White v. Scarritt

• Citation: 111 S.W.2d 18,341 Mo. 1004
• Parties: Grace B. White v. Wm. C. Scarritt, Appellant
• Decision Date: 14 December 1937
• Court: United States State Supreme Court of Missouri

111 S.W.2d 18

341 Mo. 1004

Grace B. White v. Wm. C. Scarritt, Appellant

Supreme Court of Missouri

December 14, 1937

Appeal from Jackson Circuit Court; Hon. Brown Harris Judge.

Affirmed.

Scarritt Jones & North, John M. Cleary, John T. Harding, W. W. Graves Edward S. North and Elliott H. Jones for appellant.

(1) The trial court erred in overruling the demurrer to the evidence requested by defendant Scarritt. (a) A suit to recover back money paid, that is, a suit "for money had and received," cannot be maintained against a party to whom plaintiff did not pay the money; and it appears, indisputably, that plaintiff here did not pay to defendant Scarritt the money in question, or any part of it, or any money. 48 C. J., p. 770; Roemer Comm. Co. v. Annan, 81 Mo.App. 572; Richardson v. Drug Co., 92 Mo.App. 515; Limited Inv. Assn. v. Glendale Inv. Assn., 99 Wis. 54, 74 N.W. 633; Great So. Acc. & Fid. Co. v. Guthrie, 13 Ga.App. 288, 79 S.E. 162; Pollak v. Staunton, 210 Cal. 656, 293 P. 26; Manahan v. Gibbons, 19 Johns. 109; Simmons v. Spencer, 9 F. 581; Shepardson v. Rowland, 28 Wis. 108; Mattlage v. Levi, 26 N.Y.S. 17. (b) Plaintiff so ratified the executory contract, claimed to have been executed under duress, as to make it a binding obligation. Bushnell v. Loomis, 234 Mo. 371; Brown v. Worthington, 162 Mo.App. 508; McCoy v. McMahon Const. Co., 216 S.W. 770; Long v. Internat. Vend. Machine, 158 Mo.App. 662; Farmers State Bank v. Day, 226 S.W. 595. (c) Plaintiff seeks to repudiate or rescind her contract without placing, or offering to place, the other party in statu quo, which is not permissible. State ex rel. v. Shain, 98 S.W.2d 597; Robinson v. Siple, 129 Mo. 208; Ebel v. Roller, 21 S.W.2d 214; Jarrett v. Morton, 44 Mo. 275; Feld v. Roanoke Inv. Co., 123 Mo. 603; Quigley v. Bartlett, 260 S.W. 494. (d) Plaintiff's evidence fails to establish the claim of duress. Tanner v. West, 99 S.W.2d 7; State ex rel. v. Shain, 98 S.W.2d 597; Wood v. Telephone Co., 223 Mo. 537; McCormick v. St. Louis, 166 Mo. 315; Dausch v. Crane, 109 Mo. 323; Morgan v. Joy, 121 Mo. 677; Pritchard v. Bank, 198 Mo.App. 597. (e) The duress asserted, if proved, affords no relief, since duress is asserted to have existed only at the time the agreement to pay was entered into, and not at the time payment was actually made. 48 C. J. 753; Brown v. Worthington, 152 Mo.App. 351. (2) The trial court erred in giving plaintiff's Instruction 1. Because there was no evidence whatsoever to support the following material matters set forth in that instruction as the basis of plaintiff's right of recovery: (a) "That the defendants expressed an intention and, in fact, intended to perfect an appeal from the judgment of the circuit court;" (b) "that the defendants announced that an appeal would be perfected and that the purpose of said appeal was for the purpose of harassing, annoying and vexing the plaintiff, and of compelling plaintiff to pay money;" (c) "that the County of Jackson thereafter through a regularly appointed commissioner evidenced its intention to exercise its right to purchase plaintiff's said real estate for the price and sum of $ 70,000;" (d) "that the McCoy Land Company and its president and attorney did not have good reason to believe that said suit in equity could be successfully maintained;" (e) "that the bill in equity filed by the defendant, McCoy Land Company, was not filed in good faith." "An instruction not based upon or authorized by the evidence is misleading, confusing, and erroneous." Gundelach v. Compagnie G. T., 41 S.W.2d 1; Althage v. People's Motorbus Co., 320 Mo. 598; Kuhlman v. W. L. T. Co., 307 Mo. 607. (3) The trial court erred in admitting the following evidence: (a) Testimony of Mr. Neel and of Mr. Huselton and of Mrs. White concerning statements and conversations by third persons, not in the presence of defendants; such statements being hearsay and not binding upon defendants. O'Neil v. Crane, 67 Mo. 250; St. Louis v. Arnot, 94 Mo. 275, 7 S.W. 15; Gordon v. Burris, 141 Mo. 602, 43 S.W. 642. (b) The testimony of Mrs. White as to Mr. Conrad's opinion as to whether or not McCoy Land Company could maintain its equity suit. (4) The matter of public policy, and the contravention thereof, is not an issue duly raised in this case, and may not properly be considered. It was improperly injected by the Court of Appeals. State ex rel. v. Muench, 217 Mo. 124; St. Louis Union Trust Co. v. Hill, 76 S.W.2d 685; Perkins v. Burks, 78 S.W.2d 845; In re Rahn, 316 Mo. 492; Denny v. Guyton, 327 Mo. 1048; State ex rel. v. Brown, 334 Mo. 788. (a) To hold that the agreement, by virtue of which the money was paid, was void as against public policy, would avail plaintiff nothing. If the money was not paid pursuant to a valid agreement it was paid voluntarily, and money voluntarily paid cannot be recovered. Ferguson v. Butler County, 297 Mo. 20; Wilkins v. Look, 246 S.W. 1000; Hethcock v. Crawford County, 200 Mo. 170.

