Bohle v. Sternfels, 43333

Citation261 S.W.2d 936
Decision Date09 November 1953
Docket NumberNo. 1,No. 43333,43333,1
CourtUnited States State Supreme Court of Missouri

Champ C. Stonebraker, George J. Bagot, Clayton, for appellant.

No attorney for respondent.

COIL, Commissioner.

Plaintiff-appellant sought to recover $8,425.35, money allegedly loaned to defendant-respondent. The petition was in six counts. At the close of plaintiff's evidence, the trial court directed verdicts for defendant on counts 1 to 5 inclusive. The jury returned a verdict for plaintiff on count 6 for $100 (the amount sought), and plaintiff has appealed from the final judgment. He contends that there was sufficient substantial evidence adduced on each of the five counts to make submissible issues. Defendant's trial counsel withdrew prior to the time for filing briefs on appeal, and defendant has filed no brief.

The first four counts alleged these loans to defendant: December 1947, $3,000; during 1948, $1584; from January 1949 to July 1950, $2,691.33; October 1949 and April 1950, $250. Count 5 alleged that, at the instance and request of defendant, plaintiff expended $800 for windows, screens, a water heater, and repairs on the house hereafter mentioned. Plaintiff alleged in each count a promise to pay, a demand, and refusal. Defendant's answer was a general denial.

The record, although short, is somewhat confusing and difficult to analyze. Despite, however, the unsatisfactory state in which we find the record, we are of the opinion that plaintiff made a submissible case on each of counts 1 to 5 inclusive.

All of plaintiff's decisive testimony went into the record without objection. From his testimony, considered in the light most favorable to him and giving him the benefit of all reasonable inferences, the jury could have found that: In November 1947, plaintiff loaned defendant $3,000 to be used by her as a down payment on a tesidence under an agreement whereby the $3,000 was to be repaid to plaintiff when defendant sold the residence; in January 1948, plaintiff loaned defendant $1,548 for the purpose of making a payment then due on the residence, which amount defendant promised to repay to plaintiff when the residence was sold; from January 1949 to July 1950, plaintiff loaned defendant $2,691.33, the difference between the monthly house payments when due and the money defendant had available to make those payments, all of which, by agreement, was to be repaid to plaintiff when the house was sold; at defendant's request, plaintiff made two payments on the residence, one in October 1949 and the other in April 1950, totaling $250, which total amount defendant agreed or had agreed to repay when the residence was sold; from December 1947 to January 1951, plaintiff, at the request of defendant, expended $235 for lumber, screens, pipe, and a grill, which amount defendant promised to repay to plaintiff when the residence was sold; defendant advised plaintiff in 1950 or 1951 that she had sold the residence for $14,000, whereupon plaintiff demanded payment of all the sums theretofore loaned to her in accordance with their agreements as to payment, and defendant refused and failed to repay any portion of the money loaned.

Now, despite the fact that it was developed on cross-examination that many of plaintiff's statements on direct were his conclusions and were not based upon detailed business records, this testimony, as we have noted, went in without objection and its weight was for the jury.

The only witness other than plaintiff who testified was plaintiff's pastor, who said that, at plaintiff's request, on six or eight occasions he discussed with plaintiff and defendant the matters in dispute between them. The first time was approximately in May 1951 and the last some time in the fall of 1951. The witness, without objection, testified as follows:

'Mr. Bohle came to me, of course, at first as my member, and he told me of the case and asked me to have a conference with her, that Mrs. Sternfels was also a member of the Lutheran Church, and I asked Mr. Bohle to drop his law suit against her, and it was at my persuasion that he did it. He told me that he had loaned Mrs. Sternfels money for the purchase of the two pieces of property that have been in question. Mrs. Sternfels admitted that Mr. Bohle had advanced both of these purchases, but where Mr. Bohle maintained it was a loan Mrs. Sternfels maintained it was a gift.

Q. Now, what else was the subject of the conversation on the last occasion? A. An attempt to reconsile the differences between the two people, an attempt to find a middle groove to suit both Mr. Bohle and Mrs. Sternfels, a compromise of some sort, Mrs. Sternfels would concede to give Mr. Bohle a part of what Mr. Bohle claimed. It concerned an agreement that had been drawn up by someone, whereby Mrs. Sternfels would give Mr. Bohle a certain sum of money provided Mr. Bohle would leave her alone.

'Q. And did she agree to give him any money? A. A document had been prepared stating that a certain amount of money would be given Mr. Bohle.

