Baker v. Swearengin

• Citation: 174 S.W.2d 823,351 Mo. 1027
• Decision Date: 01 November 1943
• Docket Number: 38520
• Parties: J. A. Baker, v. Roscoe Swearengin, Administrator of the Estate of McD. Swearengin, Deceased, Appellant
• Court: United States State Supreme Court of Missouri

174 S.W.2d 823

351 Mo. 1027

J. A. Baker, v. Roscoe Swearengin, Administrator of the Estate of McD. Swearengin, Deceased, Appellant

No. 38520

Supreme Court of Missouri

November 1, 1943

Appeal from Wright Circuit Court; Hon. C. H. Jackson Judge.

Reversed and remanded.

John M. Bragg for appellant.

(1) The respondent's evidence discloses that the purported contract was oral and verbal and is not based upon a written contract between McD. Swearengin, deceased and J. A. Baker therefore McD. Swearengin is not bound, since he was under no legal obligation to care for his mother. No person shall be bound to answer for the debt or obligations of another unless by written contract. Section 3354 Revised Statutes of Missouri 1939. Person not receiving any benefits himself and not discharging his own obligations not bound unless by written contract. First Natl. Bank v. Crutcher, 15 S.W.2d 888; Swarens v. Amel, 296 S.W. 849; Waggoner v. Davidson, 175 S.W. 232; Meaney v Huddleston, 13 S.W.2d 1087. (2) When defendant files general denial he is entitled to benefit of Statute of Fraud although not plead. Glascow Milling Co. v. Burgher, 97 S.W. 950. (3) Where family relationship exists as here it is necessary to show in order to recover against decedent's estate that there was, by clear and convincing testimony, that a contract actually was made between the parties. And a mere expression of a desire to bestow a bounty or reward, even though expected by the claimant is not sufficient to prove an agreement. A contract must be shown. Smith v. Davis Estate, 230 S.W. 670; Rose v. Mayes, 122 S.W. 769; Claw v. Warmington, 206 S.W. 415; Crowley v. Dogely, 161 S.W. 366; Lauf v. Wiegersen, 17 S.W.2d 371; Garner v. McKay, 15 S.W.2d 908. (4) Claimant cannot recover against decedent's estate on check issued and delivered a few hours before death of decedent. Pennell v. Ennis, 103 S.W. 147. (5) When defendant denies the allegations of the plaintiff as in this case an allegation of a contract between the respondent and the deceased McD. Swearengin, defendant is entitled to have the jury determine its truthfulness, although no evidence is offered by the defendant. Schroeder v. C. & A. Ry. Co., 18 S.W. 1094; Carnahan v. Kurn, 113 S.W.2d 824; Cluck v. Abe, 40 S.W.2d 558; Gannon v. Laclede Gaslight Co., 46 S.W. 968.

Omer E. Brown and W. L. Vandeventer for respondent.

(1) The Statute of Frauds does not apply in this case. It was an original promise by McD. Swearengin and was his obligation. It was a promise to pay for services rendered another, but not "to answer for the debt, default or miscarriage of another." Secs. 3204, 3354, R. S. 1939; Mitchell v. Davis, 100 S.W. 357. (2) The evidence shows a definite and specific promise to pay. That promise was kept by the execution and delivery of the check in payment of the obligation. It was an irrevocable assignment of the funds in the Ozark bank whether accepted or not, by the bank, since the check for $ 800 was the exact amount in the bank. Thompson v. Main Street Bank, 42 S.W.2d 56, 226 Mo.App. 246; McEwen v. Sterling State Bank, 5 S.W.2d 702, 222 Mo.App. 660; Liebarrt v. Hoehles Estate, 111 S.W.2d 925; Chandler v. Hulen, 71 S.W.2d 752; Hoffman v. Sawyer, 50 S.W.2d 674. (3) This is a suit on a check which amounted to an assignment of the funds in the bank. A check is a bill of exchange, payable on demand. It was issued prima facie for a consideration. A consideration was also proved. There was no evidence to the contrary. Secs. 3200, 3040, 3345, R. S. 1939; Fisher v. Bagnell, 186 S.W. 1097, 194 Mo.App. 581. (4) There was no error in the court directing a verdict for plaintiff. Cox v. Higdon, 67 S.W.2d 547; Home Trust Co. v. Josephson, 95 S.W.2d 1148, 339 Mo. 170, 105 A. L. R. 1063; State ex rel. v. McElhinney, 100 S.W.2d 36, 231 Mo.App. 860; Weese v. Brown, 14 S.W. 945, 102 Mo. 209; Lindhorst v. Terry, 1 Mo.App. 604; Clemens v. Knox, 31 Mo.App. 185; Stephens v. Kohen Barber Supply Co., 67 Mo.App. 587; Sturdivant Bank v. Houck, 215 S.W. 758; Krause v. Spurgeon, 256 S.W. 1072; St. Charles Savs. Bank v. Orthwein Inv. Co., 140 S.W. 921, 160 Mo.App. 369; Crawford v. Stayton, 110 S.W. 665, 131 Mo.App. 263; Hoster v. Lange, 80 Mo.App. 234.

