238 Mo. 81 | Mo. | 1911
Plaintiff sues in equity, the general object and nature of his bill is to set aside and annul a so-called “receipt or release” given by Bessie M. Taylor, executrix of W. J. Taylor’s will, to the firm of Spencer and Dennison, to declare the same null and void because of fraud and to have an accounting.
At the close of plaintiff’s case defendants demur to the evidence, the same is sustained, the court orders plaintiff’s bill dismissed (which is done) and he comes up by appeal.
There are three questions here, viz.:
First. Is a demurrer to the evidence in the line of allowable procedure in equity cases?
Second. If so, must the party cast on such demurrer save an exception below to the ruling thereon in order to have a review of the merits on appeal?
Third. If there-be no such exception saved in the bill of exceptions and if no such exception is necessary then was the bill well dismissed? (and herein of the merits).
A short history of the case is not amiss. The record shows that in September, 1903] and prior thereto, William J. Taylor and John F. Wright were dealing in “puts” and “calls” as partners in the grain commission business in Chicago. They were members of the board of trade. At thát same time Corwin H.
In consideration of tlie sum of $13,910.96, this day paid tome, Bessie Taylor, executrix of the will of William J. Taylor, deceased, and widow of said deceased, by Spencer & Denniston, a firm composed of Corwin H. Spencer and Uriah R. Denniston, I, the said Bessie Taylor, executrix of said will, do hereby sell, assign and transfer to said firm of Spencer & Denniston the three accounts, hereto attached, and all of the right, title and interest of the estate of said William J. Taylor, deceased, and of myself as the executrix of said will and as widow of said deceased, therein, the first of said accounts marked Exhibit A, containing a statement of certain closed trades in grain in which said William J. Taylor’s estate, said Denniston and William H. Martin are interested; the second of said accounts marked Exhibit B, containing a statement of certain open trades in grain in which said William J. Taylor’s estate, said Denniston and said Martin are interested, and the third of said accounts marked Exhibit C, containing a statement of certain open trades in grain in which said William J. Taylor’s estate and said Martin are interested.
This assignment is made pursuant to an order of the probate court of Cook county, and the purpose of it is to transfer absolutely to said Spencer & Denniston the said accounts and all moneys that are due or may grow due thereon or out of .the transactions therein. referred to, and to confer upon the said*90 firm of Spencer & Denniston tile entire property in and to said accounts and moneys and the proceeds and avails thereof.
Witness my hand and seal this 11th day of November, A. D. 1903.
(Seal) Bessie Tayloe,
Executrix.
The sale was afterwards duly approved by the said probate court, and the money received was distributed among the creditors.
Presently Mrs. Taylor made settlement and resigned as executrix and John F. ‘Wright, said former partner of Taylor, was appointed administrator, d. b. n., g. t. a. Afterwards he settled as such administrator and was discharged. Afterwards he procured his discharge to be set aside and the administration was reopened by an order of said probate court. This was in 1905. Afterwards ancillary administration was begun in the city of St. Louis, and plaintiff, as public administrator of that city, was put in charge. Thereupon (Spencer having departed this life, and defendants being executors of his will) he instituted this suit against them on the theory that Taylor owned the entire interest in account “35” involving the purchase in one market and the sale in the other of 500,000 bushels of grain. That his profits in that deal on the 11th of November, 1903, were about three times what his executrix received, that his executrix was deceived into making the settlement and transfer by false and fraudulent concealments and representations of said Denniston, which said representations were made and procured to be made, for the very purpose of misleading her into believing the profits belonged partly to Martin, Denniston and Taylor, and partly to Martin and Taylor, instead of wholly to Taylor, as the very fact was. It is charged that these representations were made by her husband’s brokers knowing them to be false, that they were made to. be relied and acted on by executrix, that they were relied and acted upon
To that bill defendants' answered with a wealth of averment, but as the defense was not reached at the trial, other than as it appeared by the admissions of the pleadings and by plaintiff’s own showing, it will not be necessary to burden the opinion with the allegations of that voluminous pleading. Suffice it to say it denied the fraud, admitted the settlement, its authorization and approval by the probate court, alleged good faith, truthful and full disclosures, pleaded payment of more than was due, etc., and made a full showing of the condition of the account, as appearing on the books of Spencer and Denniston.
