Winter v. Kansas City Cable Ry. Co.

Decision Date30 June 1900
Citation160 Mo. 159,61 S.W. 606
PartiesWINTER v. KANSAS CITY CABLE RY. CO.
CourtMissouri Supreme Court

1. An infant obtained a judgment for $5,000 against a solvent railroad company, which was affirmed by the supreme court. On execution sued out against it, defendant interpleaded against the next friend of the infant and curators appointed for him by different courts, but without paying the money into court. The rightful curator, on representations by a friend of defendant that the litigation would be protracted if settlement were not made, obtained an order from the probate court to accept $4,500 in full settlement of the judgment, which, with interest accrued, then amounted to $6,800. Satisfaction of the judgment was then entered on the records. The order was subsequently rescinded on the ground of mistake as to the facts. Held, that there was no consideration for the release of the balance due on the judgment, the infant's right thereto being no longer in dispute.

2. The discontinuance of vexatious lawsuits brought to harass the attorneys of an infant who had obtained a final judgment against a railroad company, and to delay the collection thereof, furnishes no consideration for a release of the judgment by the infant's curator for less than the amount due thereon.

3. Where a curator, under authority of the probate court, released on the record an infant's judgment against a railroad company for less than the amount due thereon, and unnecessarily attached his seal thereto, the seal did not conclusively import a consideration for the discharge of the entire debt.

4. Rev. St. 1889, § 2090, provides that whenever a specialty or other written contract for the payment of money or delivery of property shall be the foundation of an action or defense in whole or in part, or shall be given in evidence in any court without being pleaded, the proper party may prove want or failure of consideration thereof, in whole or in part. Held, that equity would inquire into the consideration of a curator's release under seal of an infant's judgment for less than the amount thereof.

5. Where an infant sought to rescind his curator's settlement for less than the amount due on his judgment against a railroad company, on the ground of fraud and want of consideration, he was not obliged to tender the amount paid, to recover the balance due, since be was entitled to this in any event.

Appeal from circuit court, Jackson county; Charles L. Dobson, Judge.

Suit by Willie Winter, by Thomas R. Smith, curator, against the Kansas City Cable Railway Company, to set aside a compromise. A judgment for plaintiff was affirmed by the Kansas City court of appeals, and certified on dissent. Affirmed.

The following opinions were filed in the Kansas City court of appeals:

"SMITH, J.

This is a suit in equity. For a proper understanding of the questions presented for decision, no better general statement of the case can be made than is to be found in the allegations of the petition, which are as follows:

"`Plaintiff says: That Thomas R. Smith is the duly appointed and legally qualified curator of the estate of said Willie Winter, a minor under the age of fourteen years. Said Smith was appointed curator of said estate January 29, 1890, by the probate court of Buchanan county, in which county said minor then resided. Defendant is a corporation duly incorporated. That the estate of said minor then consisted of a judgment of the circuit court in and for Jackson county, Missouri, sitting at Kansas City, for the sum of $5,000, against said defendant, rendered on due service, and dated April 22, 1886, in favor of said Willie Winter, by his next friend, D. R. Stevens. That on the 2d day of January, A. D. 1890, said judgment was affirmed by the supreme court of the state of Missouri , and no other proceedings to reverse or modify or in any way affect the validity of said judgment have been commenced or prosecuted. The said Smith had no connection with, nor personal knowledge of, the litigation to procure said judgment, or of the appeal to the supreme court to reverse the same, as said proceedings on behalf of said minor were conducted wholly by said next friend. On or about the 17th day of March, A. D. 1892, at St. Joseph, Missouri, said Thomas R. Smith was approached by defendant's agent, whom said Smith at the time supposed and believed to be the attorney for said Willie Winter. That he was informed by said agent that said judgment was in litigation of a tedious and complicated nature, and that defendant was willing to pay the sum of $4,500 in settlement of said judgment. Relying upon the representations so made as aforesaid, said Smith the same day made application at the February term, A. D. 1892, to the probate court of Buchanan county, for, and procured, an order authorizing said curator to accept said sum in satisfaction of said judgment. And on the next day, March 18, 1892, at Kansas City, Missouri, said Smith accepted from defendant said sum, and entered on the margin of the record of said judgment satisfaction in full thereof, as curator of said estate. Said judgment, when so satisfied, principal and interest, amounted to the sum of six thousand seven hundred and seventy ($6,770) dollars, exclusive of costs. Thereafter, at the same term of said court, on due notice to defendant, plaintiff made application to have said order of said probate court authorizing said settlement set aside, which order said court made during said term in the following words and figures, to wit:

