Barnes v. Boatmen's Nat. Bank of St. Louis

• Decision Date: 25 October 1941
• Docket Number: 37098
• Citation: 156 S.W.2d 597,348 Mo. 1032
• Parties: Francis M. Barnes, Jr., v. The Boatmen's National Bank of St. Louis, a Corporation, Executor of the Estate of Hugh W. Thomasson, Appellant
• Court: Missouri Supreme Court

156 S.W.2d 597

348 Mo. 1032

Francis M. Barnes, Jr., v. The Boatmen's National Bank of St. Louis, a Corporation, Executor of the Estate of Hugh W. Thomasson, Appellant

No. 37098

Supreme Court of Missouri

October 25, 1941

Rehearing Denied December 16, 1941.

Appeal from Circuit Court of City of St. Louis; Hon. Robert J Kirkwood, Judge.

Affirmed.

Franklin E. Reagan, James V. Frank and Charles Chaflin Allen Jr., for appellant.

(1) The two counts, one on contract and one on quantum meruit, were joined only because they arose out of one contract. Sec. 675, R. S. 1929; Sims v. Spelman, 232 S.W. 1071, 209 Mo.App. 186. (2) The contract governed the right of respondent to recover under count two on quantum meruit. Williams v. Chicago, S. F. & C. Ry. Co., 112 Mo. 463, 20 S.W. 631; Macke v. Harris, 27 S.W.2d 1079. (3) The contract is unenforceable, and respondent cannot recover on quantum meruit. Burnett v. Freeman, 125 Mo.App. 683, 103 S.W. 121; Burnett v. Freeman, 134 Mo.App. 709, 115 S.W. 488; Ward v. Hartley, 178 Mo. 135, 77 S.W. 302; 12 Am. Jur., sec. 188, pp. 690, 691; Re Statement of Contract, secs. 553, 598, 606; Neese v. Joseph, 30 L. R. A. (N. S.) 278; Trist v. Child, 21 Wallace, 441, 22 L.Ed. 623; Gesellschaft Fur Drahtlose Telegraphie v. Brown, 78 F.2d 410; Williston on Contracts, secs. 1740, 1768A; Bay v. Bedwell, 21 S.W.2d 203. (4) A contract to furnish testimony is illegal and against public policy. Cases cited under Point (3), supra; Stoedter v. Turner, 237 S.W. 141. (5) Where illegality of the contract appears from the face of the petition and from plaintiff's own proof, it was properly raised by the demurrer and by declarations of law requested. Shohoney v. Railroad, 231 Mo. 131, 132 S.W. 1059; School District v. Sheidley, 138 Mo. 672, 40 S.W. 656; Sedalia Bd. of Trade v. Brady, 78 Mo.App. 585; Pendleton v. Asbury, 104 Mo.App. 723, 78 S.W. 651. (6) There was no open, mutual and current account so as to tack all services together as required by Section 867, Revised Statutes 1929. Fidway v. Land Co., 187 Mo. 649, 86 S.W. 150. (7) The Statute of Limitations begins to run in quantum meruit from each item performed. 37 C. J., p. 823, sec. 178, notes 31, 32; Thomas v. Fitzgerald's Estate, 297 S.W. 425; Harrison v. Hall, 8 Mo.App. 167.

Fordyce, White, Mayne, Williams & Hartman, Barker, Durham & Drury, Clifford Greve, Jr., and James T. Blair, Jr. for respondent.