The foregoing is a sufficient statement of the facts uncovered at the trial and of the scope of the pleadings. To it we may add that the bill of exceptions shows that plaintiff saved no exception to the ruling on defendants ’ demurrer to the evidence. In his timely and unsuccessful motion for a new trial he challenged defendants ’ right to a demurrer in an equity case, and, as another ground for a new trial, asserted that under the pleadings and proof, the decree should have been for. plaintiff and that the bill was improvidently dismissed.
If there be other record facts helpful in determining questions raised, they will appear in the course of the opinion.
I. It is asserted by plaintiff’s counsel that a demurrer to the evidence is unknown to equity trials. They cite no authority to the proposition in their brief and none in their printed argument, but put the mat
(a) In the first place instructions of any character are out of place in an equity suit. At very bottom and root an instruction is but advice to a jury, or to the court sitting as the jury. In a law case, tried without the help of a jury, instructions fill the useful office of showing on what theory of law the case was tried. In a law case, tried with the help of a jury, instructions fill the essential office of telling the triers of fact what principles of law are applicable under .the pleadings to the facts found by them to exist. But in equity the scene shifts and another condition springs. In an equity case for the chancellor to give instructions is but for him to give advice to himself — he merely talks the matter over with himself and tells himself how to do. Now as a case in equity on appeal is heard ele novo (barring a certain preference allowed by the upper to the lower court in weighing oral testimony and tagging it with a credit value) it is a mat
A fortiori, if the chancellor (absent a jury) give instructions to himself, and they are wrong, error cannot be predicated of the giving of them, because he can still go on and decide the case right. On the other hand, if the instructions be good, and the decision bad, it ought not to stand on appeal. It follows that instructions in an equity case amount to nothing. ' So, the mere action of the chancellor in giving or refusing them likewise amounts to nothing. If that be so, then an exception to the action of the chancellor in giving an instruction in the nature of a demurrer to the evidence in an equity case amounts to nothing.
Hence the general rule is, that error (so called) in giving or refusing instructions in an equity case is no error at all; for such instructions, or such exception to them, will not he considered on appeal. [Wendover v. Baker, 121 Mo. 273; McCollum v. Boughton, 132 Mo. 601; Hall v. Harris, supra; Shaffer v. Detie, supra; Conran v. Sellew, 28 Mo. 320; Ellis v. Kreutzinger, 31 Mo. 432.]
A demurrer to the evidence being akin to a peremptory instruction, or an instruction, in the nature of a demurrer, comes, .we think, within the reason of the foregoing rule. It fills no such office in an equity case that error can be predicated on the mere giving or refusing of it. The court’s action stands in the nature of a finding of facts, and the reversible error, if any, lurks in the judgment itself.
(b) In the second place (and heading to the same conclusion just announced) in some instances demurrers to evidence have been assigned an office by appellate courts, yet it will be found to be that of a mere convenience; that they in effect always cut behind the demurrer, as a demurrer, search the record on the merits and sustain or reverse the judgment because the judgment itself did or did not do equity.
In other cases demurrers to the evidence in equity cases have been held to be “novel” or “anomalous” and out of place. For example: Baker v. Satterfield, 43 Mo. App. l. c. 594, was in equity. In that case defendants interposed a demurrer to the evidence which was sustained over plaintiff’s objection. On appeal time was spent in argument in charging error to that ruling. In reply to that contention, that court said: “If this was an ordinary action at law, then there would be some point in this contention. But, since it is a suit in equity, a demurrer to the evidence is improper. Instructions in such a case are entirely
In Leeper v. Bates, 85 Mo. 226, at the instance of defendant the court sustained a demurrer to the evidence, and following that dismissed the bill. On such phase of the case the court said: “In equity proceedings, a demurrer to the evidence is, perhaps, novel. But if the petitioner makes no case, the chancellor need not call upon the other side for a showing; he may at once dismiss the bill. And sustaining a demurrer to the, evidence may not, under our practice, be an objectionable method of doing this. But this appeal depends upon another question.” Thereat the court passed from the demurrer to the merits.
In Healey v. Simpson, 113 Mo. l. c. 345, a demurrer was sustained to the evidence in an equity case. In speaking to that point this court said: “It is difficult to perceive what office a demurrer to the evidence in an equity case performs.” IVe then went on to treat the case as disposed of on its merits, and because the court improperly dismissed the bill, following its ruling on the demurrer, the judgment was reversed.
