Bentley v. Bentley

• Decision Date: 11 January 1915
• Docket Number: No. 11329.,11329.
• Citation: 172 S.W. 486
• Parties: BENTLEY v. BENTLEY.
• Court: Missouri Court of Appeals

172 S.W. 486

BENTLEY v. BENTLEY.

No. 11329.

Kansas City Court of Appeals. Missouri.

January 11, 1915.

1. HUSBAND AND WIFE (§ 232) — WIFE'S SEPARATE PROPERTY — ACQUISITION BY HUSBAND — PROOF.

Where a wife permitted her husband to use certain money which was her separate property, he occupied toward her a position of trust and confidence; and hence, in an action by her against him to recover the money, it was only incumbent on her to establish a prima facie case by showing generally that she had money and that he was in charge of it and had used it or a portion thereof, which proof would place the burden on him to explain the entire series of

transactions and show that the money received had been repaid.

2. PAYMENT (§ 73) — WIFE'S SEPARATE PROPERTY — USE BY HUSBAND — EVIDENCE.

In an action by a wife to recover money alleged to have been loaned by her to her husband, evidence held insufficient to establish his plea of payment.

3. EVIDENCE (§ 354) — BANK BOOKS — RELEVANCY.

In an action by a wife to recover money alleged to have been loaned by her to her husband, the books of a bank through which the money passed, showing the accounts of the parties, were admissible.

4. INTEREST (§ 39) — WIFE'S SEPARATE PROPERTY — LOANS TO HUSBAND.

Where a husband, in order to induce his wife to loan him her separate funds, promised to pay her interest, she was entitled to recover interest on the amount loaned from the time he received the money.

Error to Circuit Court, Bates County; C. A. Calvird, Judge.

Action by Susan A. Bentley against John T. Bentley. Judgment for plaintiff, and defendant brings error. Affirmed.

Smith & Chastain, of Butler, for plaintiff in error. C. A. Denton, of Butler, for defendant in error.

TRIMBLE, J.

In this action a wife sues her husband, John T. Bentley, to recover money belonging to her as her separate property, which she alleges the husband, on and after their marriage, took possession of and assumed to and did handle for her, and, while doing so, appropriated it to his own use and benefit without her consent in writing.

The husband's answer averred that:

"Whatever money, if any, belonging to the plaintiff, this defendant ever took possession of, assumed to or did handle, and whatever, if any, of personal property of the plaintiff this defendant ever did take possession of, assumed to or did handle, this defendant long since accounted for and paid over to the plaintiff herein."

The reply denied this.

The court found that, of the wife's money so obtained and handled by the husband, the sum of $500 was obtained and used by him after the marriage, and that he had not repaid her this amount, and that she had demanded it of him long prior to the institution of suit. Judgment was rendered against him for that amount, with interest and costs. He thereupon brought the case here on a writ of error.

His principal contention is that the evidence shows that the wife's money had been fully repaid to her. This contention seems to be based, not so much upon any evidence affirmatively showing that the husband repaid it (although he swears that he did), as upon a conclusion drawn from the claim that, considering the amount of money the evidence shows the wife had and the amount she admits having expended, the husband must necessarily have repaid what he used, else she would not have still had the amount now remaining to her. It is also contended that the wife's evidence did not show, with any degree of certainty, that the husband obtained the amount of money she claimed he got, nor that he used it for himself. It is true the wife was unable to specify with certainty the several separate amounts appropriated and used by her husband or the dates on which they were obtained, and she so alleged in her petition. This was because she allowed him to handle her funds and use her money, and trusted to him to look after her affairs for her from the date of their marriage in 1895 down to 1900, when they seemed to have begun to disagree or become unhappy in their marital relations. This continued until possibly 1913, when this suit was brought. A petition for divorce seems also to have been filed but was afterwards dismissed. The alleged obtention and use of the money by the husband was between July, 1895, and September, 1896. At the time of the trial, the evidence as to the precise amounts obtained, and when, was difficult to secure. The wife could not remember these particulars, and her bank account, as shown on the books kept by the bank, did not disclose this information, and would not do so, unless the checks thereon were produced showing what checks were drawn by her husband and for what purpose. When the estrangement began to manifest itself in 1900, the wife investigated and found that her husband had not repaid the moneys he had used, and she demanded that he do so. She also footed up the checks drawn thereon by her husband, and which had been returned by the bank, and which she had at that time, and there was evidence to the effect that these checks aggregated $800. There was also evidence tending to show that these checks were afterward taken from her trunk, and the wife testified to statements made by her husband, which clearly tended to show that he ransacked her trunk and took them. The suit was for $800, with interest from the several dates at which it might be found the husband obtained the money.

Under these circumstances, we do not think it was incumbent upon the wife to establish with particularity the precise amounts obtained by the husband, the dates thereof, or the purposes for which they were used. As the husband occupied a position of trust and confidence, it was only incumbent upon the wife to establish a prima facie case against him by showing, in a general way, that she...