Barnett v. Kemp
| Decision Date | 26 May 1914 |
| Citation | 167 S.W. 546,258 Mo. 139 |
| Parties | GEORGE W. BARNETT, Administrator of Estate of SARAH KEMP, Appellant, v. GEORGE W. KEMP |
| Court | Missouri Supreme Court |
Appeal from Pettis Circuit Court. -- Hon. Louis Hoffman, Judge.
Affirmed.
George Barnett, Jr., Sangree & Bohling and Barclay, Fauntleroy Cullen & Orthwein for appellant.
(1) In an action for an accounting, the principal has the burden of showing the amount received and not accounted for, but it is not necessary for the principal to prove that the agent has not accounted for money he is shown to have received. The burden is upon the agent to show that he has accounted. Young v. Powell, 87 Mo. 128; Carter v Primm, 52 Mo.App. 102; Bunker v. Hibler, 49 Mo.App. 542; Anderson v. Bank, 4 N.D. 182; Marvin v. Brooks, 94 N.Y. 71; Bank v Rawls, 7 Ga. 191, 50 Am. Dec. 394. (2) An agent who fails to keep an account raises thereby a suspicion of infidelity or neglect, creates a presumption against himself, and brings upon himself the burden of accounting to the utmost for all that has come into his hands; and in such a case every doubt will be resolved against the agent, and in favor of the principal. Linen Co. v. Hough, 91 Ill. 63; Peterson v. Poigard, 8 B. Mon. 309; Traction Co. v. Anson, 41 Ore. 562; Landis v. Scott, 32 Pa. St. 495; Stainton v. Carron Co., 24 Beav. 346, 3 Jur. N.S. 1235, 27 L. J. Ch. 89, 53 Eng. Reprint 391. (3) Where a party, before suit, gives a reason for his conduct and decision touching anything in controversy, he cannot, after litigation begun, and costs made, change his ground and put his conduct upon another and different consideration. He is not permitted to thus mend his hold. He is estopped from doing it by a settled principle of law. Railway Co. v. McCarthy, 96 U.S. 258; Danville v. Insurance Co., 71 N.W. 517; Insurance Co. v. Waugh, 83 N.W. 81; Ballon v. Sherwood, 49 N.W. 796, 797.
Montgomery & Montgomery and Charles E. Yeater for respondent.
(1) Plaintiff is not entitled to plead estoppel against the defendant on the ground that he brought the suit on the faith of his admissions of indebtedness, because thereby no change was effected in the rights or remedy of plaintiff, which remained precisely the same as before suit, and costs of suit are not a sufficient basis for estoppel; (2) and a party can not claim estoppel because of representations which induce him to do some act he is already legally bound to do; (3) moreover, the representation of indebtedness made by defendant was made on the confidence that defendant had in plaintiff as his attorney and intimate friend of many years' standing, and the probate judge, both of whom told him he owed his mother's estate and must account for the rentals; (4) and such representation was merely a legal conclusion or a mixed conclusion of law and fact now at bar in this case. Lumber Co. v. Lumber Co., 117 La. 1; Hughes v. Life Ins. Co., 32 Wash. 1; Jamison v. Auxier, 124 N.W. 606; Eikenberry v. Edwards, 67 Iowa 67; Frei v. McMurdo, 101 Wis. 423; Glove Co. v. Jennings, 58 Conn. 74; Bank v. Falkner, 31 N. J. L. 52; Lewis v. Prenatt, 24 Ind. 98; Warder v. Baker, 54 Wis. 49; Land Assn. v. Banks, 80 Minn. 317; McMaster v. Ins. Co., 55 N.Y. 222; State ex rel. v. Lumber Co., 77 Mo.App. 545; 16 Cyc. 751, 765. (2) Mrs. Kemp and defendant were never in the relation of principal and agent, or beneficiary and trustee, but there was simply the relation of mother and son, living together in the same family and using common funds, the son assisting his aged mother as best he could, but subject to her control and domination, and keeping no books with her consent, but reporting all transactions to her at the time, which relation continued to the satisfaction of both parties until the mother's death; consequently the defendant accounted to his mother in her life time and plaintiff is not entitled to an accounting from him. Carrau v. Chapotel, 47 La. Ann. 408; Evans v. Evans, 42 Tenn. (2 Cold.) 143; Title & Trust Co. v. Weitzel, 152 Pa. St. 498; McCarty v. McCarty's Admr., 11 Ky. L. R. 366; Donavan v. Griffith, 215 Mo. 149. (3) While it is a general rule that it is the duty of an agent to keep true and regular accounts and render statements thereof when required by the principal, such general rule has no application to a case in which all matters of account were fully explained at the time as the business proceeded, and where by the consent of the principal no books are kept. Carrau v. Chapotel, 47 La. Ann. 408; Rich v. Austin, 40 Vt. 416; Macauley v. Elrod, 16 Ky. L. R. 549; Hamilton v. Hamilton, 44 N.Y.S. 97; Robbins v. Robbins, 3 A. (N. J.) 264 Smith, Admr., v. Perry, 197 Mo. 460.