Roy W. Rucker and Fred J. Wolfson for respondent.

(1) The judgment in respondent's favor should be affirmed. To permit appellants to retain the money paid by respondent is not only contrary to public policy but would violate the rule that a payment under legal duress may be recovered. Rees v. Schmits, 164 Ill.App. 250; Welch v. Beeching, 159 N.W. 486; 48 C. J. 741; 13 C. J. 409; Duke v. Force, 208 P. 67, 23 A. L. R. 1366; Brown v. Worthington, 162 Mo.App. 508; Lonergan v. Buford, 148 U.S. 581. (2) There was no merit in the petition for injunction. Willis v. Sedalia School Dist., 253 S.W. 741.

Gantt, J. Frank, P. J., and Hays, J., concur; Douglas, J., not sitting.

OPINION

GANTT

Action for duress. Judgment for plaintiff for $ 2688.87, which includes interest. Defendants appealed to the Kansas City Court of Appeals. In that court the judgment against the McCoy Land Company was affirmed, and the judgment against Wm. C. Scarritt was reversed. On rehearing, the judgment against Scarritt was affirmed. However, said court deemed its ruling against Scarritt in conflict with Kelley v. Osborn et al., 86 Mo.App. 239, and transferred the case to this court. Plaintiff died pending appeal, and the cause was revived in the name of Edwin C. White, executor of her estate.

After matters of inducement, the petition alleged as follows: "For her cause of action plaintiff states that on the 2nd day of December, 1931, she executed a written option to Harry S. Truman, as one of the judges of the County Court of Jackson County, Missouri, under the terms of which option she agreed to sell Lots 1109 and 1110 in Block 77 of McGee's Addition in Kansas City, Missouri, for the price and sum of $ 70,000.00. That it was understood between the parties at the time and was a matter of public knowledge that the county court was acquiring this property from plaintiff along with all the other property in said block for the purpose of erecting a new courthouse and jail thereon. That thereafter on January 9, 1932, the defendant, McCoy Land Company, acting by and through its president and attorney, William C. Scarritt, filed its bill in equity in the Circuit Court of Jackson County, Missouri, at Independence, seeking to enjoin Jackson County and the officers thereof from the sale of bonds which had been voted by the taxpayers to provide money for the erection of said new courthouse and jail.

"That when publicity was given to the fact the county court intended to purchase the block hereinbefore described for the purpose mentioned, plaintiff's tenants immediately vacated her property and the income from said property, from which plaintiff had been paying the taxes, insurance, and interest on the encumbrance, ceased. That all these facts were well known to the defendants and each of them.

"That the suit brought by the defendant, McCoy Land Company through its president and attorney, the defendant, William C. Scarritt, was not brought in good faith, but for the purpose of annoying, vexing, hindering and delaying plaintiff in the sale of her property to the county under said option and agreement to purchase. That defendants knew plaintiff was an aged woman dependent entirely for her livelihood upon the income from the property hereinabove described; that the property was heavily encumbered; that the interest on the incumbrance thereon was long past due, that the taxes were delinquent and that, if the sale under the option was delayed, plaintiff would lose her interest in said property by foreclosure. That after the demurrer to the petition of the McCoy Land Company had been sustained, said McCoy Land Company, acting through its president and attorney, William C. Scarritt, demanded that this plaintiff pay to the McCoy Land Company and to the said William C. Scarritt the sum of $ 2450.00, and announced that unless said payment so demanded was paid, an appeal would be taken from the judgment sustaining the demurrer to the petition of the defendant, McCoy Land Company, so that the sale to the county of plaintiff's property could not be consummated within the time provided in said option. That the demand was oppressive, wrongful, and unconscionable, and made with the knowledge that because of the dire financial situation in which this plaintiff was placed, advantage could be taken of her. That in order to save, for herself, her equity in said property plaintiff agreed to and did pay to the said defendant, McCoy Land Company, a corporation, and to William C. Scarritt, its attorney and president, the said sum of $ 2450.00. That said payment was made under the circumstances hereinbefore set forth, which destroyed the free agency of plaintiff and deprived her of the exercise of her free will. All of which was well known to the defendants and each of them.

"That the conduct of the...