Broderick v. Lucas' ex'R

• Decision Date: 04 January 1916
• Docket Number: No. 14235.,14235.
• Citation: 182 S.W. 154
• Parties: BRODERICK v. LUCAS' EX'R.
• Court: Missouri Court of Appeals

182 S.W. 154

BRODERICK v. LUCAS' EX'R.

No. 14235.

St. Louis Court of Appeals. Missouri.

January 4, 1916.

Appeal from St. Louis Circuit Court, Wilson A. Taylor, Judge.

"Not to be officially published."

Action by John J. Broderick against John B. C. Lucas' executor. Judgment for defendant, and plaintiff appeals. Affirmed.

R. E. Collins and Edward D'Arcy, both of St. Louis, for appellant, cited Harrison v. Phillips, 46 Mo. 520; Urbahn v. Martin, 19 Tex. Civ. App. 93, 46 S. W. 291; Tabor v. Cockrell (Tex. App.) 16 S. W. 786; Cramer v. Redman, 10 Wyo. 328, 68 Pac. 1003; Pabst Brewing Co. v. Milwaukee, 126 Wis. 110, 105 N. W. 563; San Bernardino Inv. Co. v. Merrill, 108 Cal. 490, 494, 41 Pac. 487; Long v. Barnett, 3 Iredell Eq. (38 N. C.) 631; Phillips v. Preston, 5 How. 278, 12 L. Ed. 152; Chouteau v. Allen, 70 Mo. 290, loc. cit. 335; First Nat. Bk. v. Payne, 111 Mo. 291, 20 S. W. 41, 33 Am St. Rep. 520; Semple v. Turner, 65 Mo. 696; Schneider v. Schiffman, 20 Mo. 571; Dibert v. D'Arcy, 248 Mo. 617, 154 S. W. 1116; Gould v. Fuller, 18 Me. 364; Armory v. Delamire, 1 Smith Lead. Cas. (11th Ed.) 679-713; Pomeroy v. Benton, 77 Mo. loc. cit. 86; and Barker v. Lewis, 152 Mo. App. 706, 131 S. W. 924.

Stewart, Bryaan & Williams and Benj. H. Charles, all of St. Louis, for respondent, cited Pollard v. Pitman, 37 Ind. App. 475, 77 N. E. 293; Faires v. Cockerell, 88 Tex. 428, 31 S. W. 190, 639, 28 L. R. A. 528; Singleton v. Townsend, 45 Mo. loc. cit. 380; Burton v. Rutherford, 49 Mo. 255; Williams v. Gerber, 75 Mo. App. 18, 30; Burrus v. Cook, 215 Mo. 496, 114 S. W. 1065; Quimby v. Varnum, 190 Mass. 211, 76 N. E. 671; Gross v. Davis, 87 Tenn. 226, 11 S. W. 92, 10 Am. St. Rep. 635; Camp v. Bostwick, 20 Ohio St. 337, 5 Am. Rep. 669; Burrus v. Cook, 215 Mo. loc. cit. 509, 114 S. W. 1065; McCune v. Belt, 45 Mo. 174; and Sanders v. Weelburg, 107 Ind. 266, 7 N. E. 573.

REYNOLDS, P. J.

Action on a note for $50,000, given by the St. Louis, St. Charles & Western Railroad Company, to the order of Robert E. Collins, with interest at 6 per cent per annum, which note was indorsed by J. B. C. Lucas and John J. Broderick, and further indorsed to the order of John J. Broderick by Robert E. Collins "without recourse." Averring that the total consideration for the $50,000 note had been furnished by plaintiff and that it was used in paying off an indebtedness in that amount due by the railroad company, and that the railroad company had not paid the note at maturity, it is further averred that plaintiff, then being the owner and holder of the note by indorsement and delivery, caused the bonds, collateral to the note, to be advertised and sold under the terms of the collateral note, and at that sale these bonds realized the sum of only $42,000, to which it is stated the note was entitled as a credit as of date June 15th, 1904. Averring that there remains due on the interest on the note the sum of $1775, together with the sum of $8000 on the principal, and that by reason of the premises John B. C. Lucas was and is indebted to plaintiff for one-half of that, that is $4887.50, together with interest thereon at the rate of 6 per cent per annum from June 15th, 1904, and, averring the death of John B. C. Lucas, and that by his last will and testament he had appointed William R. Faribault his executor, the will having been duly probated and Faribault duly qualified as executor and now acting under the will, judgment is prayed against the estate of Lucas and against Faribault, as executor, in the sum of $4887.50, with interest thereon at the rate of 6 per cent per annum from June 15th, 1904.

