Boatmen's Bank v. Clarahan
| Decision Date | 17 July 1926 |
| Citation | 286 S.W. 146,220 Mo.App. 332 |
| Parties | BOATMEN'S BANK, APPELLANT, v. JOHN CLARAHAN, RESPONDENT. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of New Madrid County.--Hon. H. C Riley, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Sharp & Baynes for appellant.
No brief for respondent.
(1) The court should have instructed the jury to find the issues for the plaintiff for the amount sued for as requested by plaintiff at the close of the whole case. 1st. The matters pleaded in the answer are subjects of counterclaim for an unliquidated damage, if at all, and the evidence in support thereof was no defense to this cause of action. Bauerdorf v. Wall Paper Co., 203 S.W. 220; Estate Co. v. Arms Co., 110 Mo.App. 406; Volker v. Stone, 181 Mo.App. 311; Brokerage Co. v. Campbell, 164 Mo.App 8; Fulton v. Fisher, 239 Mo. 116. 2nd. Claim or cause of action pleaded by defendant in his answer was barred by special Statute of Limitations, not having been exhibited within one year after granting of letters of administration on Hugh O'Donnell estate. R. S. 1919, sec. 182; Waltemar v. Schinck's Estate, 102 Mo.App. 139; Hinshaw v. Warren, 167 Mo.App. 370; Bramell v Adams, 146 Mo. 84; Bukman v. Richardson, 150 Mo. 430. 3rd. The defendant by his silence and neglect in exhibiting his claim or demand, if any he had against Hugh O'Donnell estate, is now estopped from asserting same in this suit. Davis v. Lea, 239 S.W. 826; Anthony v. Commission Co., 260 S.W. 98; 21 C. J., pages 1166-1167-1168, secs. 169-170-172-173. And the doctrine of equitable estoppel or estoppel in pias is applied in courts of law. Clauson v. Larmon, 21 S.W. 913; Cavender v. Johnson & Son, 212 S.W. 53. 4th. There is no evidence at all showing that the cotton could have been sold sooner than it was, or at any time, but the evidence does show no regular established market at all times, but to sell cotton is a matter of bargain and sale. 5th. Hugh O'Donnell had right under the laws to sell the cotton when he did, having made advances, and demanded a repayment of such advances. Howard et al. v. Smith, 56 Mo. 314; Phillips v. Scott, 43 Mo. 86; Given et al. v. Lemoine, 35 Mo. 110. (2) The court should not have permitted the defendant to testify as to the grade of cotton, the other party to the transaction being deceased. R. S. 1919, sec. 5410; Eaton v. Cates, 175 S.W. 953; Burns v. Ice & Fuel Co., 187 S.W. 147; Elsea v. Smith, 202 S.W. 1073; Scott v. Scott, 265 S.W. 865; Bank v. Hirler, 266 S.W. 1032. (3) Evidence of what other parties sold cotton for should not have been allowed, and does not establish a market value. Fargason Co. v. Coleman, 272 S.W. 1003.
As assignee of all the assets and claims of the estate of Hugh O'Donnell, deceased, plaintiff sued to recover on account for money advanced on cotton. The cause was tried to a jury and resulted in a verdict and judgment for defendant. In due course plaintiff filed motion for a new trial, was overruled and appealed.
Prior to his death February 27, 1920, Hugh O'Donnell was a cotton factor in the city of St. Louis. December 16, 1918, defendant shipped twenty-six bales of cotton to O'Donnell to be sold by him on the St. Louis market. At time of shipment defendant drew on O'Donnell for $ 2600 which draft was honored and paid. In other words O'Donnell advanced the sum of $ 2600 on the twenty-six bales. O'Donnell died, with this cotton yet on his hands unsold. His sister, Catherine O'Donnell, was appointed administratrix of the estate and on January 29, 1921, sold the twenty-six bales at six cents, and after deducting charges the net amount for the twenty-six bales was $ 484.35. This amount was applied on the amount advanced and after this credit there was yet due including interest the sum of $ 2509.94. It is this claim of the O'Donnell estate against defendant which, among others, was assigned by the administratrix to plaintiff and upon which plaintiff's cause is founded.
Catherine O'Donnell was appointed administratrix of the Hugh O'Donnell estate by the probate court of the city of St. Louis on March 3, 1920, and notice thereof was duly published. The Hugh O'Donnell estate was hopelessly insolvent. O'Donnell's indebtedness to plaintiff bank at the time of his death was in excess of $ 90,000. To secure this, plaintiff bank held warehouse receipts for cotton which had been shipped to Hugh O'Donnell to be by him sold for the account of the shipper. The cotton market at the time of O'Donnell's death was such that the value of the cotton shipped to him was for less than he had advanced thereon and far less than his indebtedness to plaintiff bank from whom O'Donnell obtained the money he advanced.
March 18, 1921, and at the March term of the probate court of the city of St. Louis the administratrix in lieu of a settlement filed a statement in which the condition of the estate was given. In this statement the administratrix stated that because of the condition of the estate and plaintiff bank's relations therewith she contemplated turning over to said bank all assets and claims of the estate, less last illness and funeral expenses. June 30, 1921, and at the June term of the probate court the administratrix filed a statement in lieu of a final settlement. This final statement went into detail, and asked that said statement be accepted as final settlement and that she be directed to turn over to plaintiff bank all assets and claims of the estate remaining in her hands. September 14, 1921, at the September term of the probate court, an order was made authorizing the administratrix to assign to plaintiff bank. This assignment was made and thus the bank became the owner of the O'Donnell account or claim against defendant at bar for the money advanced on the cotton shipped December 16, 1918.
Defendant's defense is that Hugh O'Donnell was negligent in endeavoring to sell defendant's cotton; that had O'Donnell exercised that diligence incumbent upon a cotton factor to sell, defendant's cotton could have been sold for a much greater amount than was advanced. This was the issue submitted to the jury and as stated the finding was for the defendant. A counterclaim was pleaded and judgment over asked, but was abandoned.
From the outset plaintiff bank contended that any claim that defendant had for damages for the alleged negligent failure of Hugh O'Donnell to sell said cotton was barred by the special one year Statute of Limitations. [Sec. 182, R. S. 1919.] We have reached the conclusion that plaintiff's contention in this respect is correct, therefore, it is not necessary to consider other assignments.
Defendant's cotton was shipped and the $ 2600 advanced December 16, 1918. Hugh O'Donnell died February 27, 1920. Catherine O'Donnell was appointed administratrix March 3, 1920, and notice duly published. Defendant's cotton was sold January 29, 1921, and the account sale showing amount received...
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