(1) Respondent's suit is deemed to have been commenced on October 19, 1938, when respondent's petition was filed, in the absence of any showing that process was delayed by respondent. R. S. Mo. 1929, sec. 724; State ex rel. v. Wilson, 216 Mo. 215, 115 S.W. 549; State ex rel. v. Producers, etc., 341 Mo. 1106, 111 S.W.2d 521. (2) Since the terms of respondent's employment contemplated that respondent should not be paid until a future time, i. e., when credit was allowed by probate court and impliedly when the assets of the estate had been recovered, respondent had no right to sue for compensation during the period of his employment and respondent's right of action accrued a reasonable time after October 24, 1933, the last date services were requested and rendered and well within the five-year period. R. S. Mo. 1929, sec. 860; Blackwell v. De Armants Estate, 300 S.W. 1035; Smith v. Collins, 243 S.W. 219; Balsano v. Madden, 138 S.W.2d 660; Schrabauer v. Schneider Engraving Co., 25 S.W.2d 529, 224 Mo.App. 304; State v. Logan, 195 Mo.App. 171, 190 S.W. 75. (3) The fact that respondent's action is based upon quantum meruit does not alter the date of accrual of respondent's cause of action. (4) The asserted illegality of respondent's employment was not pleaded by appellant, and the defense is available to appellant only if the illegality of the cause of action conclusively appears upon the face of the pleadings or necessarily appears from respondent's own evidence. McDermott v. Sedgwick, 140 Mo. 172; Smith v. Brougher, 274 S.W. 532; St. Louis Agricultural & Mechanical Assn. v. Delano, 108 Mo. 217; Mitchell v. Branham, 119 Mo.App. 643, 95 S.W. 939. (5) Respondent's second count and respondent's evidence in support thereof showed that under his employment as an expert psychiatrist respondent had performed substantial services in examination of the voluminous depositions, transcripts, affidavits and other records pertaining to the mental condition of Hugh W. Thomasson, deceased, for the purpose of qualifying respondent to testify as an expert and had rendered substantial services in advising the administratrices through their counsel, and the agreement of the administratrices by their counsel to compensate respondent therefor was neither improper nor contrary to public policy. Shelton v. McHaney, 343 Mo. 119, 119 S.W.2d 951; Burnett v. Freeman, 125 Mo.App. 683, Id., 134 Mo.App. 709. (6) Even if respondent's compensation had been made contingent upon ultimate recovery, such fact would have created no inference of illegality; the element of contingency would be material only if compensation were contingent upon the nature of respondent's testimony or upon respondent's testifying to a particular fact or facts, regardless of his honest opinion. Stoedter v. Turner, 237 S.W. 141; Haley v. Hollenbeck, 165 P. 459, 53 Mont. 494; Gross v. Campbell, 160 N.E. 511, 26 Ohio App. 460; Bell County Board of Education v. Lee, 39 S.W.2d 493, 239 Ky. 317; Lipscomb v. Adams, 193 Mo. 530, 91 S.W. 1046. (7) In construing the terms of respondent's employment, the court should be guided by the construction placed upon it by the parties themselves in its performance. St. Louis v. Laclede Gas Light Co., 155 Mo. 1; Knisely v. Leathe, 178 S.W. 453; Clayton v. Wells, 324 Mo. 1176, 26 S.W.2d 969.

OPINION

Tipton, P. J.

This case comes to the writer on reassignment. Respondent filed a petition in two counts in the Circuit Court in the City of St. Louis, Missouri, against the appellant for services rendered as a psychiatrist in a suit involving the estate of Hugh W. Thomasson, deceased. Count one was upon a contract entered into on or about February 15, 1933, between the respondent and the two administratrices of Hugh Thomasson's estate, Ella Bolles and Elmira Townsend. Count two was on a quantum meruit for the value of the services rendered under that contract. Count one was dismissed during the trial; respondent obtained a judgment on count two in the sum of $ 15,000. It is from that judgment appellant has duly appealed.

Hugh W. Thomasson was married to a woman, referred to in the record as Grace Thomasson, on July 25, 1930, and on February 23, 1930, in the State of Illinois, and subsequently was married to her again on January 12, 1933, in the State of Arkansas, which was about two weeks prior to his death on January 28, 1933, in that state. The evidence shows that Grace Thomasson was an adventuress, and that she and her associates kept Hugh Thomasson in captivity from the date of her first marriage until his death. During this time he put mortgages on his property and signed warranty deeds conveying other portions thereof to her or one of her associates, followed by various conveyances to trustees and others calculated to put the property beyond his reach and the reach of his heirs or devisees.

During his lifetime numerous suits had been filed against him and in his name by various persons in an attempt to arrest the schemes of Grace Thomasson and her associates in their design to possess themselves of Hugh Thomasson's estate or to perpetuate the titles of the persons who had obtained this property from him, all of which suits were pending at his death. In fact, one was being tried at that time, and ninety days had already been consumed in its trial. This is referred to in the evidence as the "ninety-day" trial. The respondent, Francis M. Barnes, Jr., had been used as a witness in the trial of that case; he also had advised the attorneys trying the case for the next of kin of Hugh Thomasson. The issue in that case, as well as in all subsequent cases herein referred to, was the sanity of Thomasson.

On February 13, 1933, Ella F. Bolles and Elmira Townsend were appointed administratrices of Hugh Thomasson's estate by the probate court of the city of St. Louis, Missouri. About the same time, letters of administration were issued in St. Louis County to the public administrator, and also Grace Thomasson, his ostensible widow, caused letters of administration to be issued in Little Rock, Arkansas.

The administratrices, Bolles and Townsend, were represented by Mr. Taylor Young and Mr. Patrick Cullen, of the St. Louis City bar. Shortly after their appointment as administratrices, they undertook to recapture the property of the estate. On January 6, 1933, Hugh Thomasson had been adjudicated a person of sound mind in a court in Little Rock, Arkansas. These administratrices instituted proceedings to set aside this adjudication, and also to cancel the letters of administration that had been issued to Grace Thomasson in Arkansas. The public administrator in St. Louis County brought an action to enjoin these administratrices from interfering with his administration of the estate, but the administratrices secured a preliminary writ or prohibition from this court. An issue of fact was raised in that proceeding, and this court appointed Honorable Grover Huston, of the Lincoln County bar to take the evidence. This writ was later made absolute. Numerous other suits were filed or pending which will not be necessary to detail, but suffice to repeat the issue in all cases was the sanity of Hugh Thomasson. At the time of his death, all of his assets had been either conveyed away or were so encumbered that the estate was without any tangible assets.

Taylor Young and Patrick H. Cullen were of the opinion that the...