster Place, and the other on Washington Avenue, all of which he desired to sell. In July, 1895, plaintiff moved into one of the Westminster Place houses with the agreement, as she testified, that she would take care of the houses, show them to prospective buyers, and assist in the effort to sell them. Nothing was said about rent at that time, but after one of the houses was sold and the one adjoining the house in which she was living was rented, she told the de
III. In addition to the items above discussed the defendant has filed as *‘Exhibit A” to his answer a list of over three hundred items which he claims as credits and which aggregate $28,611.27 and which if added to the items already discussed and claimed by him would make a total of $56,811.27.
We do not consider it necessary to discuss and set out in this opinion the evidence bearing on each of those three hundred items. Some the referee has allowed and some he has not allowed; we have read all the evidence shown in the two abstracts bearing on the alleged payments and we find no fault with the referee’s finding. The only specific complaint appellant now makes in reference to those three hundred items is that the referee does not make a separate finding on each of them. Appellant in his brief says he cannot know from the report which items were allowed and which were not allowed. The referee was not required to make a separate finding on each of those items, they were not set out in the pleadings in such a manner as to call for a separate finding as to each item. On
Appellant relies on State ex rel. v. Peterson, 142 Mo. 526, to sustain his demand for a finding on each item; but that case does not sustain that contention. That was a suit on an official bond and there were a large number of counts in the petition, the only thing the court decided on this question was that there should have been a finding on each count. The court said: “When several distinct causes of action are stated, the same reasons for separate findings would seem to apply to a referee as to the verdict of a jury.” There the court likens the finding of a referee to the verdict of a jury; suppose a plaintiff should sue in one count on an account for goods sold from time to time, run
Defendant testified that he never kept an account of the items of moneys paid out by him to the plaintiff or to her children, he only had loose receipts or memoranda which did not include all, and for the rest he relied on his memory, for a large number of the items claimed, he had nothing to show. He testified: “I did not keep any system of accounts at all; as the drafts or requests would come in I would either give the money from my pocket or go down to the cashier of the Missouri Class Company and get the cash from my account there for her. Q. Did you keep any system of books in connection with this fund? A. No, I did not.” This was the business conduct of a man of experience in business affairs, who was at the time the president of a large mercantile corporation. According to his testimony the only account that would show any of the items of this business was his own personal account in the books of the Missouri Class Company. He was asked to obtain a copy of that account from the books of the company and present it to the referee, but he never complied with the request. While testifying on this point he was asked by Judge Rassieur, the plaintiff’s attorney: “Will you give me authority to ask for a copy of that account [defendant’s account on the books of the Missouri Class Co.] from the time of the deposit of Mrs. Pullis’ money, and thus enable me to obtain such copy? A. No. There are different reasons for my refusal; in the first place I have no right to authorize that authority; the second, there is nothing in that account that will be of any utility to you in the world.” Defendant’s reliance to sustain his claim on every disputed item was his own uncorroborated testimony. If he had been an inexperienced man in business affairs, some excuse might have been indulged for this loose method of handling this business, but under the circumstances his method was not
IY. Appellant contends that the referee admitted illegal testimony.
It was in evidence that when the defendant handed the deeds to the Westminster houses to Mrs. Pullis or to Judge Rassieur (defendant did not quite remember which), Judge Rassieur told him he would take the deeds and hold them until he could examine the title and if satisfactory would accept them for the plaintiff. Judge Rassieur testified that on his investigation he found that the title to the property had recently been transferred by defendant to an insolvent brother-in-law of defendant for a nominal consideration, and that at the time of that transfer suits were pending against the defendant which soon thereafter ripened into judgments against him; that Judge Rassieur went to a title guarantee company to see if it would contract to guarantee the title but the company declined to do so, then he tendered the deeds back to defendant who refused to accept them.
