*1 causing forth or occasioning in Plaintiff’s instructions” “the sudden danger.” emergency only negligence forth in “set Plain- negligence. tiff’s instructions” humanitarian Now appears, in order for be blameless in causing the defendant the emer- gency, negative negligence finding primary causing or-occa- sioning emergency danger” required. sudden or. “the should also be jury primary negligence If the instructed, so of defendant would put directly issue-in the trial of cause. the humanitarian negligence hypothesizes the instruction further driver of the Teague (Alice Teague) driving automobile automobile “at a high clearly speed.” Here it excessive rate is seen negligence of person, Teague, driving Alice third automobile high (bringing “at a speed” and excesseive rate of the plaintiff’s danger, ease) our is hypothesized husband into under the facts of as emergency position defendant, hypothesized the cause of the jury if, is authorized find defendants in view of the emer- gency was thereafter hypothesized, defendant Collier free of hu- jury negligence. manitarian Of course the understood hypothesized Teague negligence to find authorized of Alice to be they may though negligence even not have believed her decisive, giving have been the of the collision. We sole cause hold of In- prejudicially Number '7 D was struction erroneous.
Assigned urged by are errors in other instructions respondent as grounds granted. a new trial have been should questions.. review Counsel We will these have had benefit of study and, aiding to the end of of the briefs a trial court in submit- respects ting fairly again, in all issues should cause be tried may questions. obviate granting a be affirmed.
The order new trial should Bradley CG., and Dalton, It sois ordered. concur. foregoing opinion Osdol, C., PER CURIAM:—The is Van judges
adopted opinion of the court. All the concur. Lingle F. F. G. C. S. and Paul McGeehan, Finks, Winchell, H. officers directors and now
former trustees of the Brinker Savings Corporation, whose Company, hoff-Faris Trust expired forfeited, charter has Appellants, now v. I. E. and/or W. W. D. R. Commissioner of Gaskill, Harrison, (2d) Finance of Missouri. No. 39245. 190 of the State W. S. 266. One,
Division November *2 Crouch, Skelton, Johnson, Linton, Ralph P. Ike James R. Crouch & Johnson, Cowgill Popham, Lucas, & & Fane and Sam Mandell Graves appellants. Blackwell, Hall, Horace F. Elmer E. Sheppard H. E. and Wm. G. Boatright respondents. *3 surviving
DALTON, equity by officers and C. Action Savings Company, directors of the Brinkerhoff-Faris Trust been forfeited and whose assets and corporation, whose charter had of of the Finance Commissioner placed the hands affairs aside, ground liquidated by him, of Missouri and to set of of procurement, an the circuit court in its order and of Henry County, Missouri, -authorizing the commissioner finance Gaskill, one I. E. remaining corporation sell the assets of corporation. Plaintiffs purpose of the paying of the creditors trial relief. The court found sought accounting and other Plain- plaintiffs’ petition. the issues for defendants and dismissed appealed. tiffs have Savings Company,
The Brinkerhoff-Faris Trust and herein- corporation at bank, banking after as the was located referred to November, 1932 Clinton, County, bank Henry Missouri. The closed in reopen. were February 6, t© its affairs able liquidation commissioner placed in of finance for the hands Chapter 39, conformity I, 1939. W. W. Johnston with Art. R. S. deputy charge liquidation. appointed special of finance commissioner Wayman Gracey, employee bank, employed former Edith Cole and to assist him. The clerical work was done Loretta Wills. substantially