OPINION

Gantt, J.

This is a transfer to this court by a court of appeals on the dissent of one of the judges of that court. (168 S.W. 2d 473.) The action is on a check for $ 800.00 executed by McD. Swearengin who died a few hours after signing the check. On presentation of the check after the death of Swearengin, the bank refused payment. Later the bank delivered the $ 800.00 to the administrator of Swearengin's estate. It was all the money on deposit with the bank to the credit of Swearengin at the time he executed the check.

At the close of the evidence, the court directed a verdict for the plaintiff for $ 800.00 with interest. Judgment was entered on the verdict and defendant appealed.

The petition follows: "Comes now the plaintiff and for his cause of action shows to the Court that Roscoe Swearengin is the duly appointed, qualified and acting Administrator of the estate of McD. Swearengin in the Probate Court of Douglas County, Missouri, and that said estate is in the process of administration.

"Plaintiff states that on the 31st day of October, 1940, McD. Swearengin executed his personal check for the sum of $ 800.00 drawn on the Ozark Bank, of Ozark, Missouri, for his entire account in said sum of $ 800.00, which said amount was on deposit to his account in the Ozark Bank at Ozark, Missouri, said check further containing the provision:

"'For the purpose of obtaining payment of this check I hereby represent that the amount stated therein is on deposit in said bank in my name subject to this check and is hereby assigned to the payee or holder hereof,' and being signed by McD. Swearengin. A copy of said check being hereto attached and marked 'Exhibit A'. That said check was duly presented to the Ozark Bank and that said bank refused to pay said $ 800.00 to said plaintiff.

"Plaintiff states that the said McD. Swearengin did theretofore obtain for his mother, Amanda Adeline Swearengin, aged 93 and very infirm in body and mind and health, a home with the plaintiff herein at Springfield, Missouri, and that the said McD. Swearengin, now deceased, after obtaining for his mother, the said Amanda Adeline Swearengin, a home and place of abode with the plaintiff herein, on the 7th day of March, 1938, agreed with the plaintiff herein that the said plaintiff should care for and provide for his said mother until she died, for which he would be compensated by the said McD. Swearengin; that carrying out the provisions of said contract so made and entered into, the said McD. Swearengin agreed to and did execute his personal check and transfer to the said J. A. Baker the sum of $ 800.00 in payment for said services rendered and to be rendered on behalf of his mother, the said Amanda Adeline Swearengin; that said plaintiff did support and care for the said Amanda Adeline Swearengin until her death on the 1st day of January 1941.

"That thereafter, the defendant Roscoe Swearengin, Administrator, as aforesaid, on the 19th day of December, 1940, obtained possession of said $ 800.00 from the Ozark Bank, as aforesaid, which had been assigned to plaintiff and that said $ 800.00 was placed in and now is a part of the assets of the estate of McD. Swearengin, deceased.

"WHEREFORE, by reason of the premises, plaintiff states that the estate of McD. Swearengin is indebted to him in the sum of $ 800.00, together with interest at the rate of 6% on said sum from November 1, 1940, to date, for which he prays judgment, together with his costs."

The answer admitted that defendant was the administrator of said estate and denied generally the other allegations of the petition.

It will be noted that plaintiff pleads the facts relied on to show a consideration for the check. In other words, he did not rely on the presumption that the check was given for a valuable consideration. Furthermore, after the check was in evidence, he assumed the burden of evidence by calling three or more witnesses who gave testimony on the issue of consideration. The presumption of a valuable consideration vanished on plaintiff's introduction of the evidence on that issue. [State ex rel. Strohfeld v. Cox, 325 Mo. 901, 907, 30 S.W. 2d 462.] The defendant introduced no evidence except the testimony of a court reporter which tended to contradict evidence given by the plaintiff.

In view of the question presented by the record, it is of no consequence whether the petition states an action on an implied warranty of the drawer that the check would be paid by the bank (Fisher v. Bagnell, 194 Mo.App. 581, 586, 186 S.W. 1097), or whether the petition states an action for money had and received on the theory of an assignment of the money in the bank to the payee by the execution and delivery of the check.

Defendant contends that the court should have sustained the demurrer at the close of the evidence on the theory that the contract relied on by plaintiff was not in writing, and for that reason void under the statute of frauds. The trial court correctly ruled this contention against defendant. The alleged contract is not an agreement to answer for the debt of another. As alleged in the petition, it is a contract whereby Swearengin agreed to pay plaintiff for his services in caring for Swearengin's mother.

Defendant also contends that the court should have overruled plaintiff's motion for a directed verdict. He argues that the evidence authorized a finding by the jury that McD. Swearengin did not contract with plaintiff to pay for the care of his mother, and for that reason there was no consideration for the check. There was...