In that connection the plaintiff also introduced in evidence a number of court records showing judgments against defendant and in connection with those records introduced a certified copy of the deed from defendant to his brother-in-law, for the purpose of showing the comparative dates of the deed and the judgments. The deeds that were offered by defendant to the plaintiff were the deeds of this brother-in-law of defendant. All that evidence went in over the defendant’s objection and he now insists that it was error. If the issue on trial had been the title to the property, the evidence, at least that part of it in which the witness stated the result of his investigation and his conference with the title examiners, and the title guarantee company, would have been incompetent. But that was not the
There was also evidence tending to show the financial condition of the Andes Mining Company, not only at the date of the alleged “investment” in 1898, but also down to the time it was brought to the plaintiff’s knowledge in 1900, the tendency being to show not only that the condition was bad in 1898, but that it grew worse as the time went on. The appellant contends that the showing should have been limited to. the date of the alleged investment. The defendant’s own
Y. One more point of appellant remains to be considered.
In his brief he complains that he has been charged •with compound interest, that the referee has erred in calculating interest, and in his method of calculating interest. It does not appear from the abstract that the question concerning compound interest was presented to the circuit court, at least not so in express terms. In his thirty-one exceptions to the referee’s report and thirty-two grounds in his motion for a new trial, no mention is made of compound interest. The nearest he came to raising that question in the circuit court was in Exceptions 6 and 7 which are also repeated in the motion for a new trial. Exception 6 is: “Referee has erred in all his calculations of interest.” That only means that the referee was at fault in his mathematics. Exception 7 is: “ The referee has erred in his method of calculation of interest, the same being contrary to the law of this State.” That only refers to the method of calculation. That that was what the exception was designed to mean is shown by another paragraph in appellant’s brief, page 136, where it is said: “The error lies as shown, supra, in not calculating interest to date of first payment, deducting payment, calculating interest on remainder to date of next
Where there are mutual running accounts interest may be given on both sides until a balance is struck, but when the balance is struck, the interest runs only on the balance. When one makes a part payment on a debt he owes he is not entitled to have interest to run on the money he paid, in such case interest runs only on the balance due on the debt.
The referee did charge the defendant interest with annual rests, which constituted compound interest. If defendant should be taken at his own word, both in his pleading and his testimony, he would be liable, in the discretion of the trial court, to be charged with compound interest, because, according to his statements, this money was not loaned to him at all, but was placed in his hands by his confiding sister to be invested for her as in his judgment would be best for her and thereupon he immediately deposited it to his own credit and used it in his own business. The statute, section 3711, Revised Statutes 1899, which allows compound interest only on express written contract therefor, does not apply to the accounting of a derelict trustee. [Cruce v. Cruce, 81 Mo. 676; Bobb v. Bobb, 89 Mo. 411; In re Murdoch & Dickson, 129 Mo. 488.]
But the plaintiff can recover only on the case made by her own pleading and proof, not that made by her adversary. And although the point was not raised .in the circuit court yet as it is an error appearing on the face of the record it should be corrected here; but the correction should not be made at the cost of the plain
The correct method of counting interest in case of partial payments is stated in Riney v. Hill, 14 Mo. 500, as counsel for appellant rightly contends. The rule as there stated has been frequently referred to and approved by this court; it is this: ‘ ‘ Interest is first to be calculated on a demand up to the first partial payment —then add the interest to the principal and deduct the payment therefrom, then cast interest on the remainder to the second payment, add the interest to the remainder and deduct therefrom the second payment, and so on until the last partial payment, unless in any case the interest up to any payment shall exceed the payment, in which case such payment is to be deducted from the interest; and the excess of the interest is to be carried forward, without casting interest thereon, to the next payment that will discharge the excess.”
Appellant also contends that the referee should have calculated the interest up to the date of each payment instead of adding together at the end of the year all the payments made at different dates in the course of the year and casting the interest to that date. Although that method would have given the referee a long and wearisome task yet in strictness it is the method he ought to have pursued. And since the account as stated by the referee does not give the several items and respective dates, but gives the aggregate of all the items paid during the year, there is no other way to correct the error except to give the defendant credit as if he had made all the payments on the first day of January of the year in which they were paid; by so stating the account the defendant would gain more than if the method of calculating the interest up to the date of each item as contended for by him had been strictly
Calculating the interest by the method above quoted from Riney v. Hill, 14 Mo. 500, and giving the defendant credit on the first day of January of each year for all the payments thereafter made by him during that year, the true balance due the plaintiff from defendant at the date of the referee’s report, January 15,1906, is $33,518.63, instead of $35,167.98. We therefore deduct the excess of interest, $1,649.35, from the balance shown by the referee’s report, leaving the correct balance $33,518.63, for which sum with interest at six per cent per annum from January 15, 1906, the judgment is affirmed.