In re Jamison's Estate
| Decision Date | 09 June 1947 |
| Docket Number | No. 40148.,40148. |
| Parties | In re JAMISON'S ESTATE. PETERS v. JAMISON'S ESTATE et al. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, St. Louis County, Division No. 1; Raymond E. LaDriere, Judge.
Proceeding in the matter of the estate of Hugh Stuart Jamison, deceased, upon application by Cora Holthouse Jamison and another, executors, for an order of partial distribution and authority to deduct stated amount from distributive share of Anna Jamison Peters (Mrs. Rolla E. Peters), a legatee. From a judgment denying authority to make such deduction, the executors appeal.
Judgment affirmed.
Ben L. Shifrin, Paul W. Rothschild Taylor, Mayer & Shifrin, all of St. Louis, for appellants.
Jacob M. Lashly and Lashly, Lashly, Miller & Clifford, all of St. Louis, for Anna Jamison Peters (Mrs. Rolla E. Peters), respondent.
DALTON, Commissioner.
This cause originated in the Probate Court of St. Louis County when the appellants, the executors of the estate of Hugh Stuart Jamison, deceased, applied to that court for an order of partial distribution and sought authority to charge or deduct from the distributive share of respondent, a legatee under the last will and testament of Hugh Stuart Jamison, deceased, the sum of $27,600.05, which sum had theretofore been paid out by the estate on a claim filed by Paul Brown and Company. The claim so paid was based upon a written guaranty signed by deceased, guaranteeing a brokerage account standing in the name of respondent. The Probate Court authorized the deduction, as prayed. On appeal, the Circuit Court of St. Louis County reversed the judgment of the Probate Court and denied the executors the right to deduct the amount claimed from respondent's distributive share. The executors have appealed.
Appellants concede that "the facts are practically undisputed." On January 26, 1936, the deceased wrote his sister Mrs. Rolla E. Peters (respondent), as follows: The forms inclosed for his sister's signature were, (1) what is known as a "Customer's Agreement" by which she requested the assistance of Paul Brown and Company "in making payments for purchases and in the delivery of securities," stated her desire "to open a credit account" and guaranteed the account, and (2) a "Trading Authorization" by which she authorized H. S. Jamison to act for her, to buy, sell and trade for her "account and risk" and she agreed to pay "all losses arising therefrom or debit balance due thereon." The forms dated January 25, 1936, were signed by respondent and delivered to Paul Brown and Company. On the same date, January 25, 1936, "and as a condition precedent to the opening of said account," the deceased, at the request of Paul Brown and Company, signed a written agreement with Paul Brown and Company, entitled "guaranty of account," by which he unconditionally promised to pay any debit balance and all losses by reason of the account of his sister or by reason of giving credit to her. Respondent had nothing to do with the brokerage account, except that she signed the documents, supra. The deceased handled the account until his death on November 12, 1942, when the debit balance amounted to $103,411.38. Respondent never received any dividends on the account and she paid nothing on it. The account was subsequently liquidated by consent to determine the extent of the deceased's liability on his contract of guaranty. The balance due amounted to $27,600.05. Paul Brown and Company filed a claim for that amount against the estate of the deceased and the claim was duly allowed and paid.
Over the objection of appellants, that the evidence violated the parol evidence rule and was at variance with the terms of the written contracts, the respondent's husband was permitted to testify on her behalf concerning conversations with deceased and conversations between deceased and respondent. Mr. Peters testified that respondent had requested her brother to discontinue the account. "She didn't see why he should have an account in her name." She inquired if he wasn't losing money under it, and she wanted the account discontinued. "She said if he was going to run something of this kind, why he didn't just send her the interest and leave the rest of it alone; the interest he was paying Paul Brown and Company." Actually, the interest was not being paid, but was being charged to the account and a total of $20,103.82 was so charged while the account was open. When respondent inquired whether the stock was being issued in her name, the deceased told her When Mr. Peters questioned deceased about the account, to determine whether respondent should make a return as to the securities in the account under the Minnesota money and credits tax law, Minn.St.1945 and M.S.A. § 285.01 et seq., deceased said that there was nothing for respondent to worry about, "that there was no way she could lose anything; and if there was any profit, she would get it; if there was any loss, it was his."
