Bentley v. Hurley
Citation | 299 S.W. 604 |
Decision Date | 07 November 1927 |
Docket Number | Mo. 15626. |
Parties | BENTLEY et al. v. HURLEY. |
Court | Court of Appeal of Missouri (US) |
Appeal from Circuit Court, Atchison County; John M. Dawson, Judge.
Action by Susie Bentley and others against Helen Hurley. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.
W. R. Little, of Tarkio, and A. M. Tibbels, of Mound City, for appellant.
Frazier & Mullins, of Rock Port, for respondents.
This is an action in two counts; the first for the conversion of the sum of $89.23 in money, and the second to replevy certain books and records of the Ladies' Center Grove Cemetery Association, a voluntary association of which plaintiffs are members. There was a verdict and judgment in favor of plaintiff on both counts. The defendant has appealed.
No witness was introduced on behalf of defendant. The facts as shown by plaintiffs' witnesses are as follows: The Ladies' Center Grove Cemetery Association is a voluntary association organized for the purpose of improving and beautifying the Center Grove Cemetery located in Atchison county. Its funds are raised by annual membership dues of 25 cents per member and the proceeds of a dinner held on Decoration Day of each year upon a tract of ground owned by the association at the cemetery. The association had been in existence about 24 years at the time this controversy arose and had operated under a written constitution and certain usages and practices. The constitution, which is the only written law of the society, provides that the officers of the association shall be a president, two vice presidents, a secretary and a treasurer, whose duties shall be "such as usually devolve upon those officers"; that the association should meet once a month and any woman might become a member by consenting to the constitution and contributing 25 cents. No provision is made as to the terms of the officers or for their removal, but under a practice of the association officers were elected in September to take office on the 15th day of the following April and held their positions for a period of one year. Defendant, in September, 1924, was duly and regularly elected to the office of treasurer of the association, taking office on April 15, 1925. At the latter time the sum of $87.48 was turned over to her by her predecessor in office, together with the books and records pertaining to the office of treasurer, mentioned in the second count of the petition. Defendant has never resigned her office in the association nor, in fact, formally withdrawn as a member and her dues are paid up. The answer pleads that she is still treasurer of the association.
Some disagreement arose between the members of the association, the exact nature of which is not disclosed in the record. It would appear that trouble started to brew shortly after defendant was elected treasurer, for at that time her husband sought to have the president elect (although she did not take office until the following April) call a meeting of the association for the purpose of forming a new society, telling her that she was then president with authority to act in the premises. This the president elect refused to do. Although owned by the original association, or the Ladies' Center Grove Cemetery Association, the title to the tract of land at the cemetery and the bank account of the association were in the name of the Center Grove Ladies' Cemetery Association, It would appear that the instigators of the move to organize the new association seized upon this circumstance to claim ownership of the bank account and land by organizing an association known as the Center Grove Ladies' Cemetery Association which was formed shortly after April 15, 1925, with a different president and secretary from that of the old society. (It will be noted that the difference in the names of the two associations is that in the original association the word "Ladies'" appears before the words "Center Grove.") The new society was organized with Mrs. Amick as president, Mrs. Lottie. Sharp as secretary and defendant as treasurer. It would appear that all of the officers of the new association were members of the old.
In June, 1925, the original society had a "call" meeting on its grounds at the cemetery, at which meeting it was ordered that "all bills be paid by written order to the treasurer, signed by the secretary and president," etc. It seems to have been the practice even prior to this time for the bills to be paid in this manner. In May, 1925, one Forest McGinnis did some work at the cemetery for the original association and received an order on the defendant, signed by the president and secretary, to pay him for the work performed by him. Defendant refused to honor this order or to pay the money, and, on or about May 11, wrote McGinnis as follows:
Mrs. Gage, a sister of the defendant, was a charter member of the old association and president of the "work committee" of that association, in which capacity she hired workmen to perform services at the cemetery. She testified that defendant was also a member of her committee and that she asked her shortly before May 16, 1925, to meet with the committee to hire workmen but that defendant refused to do so, giving no reason therefor, but on or about May 16, 1925, she received the following letter from the defendant:
Mrs. Gage testified that the regular meeting place of the Ladies' Center Grove Cemetery Association was at Westboro, and not Center Grove Cemetery; that the original association continues to hold its meetings at Westboro, but the new association meets at the Center Grove Cemetery.
On May 20, 1925, the original association held an adjourned meeting at the home of Mrs. McIntosh. The secretary's minutes of this meeting show the following occurred:
Defendant had no notice that any action seeking to declare her office vacant was to be taken at this meeting and she was not present. There were no charges and no trial. After this meeting Mrs. Bentley assumed to act as treasurer of the original association, demanding of defendant the money and books in her hands belonging to the association and informing her that the association had declared the office of treasurer vacant and had elected Mrs. Bentley to that position. Defendant refused to deliver either the money or the books but, so far as the record shows, assigned no reason for her action.
The original association had for years kept its money in the Farmers' Bank at Westboro, but on or about April 27, 1925, defendant changed it to the Tarkio Valley Bank at Tarkio, there being the sum of $81.98 to the credit of the association at that time. The evidence fails to show in whose name the account is now carried. Apparently after Mrs. Bentley was elected treasurer, the exact time of the occurrence not being shown in the record, Mrs. Amick, the president of the new association, delivered to Mrs. Bentley's husband the following note:
The tract of land and personal property mentioned in this notice were evidently the property of the original association. Each of the rival associations held a dinner at the cemetery on Decoration Day, 1925. It seems that defendant has never met with the...
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