'Q. How much was to be given to Mr. Bohle? A. That document, in which the three of us spoke together, mentioned twenty-five hundred dollars.

'Q. And was that agreement ever consummated, do you know? A. To my knowledge, no.

'Q. And do you know why it wasn't consummated? A. Mr. Bohle objected to certain paragraphs in the document as not protecting his interests sufficiently, as being too one-sided, and all for her protection and nothing for him.'

Although plaintiff had alleged in his petition that certain of the loans were to be repaid on demand, his proof clearly showed that no money was due him from defendant unless and until the house was sold. The proof is not as satisfactory as it should be as to whether, and if so when, the house was sold. Plaintiff testified at one place: 'Did you ever ask her to repay that money to you? A. Not until the house was sold.

'Q. When was the house sold? A. I forget just when it was. * * * It was sold in 1951, I am not sure, and she called up and I demanded the money, and she said she had an offer on the house and was going to sell it, and up to that time there was no real money, she didn't owe anything.' At another place, plaintiff testified:

'Q. When did you make a demand on her to pay all this money back with the exception of the hundred dollars [$100 was the amount alleged to be due in count 6, with which we are not here concerned]? A. She called up in '50 and said she had sold the house for fourteen thousand dollars and I said 'Where do I come in'? and she said 'You don't'.

'Q. Did you, at that time, make a demand on her for the money? A. Yes, I wanted the money when she sold the house.

'Q. Did you receive any money at all? A. No, sir.' In view of plaintiff's theory that his agreement with defendant required her to repay the money only when the house was sold, it was important for plaintiff's proof to show with certainty that the house had been sold and the time of the sale. While plaintiff's proof leaves the matter somewhat indifinite, nevertheless, in ruling the question of whether the trial court correctly directed verdicts for defendant, we hold that plaintiff's proof was such that the jury reasonably could have found that defendant sold the house in 1951 for $14,000.

A question important to the determination of this appeal concerns the effect of two deeds and plaintiff's testimony concerning the transactions of which they were a part. These deeds were marked defendant's exhibits 8 and 9, and, while not offered in evidence, were considered by the trial court and, in large part, formed the basis for his direction of verdicts for defendant on counts 1-4 inclusive. Exhibit 8 was a quitclaim deed dated and acknowledged January 6, 1950, recorded January 9, 1950, by which defendant conveyed the property to one Minnette Bruns for one dollar 'and other valuable considerations'. Exhibit 9 was a quitclaim deed dated, acknowledged, and recorded on January 10, 1950, whereby Minnette Bruns conveyed the property back to defendant. Plaintiff's testimony concerning these deeds was such that it may not be satisfactorily summarized. We, therefore, set forth lelow all of plaintiff's testimony which related to these deeds and the transaction evidenced by them.

'Q. Did Mrs. Sternfels ever deed you the property on Russell Avenue? A. No.

'Q. Never did? A. Not to me.

'Q. Did she to someone for you, to someone else named for your benefit? A. Yes.

'Q. I will show you Defendant's Exhibit '8' and ask you if it is not a fact that she deeded the Russell Avenue property to you in someone else's name, is that right? A. I didn't have anything to do with that, it was between her and Mr. Gross, I don't know.

'Q. But did she deed the property for your benefit? A. I don't know.

'Q. You took the position you owned the property, didn't you? A. It wasn't deeded to me.

'Q. Did you take the position you owned the property? A. I paid for it, I took it for granted it was mine.

'Q. It was in Mrs. Sternfel's name? A. Yes.

'Q. You wanted it in her name? A. Not necessarily.

'Q. Didn't you ask for it to be taken out in her name? A. I talked to Mr. Gross and he said he would have it signed over to someone else.

'Q. Didn't you say you didn't want it in your name because you were a married man? A. Yes.

'Q. You did want the property? A. I wanted the money.

'Q. Doesn't this deed give you the property back in the name of a third person? A. Yes.

'Q. I mean Defendant's Exhibit '8'? A. Yes.

'Q. After you got the property from Mrs. Sternfels I will ask you if it isn't a fact that you insisted that she have it back again, and if you didn't have Defendant's Exhibit '9' made out to Mrs. Sternfels? Isn't that right? A. That's right.

'Q. And, notwithstanding that you owned the property at one time, you want the jury to believe you didn't get that three thousand dollars back, is that right? A. That's right.

'Q. You didn't pay Mrs....

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