Anthony v. Building Co., 188 Mo. 704, was an equity case in which the court sustained a demurrer to the evidence, but it was held on the record here that the judgment entry (which by the way, is the same entry we are dealing with in this case, viz., “Demurrer to the evidence is sustained and the bill dismissed”) meant no more than that on the evidence the bill was dismissed for want of equity in the case.. In that case, there was a colloquy between court and counsel, preserved in the bill of exceptions, shoAving the court construed his judgment to mean that the bill was dismissed on its merits. In the instant case the court put a like construction on the judgment by a narration in the bill of exceptions, as follows: ‘ ‘ Thereupon the
Bank v. Simpson, 152 Mo. 638, an equity case, rode off on a demurrer to the evidence. The question of practice was not discussed, but a close gloss shows that we considered a dismissal of the bill below, following the chancellor’s ruling on the demurrer, was equivalent to a finding on the facts, and that the bill was dismissed for want of equity.
In Hiss v. Hiss, 228 Ill. l. c. 421, it was ruled that: ‘ ‘ Where issues of fact in a chancery ease are tried by the chancellor, the parties not being entitled to a trial by a jury as a matter of right, a demurrer to complainant’s evidence is anomalous to the practice. . . . The demurrer of that character interposed in this case should not have received the consideration of the court.” Thereat, putting aside the demurrer, the court took up the question whether the case made on plaintiff’s evidence had equity in it. The pronouncement of the Hiss ease is incorporated in the test of 38 Cyc., p. 1945.
In the foregoing view of it, the same conclusion follows announced in subdivision “a” of this paragraph of. the opinion, namely, that on appeal the demurrer is immaterial, hence the exception thereto is immaterial, where the judgment itself is assailed as without equity.
The sum of the whole matter is this: While in some cases we have considered demurrers to the evidence- in equity cases and have ruled on exceptions saved to giving them, yet such demurrers and sucii exceptions are not vital to a consideration of the merits (where the merits are here on another exception) and; when we have thus considered them, we have put the matter on the foot of a finding of facts below
II. The next question is this: Is the case here on its merits? We hold it is. The record shows that in due time plaintiff filed a motion for new trial. In that motion- he challenged the judgment, in that it was for the wrong party, was inequitable and contrary to the evidence. His motion was overruled and he saved an exception. In this condition of things, we rule that motion and exception bring the case here upon its merits in spite of the fact that a demurrer to the evidence was sustained below and no exception was saved thereto. This ruling inevitably follows as a sequence from the rulings made in subdivisions “a” and “b” in the first paragraph of this opinion. We are glad-to reach such conclusion, on -the reason of the thing, on an interesting question of equity practice. It accords with the equity maxims: Equity looks to substance, not form. Equity proceeds in accordance with what is good and right (ex aequo et bono).
Indeed, conscience and the very merits of a matter are inseparably joined by the eternal verities, the nature of things, and in administering equity, pure and undefiled, we may adopt as a cardinal rule the commandment of the marriage ritual, viz.: Whom God hath joined together, let no man put asunder. And to prevent that untoward result, the saying of Philips, Com’r, in Noble v. Blont, 77 Mo. l. c. 239, anent the conservatism of our courts which “would not sacrifice the ends of justice upon the sharp edge of technicality,” is apposite.
The premises considered, the point of respondents’ counsel, that the merits are not here for review, is disallowed.
III. Of the merits. The facts sufficiently appear in the forepart of this opinion. Rescission is asked
As I see it, the case is without equity. Because: False representations were the pegs on which the pleader hung his fraud. Without such there was no fraud. Without fraud there was no right to rescission. Without the right to rescission there was no right to an accounting, and no case. Now, no witness testified to any false representations or deception, or to any facts from which they could he inferred. There was no documentary testimony tending to show such. There was not a-scintilla or iota of testimony that Taylor owned an interest in account “35” save what the books of Spencer and Denniston showed he owned. There was not a line, scrap, patch or shred of memoranda tending to show any such ownership. There was no proof of any fraudulent concealments. The personal representative of the estate had access to the brokers’ books. Those books told their own story to the experts assisting the executrix and her attorney. Conceding, for the purposes of the casé, that the representations of Denniston, the books and bookkeeper were relied on, yet there is nothing to show them jointly or severally unworthy of reliance. At the trial plaintiff had the same information the executrix had nearly five years before when she took $14,000 of Spencer and Denniston’s money and made the transfer, and not a whit more. Armed with that information and the advice of her learned counsel and expert
It is argued, as we grasp it, that the books of Spencer and Denniston were partly in ink and partly in pencil, that such fact threw a suspicion on the integrity of those books and calls for explanation. But if that be a suspicious circumstance the executrix was not deceived thereby. She saw that condition at the outset, and long before she made her adjustment. Now, knowledge prevents deception. It cures the ills of deception; for he who knoias all cannot be deceived.