"`"In the Probate Court within and for Said County. At the February term, 1892, on this 7th day of May, 1892, during the session of said court, among other things had and done was the following, to wit:

"`"In the Matter of the Estate of Willie Winter, Minor. Now, on this day the motion of Thomas R. Smith, public administrator of Buchanan county, Missouri, in charge of the estate of said minor, to set aside an order of this court heretofore made, ordering and directing a compromise of a judgment against the Kansas City Railway Company, coming on to be heard, and it being shown to the court that due notice of the hearing of said notice has been served on said company, the same is submitted to the court on the evidence offered; and it appearing to the court that the order of this court heretofore made at this term on the 17th day of March, 1892, directing the public administrator in charge of said estate to accept $4,500 in full settlement of a judgment against the Kansas City Cable Railway Company, was made on a mistake of facts as to the amount due on said judgment, and as to litigation in relation thereto then pending, and in reliance by said administrator upon the representations of said railway company, which representations were not true, and it now appearing that said judgment was final; that the same, with interest, amounted to about $6,800, instead of $5,000, as represented; and that said railway company and its securities, who were and are liable therefor, are solvent; and it further appearing that pursuant to said order of this court, that said administrator accepted said sum of $4,500 of said company, and entered satisfaction thereof in good faith, by mistake, as aforesaid, — it is now ordered that said order directing a compromise of said judgment be, and the same is now hereby, set aside, to the end that the same shall not prevent other and further proceedings for the collection of the balance remaining due and unpaid on said judgment, and that said administrator be, and he is now here, ordered to enter a credit on said judgment for said sum of $4,500 as of the date of receipt thereof, instead of a satisfaction in full of said judgment."

"`Plaintiff says that said settlement of said judgment was made on a mistake as to the facts, relying on the representations of defendant as aforesaid, and without any consideration whatever. Said judgment is unpaid, and, except as herein stated, in full force and effect. Wherefore plaintiff prays that said settlement of said judgment, and the aforesaid satisfaction of the same of record, may be canceled, declared null and of no effect; that said $4,500 may be applied on said judgment as part payment; and that judgment be rendered against defendant and in favor of plaintiff for the balance due on said judgment, to wit, the sum of twenty-five hundred eighty-three and 30/100 dollars, and interest from the date of the filing of this petition.'

"The answer was a general denial. The decree in the court below was for the plaintiff, and defendant has appealed.

"1. The plaintiff, to maintain the issue in his behalf, was permitted, against the objections of defendant, to prove certain declarations of Vinton Pike, on the assurance given by the defendant that he would later on connect Pike with defendant in the capacity of attorney or agent. The objectionable declarations of Pike, just referred to, were those made by him to the curator and Mr. Carolus, and which the testimony of the two latter tended to prove. The curator testified that Pike told him that he believed the best thing to do was to accept the $4,500 offer of settlement made by the defendant, and to procure an order of the probate court authorizing the same; that there might be trouble in getting the $5,000; that defendant would not settle it, perhaps, without being forced; and that litigation would eat up the amount. These and other similar declarations made by Pike to the curator respecting the signing of the paper requesting that the probate court, by an order, authorize a settlement of the judgment, and the subsequent occurrences connected with the curatorship, were testified to by the curator. Carolus testified: That Pike told him that plaintiff resided in Buchanan county, and had a judgment...

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