Among the bank was all of assets the closed This Company, subsidiary of the bank. stock the Benton Land company real estate loans. Notes secured handled and serviced lands sold eastern investors first deeds trust on Texas trust company commission notes second deeds of held secured commission, company same land. The collected interest on taxes, advanced funds for payment looked after the sometimes for the frequently took title purpose, looked after foreclosures liquidation After the bank was benefit itself and the note holders. Gracey Benton became officersand directors Cole secretary-treas- Company. president Johnston was Land organized Compaq*- Texas urer. the Benton Land handling Its was owned assist in in Texas. stock business to function corporations of these continued company. Missouri Both period liquidation court during the no orders of obtained and' business. with reference to transaction of their proceedings the usual difficulties were not without closed bank. distribution assets of the in the collection and *4 had been By preferred 1937 the and secured creditors the close of paid depositors general paid in full and creditors. had 70% exceeding liquidation far continuing the bank was The cost of of-the commissioner the estate and the income from assets trust the bring the special deputy the to pressing of finance was commissioner liquidation early possible. to a close as as many signed petition requesting a depositors
On March “for least liquidation the at the of finance continue commissioner to theory liquidation was year if the perhaps longer,” a paid good hope depositors the be very “there is will continued realized, very substantial full, and, hope if even is not due paid.” the balance By can summer dividends be stockholders) liability (except had depositors other creditors to $44,000 deputy commissioner was special and the been reduced to enough pay remaining assets to negotiate sale of the trying to a bank in and other creditors of the full. depositors family, most of During members of Faris who owned 1938 the buying bank, became interested capital of the closed stock remaining assets of the bank same basis which July 6, subsequently sold. On 1938 a list of assets was obtained investigation and some stockholders was made. The interested stockholders, however, to necessary funds, and, were unable raise the attorney mildly addition, against advised purchase a ’ remaining September 8, On assets. commissioner of finance attorney urging wrote these stockholders toway that the ideal up close matters would be for the to pay depositors stockholders complete full and liquidation in the interest of all stockholders. Only however, action,
No taken. parties were found who two buying remaining indicated real interest in assets the bank.
They Koenig. were I. E. Gaskill L. and William offer best ob- Koenig, investigation tained from after and conferences, $25,000, might $35,000. but he go high Gaskill indicated that as September 26, 1938 the finance commissioner directed Johnston steps to “take bring immediate to to ... a close possible.” as soon as Gaskill was invited to meet with the- commis- Clinton, sioner of finance parties' Missouri, interested at other Representatives depositors on October of stockholders, and' meeting. buy remaining others attended the Gaskill offered to pay required depositors assets the bank and the amount pay liquidation. full and final accepted. costs of A offer was prepared contract was Gaskill and Commissioner Holt, subject approval Finance circuit The con- court. provided warranty guaranty tract the assets sold “without subject any kind and and all liens thereon and defenses against may be made the same.” petitioned court and order the circuit obtained the (now sought aside) approving set contract of sale. No objection interposed anyone proposed paid sale. Gaskill depositors remaining liquidation, the balance due and all cost $48,000. total of about making- buying remaining bank,
Prior assets and while investigation dealing of the value of these had Gaskill some Company. company with the Land Benton This title several including tracts of land in land as “Tract Texas, tract of known acquired subject 293.” this tract had been Title to first deed bank, trust held an eastern investor. Mr. Faris of -who original paper, had made the loan and sold the the lien written property, holder as “We title follows: have obtained to the loan; you, releasing your cost deed and without is in *5 get any- the name and if ever subsidiaries, of one of our times back thing for to place enough pay your principal’, like normal the should sell ’ ought enough pay and in for principal fact it to sell to and interest.?