The answer, after a general denial, sets up two special defenses. First, that Broderick and Lucas, as co-makers with the railroad company of an original $450,000 in notes, given to the Commonwealth Trust Company were each liable to the full amount thereof to that company, but that as between themselves they were each liable for only one-half, and that when each paid $51,125 on the notes to the Commonwealth Trust Company each was discharged from his proportionate liability and neither acquired any right as against the other; that when Lucas and Broderick wrote their respective names on the back of the note in suit, while they created a liability to such persons as might have become bona fide holders for value of the note, they did not incur any such liability to one another.

The second affirmative defense is that if Lucas was ever in any way liable as maker to the holder upon the note referred to in the petition, still it was a liability merely as co-surety with Broderick and his liability to Broderick was merely that of a co-surety with Broderick, and that the liability of each was secondary to that of the railroad company, and that the bonds which were pledged as collateral security for the note, being the property of the railroad company, were so pledged as security, not only for the protection of those who might become the holders of the note but also for the benefit of Lucas, the person secondarily liable on the notes, if liable at all.

This second defense further sets up that the pretended sale by Broderick of the bonds, on June 15th, 1904, for $42,000, was in fact no sale but that the bonds still remain in the possession of Broderick, subject to a trust for the benefit of Lucas as his co-surety, and that the pretended sale had no effect to change the relation of Broderick as trustee, with respect of the bonds for the benefit of himself and his co-surety, and that after the pretended sale the bonds remained in the hands of Broderick as such trustee for himself and his co-surety, Lucas, and that Broderick continued to retain that relation toward Lucas as to them and so received the payment of $54,594.15 as the proceeds of the sale under the deed of trust securing the bonds. Praying for an accounting and that the note be adjudged to be paid by the sum so received by Broderick, there was a prayer for general relief.

To these special defenses a demurrer was interposed by plaintiff, which was overruled by the court before whom the cause was then pending.

A reply being filed generally denying the allegations of new matter and the allegations of the special defenses, the cause was tried to the court, a jury being waived, and at the request of counsel for plaintiff the trial court entered up a finding of facts and its conclusions of law, section 1972, Revised Statutes 1909, the latter concluding with a decree in favor of defendant on the issue joined that plaintiff was not entitled to the relief prayed for.

The court further found that defendant was not entitled to the affirmative relief prayed for in his answer and plaintiff was dismissed as to that. To the finding of facts and conclusions of law plaintiff duly excepted and, filing his motion for a new trial and that being overruled, has duly appealed to our court.

Here the learned counsel for appellant make 10 assignments of error. First and second, as to error in admitting competent, relevant testimony, as it is said. Third, error in including in the finding of facts matters and things concerning which no testimony was offered or given on the trial. Fourth, the trial court erred in adopting as the finding of facts by the court a document prepared by counsel for respondent in place of writing out and making the court's own finding. Fifth, that the trial court erred in finding as a fact that Broderick and Lucas agreed with each other to retain equal interests in the stock of the Wellston, Creve Cœur & St. Charles Railroad Company, or that they agreed as between themselves to forward the railroad enterprise as co-partners, there being no evidence, as it is alleged, to sustain such finding. Sixth, that the court erred in finding as a fact that Broderick and Lucas undertook the construction of the railroad between Wellston and St. Charles, there being no evidence, as it is alleged, to sustain that finding. Seventh, that the trial court erred in finding as a conclusion of law that the sale by Broderick of bonds on June 15th, 1904, constituted no sale whatever but that the bonds still remained in the possession of Broderick subject to the trust in favor of Lucas as one of the persons secondarily liable, if liable at all on the note, and that the sale had no effect to change the relation of Broderick with respect of bonds, or to change the relation of Lucas with respect to them, and that the bonds remained as security in the hands of Broderick for the payment of the notes and that they so continued to remain until the time when Broderick received the payment of $54,594.19 on account of the bonds from the trustee in the mortgage securing the bond. Eighth, ninth and tenth, that the court erred in finding as a conclusion of law that plaintiff was not entitled to recover, and in entering judgment for respondent awarding costs against appellant, and that the finding was for the wrong party.

While these ten assignments of error are made, the only ones argued are under the first, averring improper exclusion of certain testimony offered by plaintiff, and on the points practically covered by the seventh, eighth, ninth and tenth assignments.

On consideration of the evidence in the case we find no reason to differ from the finding of facts made by the learned trial judge. The facts found by him are either established by affirmative evidence in the case or are facts naturally and properly to be inferred from the testimony, and that finding has the effect of a special verdict.

We can do no better, therefore, than to set out that finding as made by the learned trial judge, which with a few verbal changes, is as follows:

"Since the institution of this suit John B. C. Lucas has departed this life, leaving a will wherein and whereby William R. Faribault was duly appointed executor; that will was duly probated in the Probate Court in the city of St. Louis, Missouri, and thereafter, on the 16th day of September, 1908...