It further appears that after the account was opened, Paul Brown and Company sent regular monthly reports to respondent in Minneapolis, until March 1940, about the time of the conversations with the deceased concerning the necessity for reporting the matter for taxation purposes. Thereafter, respondent heard nothing further from Paul Brown and Company, and assumed the account was closed, until October 29, 1942, shortly before deceased's death. This failure to receive reports was due to the fact that, about March, 1940, a notation had been entered upon the company records for all of respondent's mail to be sent to Mr. H. L. Kelley, an employee of Paul Brown and Company. Mr. Kelley was closely associated with the deceased, and the reports on respondent's account were, thereafter, received by Mr. Kelley and delivered to the deceased.
On March 19, 1938, the deceased wrote his sister as follows:
There was further evidence that at a time when the debit balance on the account amounted to $94,929.75, the deceased made a $1,000 cash gift to his sister to be used to pay cab fare and anything she wanted for herself.
Appellants assign error on the admission of the testimony of Mr. Peters concerning conversations with the deceased and conversations between the deceased and the respondent. Appellants contend that by this evidence respondent attempted to vary the written contracts, "Customer's Agreement" and "Trading Authorization," which she had signed. Appellants cite many cases in support of the general rule that parol evidence, in the absence of fraud, duress or mistake, is inadmissible for the purpose of varying the terms of a written contract. The rule contended for has no application under the facts here, as a preliminary discussion of the issues of law and fact will show. The terms of the written contracts between respondent and Paul Brown and Company are not in dispute. The execution and delivery of these contracts is conceded. No question is presented concerning the liability of respondent to Paul Brown and Company on these contracts in the event that the balance due on the account had not been paid in full by the estate of the deceased. Respondent's liability to Paul Brown and Company on her contracts, if the account had not been so paid, is in effect conceded. However, there was no written contract between the deceased and his sister.
Appellants concede that their cause of action is not on contract, but is based upon money paid out by the estate on a claim of indebtedness filed by Paul Brown and Company, as to which indebtedness appellants contend respondent was the principal debtor and the deceased was a guarantor. In such case a promise of reimbursement is implied by law. See, Halliburton v. Carter, 55 Mo. 435, 439. Such an action, although an action at law, is based upon equitable principles. 41 C.J. 20, Sec. 17; Treece State Bank v. Wade, Mo.App., 283 S.W. 714, 716; Henneke v. Strack, Mo.App., 101 S.W.2d 743, 746. Under the facts shown it was unnecessary to proceed in a court of equity, since the matter was cognizable before the probate court which could apply equitable principles in a proper action. See, State ex rel. Baker v. Bird, 253 Mo. 569, 580, 162 S.W. 119, 122, Ann.Cas.1915C, 1353. Basically, the cause of action rests upon the equitable doctrine of subrogation. Appellants and respondent recognize this fact and discuss the doctrine at length. Appellants say that "equity recognizes and enforces by subrogation the right of the guarantor to reimbursement from the principal where the guarantor became such without the knowledge or consent of the principal, unless the guarantor can clearly be shown to be an officious intermeddler"; and that recovery by the guarantor "is based on the fundamental doctrine of equity in opposition to unjust enrichment and not on a contractual relationship, eliminating thereby the necessity of knowledge or...
To continue reading
Request your trial
-
White v. Smith
... ... 337, 351, 53 S.W.2d 394, 399--400(10), 89 A.L.R. 607; Waugh v. Williams, 342 Mo. 903, 909--910, 119 S.W.2d 223, 226(6); In re Jamison's Estate, Mo., 202 S.W.2d 879, 887(15); Emery v. Brown Shoe Co., Mo., 287 S.W.2d 761, 766--767(3); Rodgers v. Seidlitz Paint & Varnish Co., Mo., 404 S.W.2d ... ...
-
Martin v. Mercantile Trust Co.
... ... Louis, of counsel ... EAGER, Presiding Judge ... This is an action in quantum meruit by a real estate broker to recover for services which he claims were the procuring cause of the sale of the Mississippi Valley Trust Building in the City of St ... ...
- In re Jamison's Estate
-
Stanziale v. Musick
... ... Louis Steinbaum Real Estate Co. v. Maltz, Mo., 247 S.W.2d 652, 656, 31 A.L.R.2d 1052; In re Jamison's Estate, Mo., 202 S.W.2d 879, 884. Plaintiff's counsel properly might have ... ...