There was further evidence the titles obtained the Benton Land' Company upon of their second deeds foreclosure of trust were not mutual, protection, but were held for the
treated as of in- company. The books the Benton Company vestors and the of Land did held, an estate, company the real so asset of the not show Company an only the stock in Benton Land was listed as asset of the closed bank. October, 1937 Johnston advised holder deed of of the first that, on #293 because oil excitement” in Stone-
trust tract of “some per for Texas, the land could be leased acre and County, $1.00 wall years. agreed per rental for five The lien holder to sub- $1.00 acre reserving and, thereafter, an lease, lien the lease ordinate his to oil owner, royalty was The funds to executed. received 1/8 delinquent applied payment taxes the land. On November to the of on 2, Spangler Henry County paid $166 of for a six months’ one principal for of .option purchase this of land amount tract buy Spangler first and interest secured deed trust. did not Thereafter, option property, option. nor to renew the exercise 1938, $10.00, paid, consideration Gaskill July, for recited basis, day option buy to-wit, on the granted was a 60 this same tract principal and interest the first deed of payment secured July 1938, option given 10th, July20th, on Whether was trust. this matter, gift options purchase but the sale disputed is a holders, Texas, upon payment amount due the lien lands px*aetice Company have a common the Benton Land seems to payment protect in its efforts to its easterxxinvestors to secure that, appears have part, loans laxxd for the most defaulted less the amount the liens. been Worth than 20, Company advised that an July 1938 the Benton Land adjoining good” been drilled on land “tract promising “oil well had telegram, saw but were not Both #293.” Johnston began Early oil this well particularly-impressed August, it. so. high percentage salt water and contixiued to do produce vicinity. Twenty been drilled in the same dry previously holes purchase and then option the laxxd Gaskill, however, exercised amount due. than settled with the lien holder less 50% interest in- Gaskill sold oxie-half September $4581.50, at royalties but the time reserved lease land. on the trial had been drilled no well Company Benton Land Spangler sued the On December “tract theory option purchase his #293” Spangler Depositioxxswere taken December been renewed. rexiewed; that he had been de- option had been contended that and Gaskill Gaskill; and that Johnston by pretended sale frauded option the said was whether raised partners. issue One that oil information obtained or after before granted to Gaskill that the The witnesses testified adjoining lands. had been found on vicinity. found oil had been notice given prior option was *6 599 any agreement. the secret and Gaskill denied existence of Johnston agreement. any knowledge also denied of such an Graeey and Cole attorney 18, stockholders, after read- January the ing depositions, complained the commissioner about these finance handling Company the assets of the Benton Land and stated the like things are certain that make it look Mr. Johnston that “there may purcháse assets in with Mr. of the of the trust.” Gaskill profit
In the view of evidence that Gaskill made from Company, affairs with the Benton Land of that com- transaction receipts pany fully investigated. A detailed statement of were 16, January 31, and disbursements between March 1933 and No prepared parties and submitted to in interest. evidence of stockholders, received representative was found. The who report, finance, and considered wrote the commissioner May anything seriously complain “we not find that did investigation charge made about.” An was also of the that Johnston any partners. and Cole Graeey and Gaskill were denied way any participation sharing any proceeds sale, knowledge such. the in- Spangler During was dismissed June suit
vestigation appeared that deed of suit, resulted from that required Company #293 Gaskill the Benton Land Gaskill for tract pay principal to assume and interest secured the deed of required was, thereupon, unpaid due pay Gaskill balance trust. holder. lien 16’, liquidation proceedings open were until June held parties give appellants oppor- full and all other interested tunity any investigation Nothing developed and make desired. liquidation discharged proceedings were closed. Johnston was and the Graeey the effect the fall of 1943 and Cole statements to depositions Spangler were false. parts -of their October, present 1943, the suit was instituted. It agreement with charged Gaskill to share that Johnston had secret the bank’s further profits in the obtained from the intimate, actual and alleged.that Johnston had assets. It assets; bank’s concerning value information accurate $150,000.00; worth such fact was known to assets misrepresented court; facts not to the that Johnston court, fraudulently concerning facts concealed the true prospects for near the Texas lands value of the said oil Gaskill; agreement of his existence unlawful approve the’sale reason plaintiffs the court induced to misrepresentations. The commis- false, and fraudulent willful and was join as a in the suit plaintiff finance refused sioner of made a defendant. A detailed statement of in support evidence the. existence of agreement alleged unduly would extend this opinion; it is suf-
