34 Mo. App. 189 | Mo. Ct. App. | 1889
delivered the opinion of the court.
This action is brought on the bond of James Cummiskey, as a special commissioner in partition, to recover the sum of one hundred and forty-five dollars alleged to have been received by the principal defendant in the character named, as the distributive share of the plaintiff, Frances Fenlon, and not paid over to her. The answer admits the preliminary allegations of the petition about the partition and admits that, by the decree in partition, Mrs. Fenlon was entitled to seven hundred and ninety-six dollars, out of the proceeds of the sale of the real estate by the special commissioner; but denies that he has failed or refused to account for or pay over to her the sum of one hundred and forty-five dollars and denies that this or any other sum is due to her. It then sets up that, on the twenty-first day of July, 1885, the defendant Cummiskey, as special commissioner in partition, appointed by the circuit court, paid to Mrs. Fenlon the sum of six hundred and fifty-one dollars, being the balance due and owing to her of her distributive share of $796.01 in the hands of the said commissioner. It sets up that the sum of twenty dollars had, before that time, been paid, on her order and by her request, to William S. Stewart, her attorney of record in the partition suit, on account of his services in the said cause; and that the sum of one hundred and twenty-five dollars had been paid by the commissioner to William McCully, on account of the written order of Mrs Fenlon, which alleged order was filed as an exhibit to the petition.
The three sums above named, it will be perceived, amount to the sum of seven hundred and ninety-six dollars (saving one cent, which may be disregarded), which is admitted to have been the total amount of Mrs. Fenlon’s share of the proceeds of the sale for partition.
I. Upon the first issue, whether Mr. Cummiskey had paid twenty dollars to Mr. Stewart on the order or at the request of Mrs. Fenlon, it is to be observed that no evidence was adduced showing any such order or request, but the evidence of Mr. Cummiskey himself shows that there was no such order or request. He testified; “The payment I made to Mr. Stewart was previous to the confirmation by the court; the payment was made out of courtesy — that is all; it was a request on his part.” The circumstances that Mr. Stewart may have been the authorized attorney of record of Mrs. Fenlon (which she denies) is quite immaterial, since Mr. Cummiskey had no authority to disburse her money in his hands as trustee for her, in the payment of any debts due by her, albeit to her attorney in the case. The circuit court was therefore in the right in directing the jury to find for the relators as to this item, and this item may accordingly be laid out of view.
II. As to the second item, the paper referred to in the answer as containing the written order of Mrs. Fenlon to pay one hundred and twenty-five dollars to William McCully, was not a written order directed to Mr. Cummiskey at all, but was a paper directed to the judge of the circuit court and signed by four of the parties to the partition proceeding, requesting the court to make an order for the payment, among others, of the
“Received, July 21, 1885, of James Cummiskey, $625.00, being amounts due on foregoing instrument, as thereupon appears, to-wit: •
Mary Ann Kilpatrick................. $375.00
Sallie Kilpatrick...................... 125.00
Nancy Kilpatrick.................... 125.00
$650.00
“William McCully.”
“Received, Aug. 27, 1885, of James Cummiskey, $125.00, being amount due from Frances Fenlon, on foregoing instrument.
“ William McCully.”
It is to be observed that this instrument is not directed to Mr. Cummiskey, and is not an order to him by Mrs. Fenlon to pay over any money to Mr. McCully on her behalf. It is further to be said that no order was ever made by the circuit court, as requested in this instrument. Nevertheless, Mr. Cummiskey assumed,
“ Received of James Cummiskey, special commissioner in partition, case of Mary A. Reed and John Reed v. Mary Ann Kilpatrick, and numbered 66418, Room 5, this twenty-first day of July, 1885, seven hundred and ninety-six and dollars, being in full of my distributive share in the above entitled cause.
“$796.01.”
“The above receipt must be signed as indicated, attested by one witness, and delivery can then be made of $651.00. Failure to obtain'the signatures as shown will require the return of the $651.00 to the undersigned.
“ July 22, 1885.