Moreover, a question about those entries arose on those books before the settlement and transfer. The executrix wanted to know whether the entries, tending to show that Mr. Taylor was a joint owner in the account instead of the whole owner, were made on the dates set down and cotemporaneously with the thing itself, or were made at a later time. She was curious in that behalf. She took time to consider. She called for and got an affidavit of the bookkeeper, and on the showing made by him, on her own investigation, on representations by Dennistoii, on the state of the books, on the advice of counsel and expert friends, she rested satisfied. She went further. Out of .abundant caution, she got the probate court’s authority to settle, and pursued it. Years afterwards, when one of her husband’s brokers had died, the estate put a' new hand at the bellows and goes into court of equity’ through a. new administrator and seeks to rescind the settlement and transfer. On new facts, or on a new discovery? Not at all — on the same old representations, the same ancient investigations, the same old books and on a state of things in all respects precisely as things were when the estate negotiated, settled, re
Another theory of appellant’s learned counsel seems to be that the possession by Taylor of the cards issued by the brokers made a prima facie showing in his favor that he owned the whole of account “35.” That those cards in his possession raised a presumption he was such owner. On such premises, it is argued that plaintiff made a prima facie case of fraud in the settlement. But we see nothing warranting us in making any such presumption of fact or in our allowing such stress on a prima facie case of ownership, as would make the case break on that point. We have reached this conclusion because the cards, in and of themselves, are colorless and neutral on the fact of ownership and quantum of interest. They do not speak of this, that or the other interest in account “35'.” The mere possession of the cards is of little significance. At most they would furnish a clew leading up to a discovery of the fact's in the books and, disconnected from the books, the cards were no probative evidence of ownership. The fact is that cards bearing numerals were issued and received for the identical purpose of concealing the identity of the dealer. The fact also is that such cards were issued when several were dealing on joint account. Another fact is that the cards and the books must be taken together to interpret the cards and identify the owners of the account. As heretofore pointed out, things were arranged in that way designedly as a screen of concealment. Finally, if we allowed the possession of the cards to make a prima facie case of full ownership, yet such ownership
Something is made, in argument of the relations existing between a broker and his customer. . It is insisted that such relation is a confidential one, fiduciary in character, and that a broker carries the burden of showing that his dealings with his customer were fair. But does the broker not discharge that burden, when, as here, he makes settlement with his customer and enters into a solemn contract importing such settlement and transfer of the subject-matter of the account? If that were not so, then all plaintiff had to do in this case was to prove the relationship, prove dealings, prove the settlement and stop, for defendants thenceforth carried the burden of proof. In that theory the fraud, which is the gist of the action, would be presumed from the relationship of broker and customer and proof of dealings and settlement, and the burden of disproving fraud would be cast upon the broker. We cannot very well write the law that way. Contra, plaintiff pleaded, the fraud and carried the burden of proving it. He who alleges has the onus probandi.
The rule is that fraud is never conjectured. As an eagle does not catch flies, so equity deals not with mere trifles in a search for fraud. Small things may show it, if, when put together in their natural relation, they point indubitably to it. Fraud is never presumed except there be facts shown from which it can be inferred. It does not rest on mere suspicion. The precept is that one is not permitted to give weight to smoke, and suspicion is but smoke. He who asserts fraud, as said, must prove fraud. It may be difficult to prove, but that difficulty does not dispense with the necessity of the proof. There was once a rule in Venice that a charge, even if anonymous, placed in the
So far as we can see, account' “35,” worthless on the death of Taylor, became of some value on a favorable turn of market, and was transferred for full value to Spencer and Denniston on the 11th day of November, 1903, on full and truthful disclosures and on an exhibit of the books of the firm. So far as we can see., Spencer and Denniston were not obliged to close the account on that day; for, under the terms of the deals, the trades were open trades for future delivery. Whether on the contract day of delivery there would have been any profit in those deals is not disclosed. The trades were closed voluntarily on demand of the executrix. The settlement thus made is in nowise impugned by the testimony. Equity does not proceed in a revengeful or whimsical mood in ripping up executed contracts. Equity extends her right hand to the "deceived, and wronged. She desires above all things that they have restitution, but in our case the estate of Taylor was not wronged or deceived. And while “equity delights in a quick show of clean hands” (Per DeArmond, Com’r, in Leeper v. Bates, 85 Mo. 224) yet
The judgment below was right; accordingly it is affirmed.