ficient to say that, July testified 1938, Gaskill and Johnston entered agreement into written equally to divide resulting or losses the sale of assets which Gaskill *7 might purchase from the trust estate, agreed and that Johnston any profits divide his share of equally Gracey. Gracey testified paid that Johnston him profits $500 as his share of arising ' purchase Gaskill’s of tract #293. Miss Cole testified that she unsigned seen such an memorandum in written hand- Gaskill’s writing copied and that she had it Gracey. for Mr. A copy of alleged memorandum was offered in Houtchens, evidence. Delton one of the attorneys plaintiffs, for May testified that June, or Gracey employed him, contingent aon fee basis, to collect for him alleged under the contract; that he consulted and Johnston “stated that there had been such a time, contract entered into at one but that any himself money he had never received under that contract and that was later up”; torn and that Johnston later asked him what he would take forget all about the testimony matter. The of Gracey and Cole with alleged reference to the contract payment testimony alleged of Houtchens as to the admissions was denied by Johnston. Gaskill expressly also denied the existence of contract. In finding for respondents, the rejected trial court necessarily
testimony Gracey, of Cole and Houtchens. It is unnecessary, there- fore, to review the detailed facts in affecting credibility evidence say these witnesses further than to admitted that he had ease; intentionally falsely sworn Spangler and that Cole ad- mitted she knew that testimony Spangler her in the case was false deposition. before she
Substantially all appellants rely, except facts testimony the direct concerning the existence agreement, of said fully them, knowii to or their representatives, prior discharge to the special deputy commissioner and the final termination of the liquidation proceedings. correspondence between the com- missioner of finance and the attorney for the stockholders shows that June, in March attorney 1938 the was well aware of the fact that he and his believed clients the assets were worth much more than depositors. balance due considering stockholders were purchase very assets for reason, but they could raise necessary Liquidation funds. nearly had continued years, six cost continuing operation of the estate was in excess of the general income, opinion and it seems have been the that it was time was, course, to close the trust estate. There the usual difference buyers opinion but, between sellers value of the buyer willing pay more, sincé no could be found the assets were basis and the to be a fair and reasonable appeared what then sold for were closed. proceedings (2) (1) finding respondents; assign error Appellants evidence; (3) on the refusal of commission exclusion (1) Respondents contend witness. absent to take suit;' (2) this legal capacity to maintain have no appellants asserting ;(cid:127) claim of fraud guilty of laches appellants clear, convincing-; or cogent fraud- (3) evidence of was not that the refusing excluding did not err in evidence (4) court reached, will we have we conclusions commission. view legal capacity have assume, deciding, appellants will and that are not barred laches. We maintain the action presented. other issues determine the Wayman Graeey excluding err in evidence?
Did the court option purchase that, after Gaskill exercised the tract testified royalties a one-half #293 and after Gaskill had sold interest lease, paid (Graeey) currency $500 him under the % November, as his first of October made *8 Graeey paid he purchase. $400 further testified Gaskill on that Appellants a note. money Bank of Clinton on to Union State Emory Hurt, prove by President of the Union State offered to witness Graeey paid a note Bank, 1, 1938, $400 that on November off Appellants rely was currency. bank with The evidence excluded. Drug Co., 219 Mo. H. v. St. Louis on Charles Fuller Co. Wholesale Co., 535, 538; & App. 519, Peppas Mfg. v. H. Ehrlich Sons 282 S. W. McDowell, 825; (2d) 821, v. App. 71 S. W. State Mo. appellants 334, 342, aid be Mo. 1113. These cases do not S. W. material to the de in each case considered was cause the evidence Graeey case, an in the termination of issue while here fact note not currency paid had on a was $400 or he the same Graeey had received dispute. whether material or issue was currency paid to him under from Johnston and whether was agreement an assets sold to Gaskill. to share the of these matters Graeey evidence offered corroborate either did not properly and was excluded. take the testi refusing