This is a suit in equity for an accounting brought in the circuit court of Pettis county by the administrator of the estate of Sarah Kemp, deceased, against George W. Kemp, her son. On a hearing a judgment was rendered in favor of the defendant, from which the plaintiff appeals.
Plaintiff in his petition, after the formal allegations as to his appointment, qualification, taking charge of the estate of Sarah Kemp, and that he is now acting as administrator of same, alleges that prior to the year 1887 one James Kemp died in Pettis county, leaving a large amount of property; that at the time of the final settlement of said estate defendant was administrator of same, and in said year as such administrator made a final settlement of said estate, and in same there was found to be due Sarah Kemp, the widow and sole legatee of deceased, the sum of $ 6667.42; that at the time said Sarah Kemp was infirm from age, and remained so until her death, which occurred in the early part of 1908; that during this time she lived with her son, the defendant, as a member of his family, and constituted him her agent to conduct and manage all of her business; that by reason of the confidence reposed by her in the defendant, a fiduciary relation was created between them, and that defendant managed and controlled her property, received the proceeds thereof, and paid out whatever was necessary for her support, and made the expenditures necessary in the conduct of her business.
That upon the final settlement of said estate by defendant as such administrator, there was turned over to him as agent for his mother, the sum of $ 6667.42, to be held and managed by him for her use and benefit.
That Sarah Kemp owned a large farm of six hundred and twenty-nine acres in Pettis county, and that defendant as her agent controlled same, and received the rents therefor; that the rental value of same was about $ 900 per year, and that defendant received an average of this sum per year for a period of twenty years consecutively, beginning with the year 1887 and ending with the year 1907, making a total of $ 18,000 thus received by defendant.
That for a period of sixteen years prior to her death Sarah Kemp owned, in the town of Lamonte, a house, livery barn and a lot of ground, of the rental value of $ 8 per month, or $ 96 per year, and that defendant has received for her the rents on said property for said period in the total sum of $ 1536.
That the aggregate sum received by defendant for and on behalf of his mother, during the time he acted as her agent, was $ 25,203.42, as near as plaintiff can ascertain same.
That said Sarah Kemp was old and required but little for her support and maintenance, the necessary amount of which plaintiff has not been able to ascertain, a matter peculiarly within the knowledge of the defendant.
That plaintiff has demanded of defendant a statement of his accounts showing the total amount of money received by him for his said mother and the amounts paid out on her account, and the items thereof, but that the defendant has failed and refused to render said account to plaintiff or to pay anything on account thereof. Wherefore the plaintiff prays for an accounting between plaintiff and defendant, and for judgment, etc.
Defendant for his answer admits the death of James Kemp, prior to 1887; that he left a will, and a large amount of property; that at the time of the final settlement of the estate this defendant was the administrator and made such settlement, but denies that there was then found to be due Sarah Kemp the sum of $ 6667.42, or any other sum, and denies that on said settlement said sum was paid over to him. He admits that his mother was old in 1887, she having been born in 1813, but denies that she was feeble or remained so until her death in 1908, but on the contrary that she was a woman of strength and activity, in full possession of her mental faculties until her last illness. That his mother lived with him, as a member of his family, from 1892 until her death, but denies that she constituted him her agent to conduct and manage her business, or gave him sole control thereof. But he admits that she reposed entire confidence in him and that their relations were confidential; but he denies that any agency, trusteeship or other fiduciary relation other than that arising from their kinship as mother and son, and the affection and confidence they had for each other, existed between them; that he did manage and control her property and received the proceeds thereof, and paid the necessary expenses thereon, and that the true facts of the relations between defendant and his mother are as follows:
That in 1882 said James Kemp, the husband of Sarah Kemp, died, and she was left alone on the farm, and the defendant as her son from a sense of duty and affection undertook the management of her affairs; that she had only one other child, a Mrs Hendrix, whose husband was then living, and that Mrs. Hendrix would not or could not live with her mother, and that the defendant...
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