“ James Cummiskey,
. “ Special Commissioner, 617 Chestnut St.”
“ Please have receipt signed as instructed, collect all charges from John W. Fenlon, and deliver money to him.”
This paper, together with the six hundred and fifty-one dollars, was tendered by the express agent to Mrs. Fenlon and her husband, and on their signing it (Mr.
To make this transaction clearer, it should be observed that when Mr. Cummiskey transmitted this money to Providence by express with this conditional receipt, he also wrote and mailed from St. Louis to Mrs. Fenlon, at Providence, the following letter: “July 24, 1885. Mrs. Fenlon — Madam: I sent you yesterday per Adams express Company, six hundred and fifty-one dollars, being your proportion of the proceeds of sale of property. If the deductions of twenty dollars and one hundred and twenty-five dollars be not correct, and you and your husband decline to sign the receipt as presented, the, Adams Express Company will return the amount. The deduction of one hundred and twenty-five dollars is made in accordance with an agreement signed by you, your mother and two sisters, with Mr. McCully. I have settled with your mother and sisters as above. Respectfully, James Cummiskey.”
The evidence on behalf of the relators is to the effect that the receipt which was tendered by the express company and which was signed and returned, was signed under protest. There was considerable other evidence as to what was said at the time of the signing of it, but it is sufficient to let it rest with this statement.
We need not go into the testimony further with regard to the item of one hundred and twenty-five dollars. It is to be kept in mind that the paper, marked exhibit A., being a request to the court to order the sheriff, or whoever might be the custodian of the proceeds of the sale in partition, to pay over the sums named to McCully, and never having been acted upon by the court, is to be regarded as an abortive paper ; and, as it was not addressed to Mr. Cummiskey, it conferred no authority on him whatever to pay the sum of one hundred and twenty-five dollars out of Mrs. Fenlon’s distributive share to Mr. McCully.
Then, as to the effect of the express company’s receipt. The case has been argued before us orally and in writing, at great length, on the theory that the signing of the receipt in the hands of the express agent, when the six hundred and fifty-one dollars was paid over to her, was tantamount to an authorization to Cummiskey to pay over the one hundred and twenty-five dollars to McCully, and tantamount to a ratification of his payment of the twenty dollars to Stewart. In our opinion no such effect can be ascribed to the paper. A receipt for money is one of the least conclusive instruments of writing of which the law takes notice. It can always be contradicted or explained by parol. This was merely a receipt for money, and, in the absence of any extrinsic facts characterizing the transaction, it did not conclude Mrs. Fenlon from showing that the sum therein described to have been received had not actually been received by
But as to this larger sum of $796.01, it may be said with equal confidence, on the facts established by this record, that there was nothing whatever to compromise. There is no evidence that Mrs. Fenlon had, prior to the time when this receipt was tendered to her by the express agent, ever authorized Mr. Cummiskey to pay
Giving the fullest possible effect to the signatures of Mrs. Fenlon and her husband upon the receipt which was returned to Mr. Cummiskey by the express company, it does not help out this defense ; for on the day following that on which she signed this receipt, she mailed to him the letter of July 29, and his testimony concedes that this letter and this receipt were received by him contemporaneously, — that is, on his return from his trip out of the city the letter of Mrs. Fenlon was among his mail, and he himself went to the express office and there - obtained the receipt. The mere fact that he may, on the faith of the receipt, have paid over the money to Mr. McCully, in ignorance of the letter, if it were a fact (which the jury probably did not believe) would not help out his defense. The letter was a distinct notice to him not to pay the money over; and having received this notice before he paid the money over, it does not lie in his mouth to say that he had not
In a record presenting such a state of facts and exhibiting no dispute as to any fact which is essential to tbe determination of the rights of tbe parties, our duty is discharged when we see that tbe verdict and judgment which were rendered in tbe trial court applied tbe law to tbe undisputed facts. It is not necessary that we should scrutinize tbe instructions or scan tbe intermediate rulings, the trial appearing to have been in all respects a fair one.
The judgment is accordingly affirmed.