Did err in a commission to the court mony Journey? appellants’ evidence, rebuttal of Kelso At close of Journey, appellants’ that Kelso witness counsel advised court counsel, negligence appellants absent or part admitting had while important become witness because Journey, prosecuting attorney he visited the Kelso office Journey alleged signed he contract. Coun denied that told he had Journey’s testimony impeach sel Johnston’s testi stated he wanted him he mony, testify Johnston admitted to Journey since would in exist contract was not contract, stated the “in the armed up. Journey ence and had been torn said to be forces off Georgia” the coast of commission was asked take his deposition, deposition part appellants’ included as evidence. The request was denied. It is that, conceded since appellants fully had been Journey’s advised as knowledge full ready absence when announced for trial. is suggestion anyone There no surprised by Johnston’s denial alleged-admission. -of the It is conceded that the matter was within the court’s discretion. appears. No abuse of that discretion
Was approving the order the contract of sale obtained by ex fraud? trinsic rule is equity “The well settled that a court of will judgment not interfere at law unless there fraud in the procurement judgment extrinsic or collateral to the matters upon judgment tried which the . was rendered. . . It is also well giving settled that false evidence held is be such fraud as will .to ’’ equity judgment. authorize Easterly, vacate Sutter v. 354 Mo. (2d) 189 S. W. “A judgment ground cannot be aside on set of fraud un is shown practiced very obtaining less it that fraud was in the act of judgment; judg fraud went to manner which procured operating upon ment was rather than pertaining matters judgment itself; that the prevented party the unsuccessful presenting or defense; his case or that the fraud otherwise went extrinsic, collateral acts or not before matters the court for examina tion or in the proceeding determination suit or in which the . . . proceeding was rendered. Such a used to cannot be obtain n hearing upon matters, a further or could have been brought defense, before the court to make a case or either because parties bearing found further evidence the truth falsity testimony there, neglected litigate because parties such grant original equity matters case. ‘Courts do not giving purpose party oppor relief the defeated a second *9 ” tunity to v. be heard the case.’ Hockenberry merits of the 31, Cooper 1031, County Bank, (2d) 338 Mo. 88 S. W. State 1036. upon application approval issues tried determined The and towit, appear judgment, of the sale from face “that Trust, creditors, said sale of assets is best interests of said its fair depositors, stockholders, and the same for a and rea- is value, highest by best and bid thereon obtainable sonable finance, employees.” agents, said commissioner his servants and finding approved. basis of chancellor On the the contract The retry issues which determined upon below was not called testimony, judgment. there more than false Unless mis- hearing in representation concealment evidence issues equity. ease, in that there can be no relief in cases judgment from is denied in of intrinsic “Equitable relief theory passed that an tried and fraud, issue which has been upon in original action be should not retried* in an action for against equitable judgment, relief and that litigation otherwise interminable; granted be would relief is for extrinsic fraud on the theory preventing reason of the a party fraud fully from ex- hibiting trying case, his there never has been a real contest before subject the court of the matter of action.” Jur., Judg- 31'Am.
ments, p. 655, See. agreement
The matter of a secret between Johnston and Gas- kill to share the a further bank’s and the matter of Johnston requesting approve the court a sale alleged partner, the bank’s assets to his were not tried or determined judgment sought always to be course, set aside. Of “it is position in fraudulent for one relationship of confidential with an persuade person, other to trusting counsel, in' his to make trans him, against action beneficial to person but the interest of the relying ’’ upon advice, fully disclosing his without all material facts. Hocken berry Cooper County Bank, supra, (88 v. (2d) 1031, 1036). State S. W. respects issue fraud mentioned the primary is matter for court. consideration of this upon credibility
We think cause turns Gracey, Cole weight testimony. and Houtchens and and value to be given to their true, many If testimony their is are then there facts and circumstances testimony evidence tend corroborate them. If false is wholly then other facts and in- circumstances evidence are finding Many, all, sufficient sustain a if appellants. of these quite facts and as circumstances are consistent with innocence and dealing dishonesty. fair case, the facts and appellants, circumstances relied of the oral aid mentioned, testimony wholly them, the witnesses or some of are justify equity granting insufficient to or authorize court of 263, (2d) requested. McCormick, relief Elliott Mo. 19 S. W. v. (2d) 654, 658; Sterling Shain, Mo. ex rel. v. S. W. State 1051; Schmidt, v. 349 Mo. 163 S. W. Terminal R. R. Ass’n. (2d) position trial chancellor a far better 774. The weight credibility determine the and the witnesses mentioned n given appellate to their than court. value tq finding. We defer Bradley Osdól, GO., Van concur. is affirmed. foregoing opinion by Dalton, adopted isC.,
PER CURIAM:—The judges opinion All of the court. concur. as the