Brooks v. Brooks

• Citation: 208 S.W.2d 279,357 Mo. 343
• Decision Date: 12 January 1948
• Docket Number: 40431
• Parties: Lorene Brooks, Appellant, v. Vernon C. Brooks
• Court: United States State Supreme Court of Missouri

208 S.W.2d 279

357 Mo. 343

Lorene Brooks, Appellant, v. Vernon C. Brooks

No. 40431

Supreme Court of Missouri

January 12, 1948

Rehearing Denied February 9, 1948.

Appeal from New Madrid Circuit Court; Hon. L. H. Shult Judge.

Reversed and remanded (with directions).

J Grant Frye and Gerald B. Rowan for appellant.

(1) Under all the facts adduced, whether or not the court considers conversations between the parties, a case of joint adventure was made out by appellant; and the judgment of the court should be that respondent be required to account to appellant for one-half of all profits and property of the joint adventure, with interest. Neville v. D'Oench, 34 S.W.2d 491; Denny v. Guyton, 40 S.W.2d 562. (2) This is an equity case and the appellate court having determined appellant made out a case, will now try the case de novo on appeal, and will weigh and consider the testimony to determine whether appellant established by a preponderance of the evidence a case of a joint adventure between her and respondent. Shumate v. Hoefner, 347 Mo. 391, 147 S.W.2d 640; Selle v. Selle, 337 Mo. 1234, 88 S.W.2d 877; Security Savings Bank v. Kellems, 9 S.W.2d 967. (3) In this action for an accounting between husband and wife based upon an alleged contract or agreement between husband and wife to participate as co-adventurers in a joint undertaking or joint adventure, the testimony of appellant (wife) relative to the conversations between appellant and respondent (husband) which led up to and were a part of the alleged contract or agreement, is admissible as an exception to the general rule that communications between husband and wife are ordinarily privileged and not admissible. Moeckel v. Heim, 134 Mo. 576, 36 S.W. 226; Henry v. Sneed, 99 Mo. 407, 12 S.W. 663; Darrier v. Darrier, 58 Mo. 222.

J. V. Conran, L. D. Joslyn and Haw & Haw for respondent.

(1) Although this is an equity case and this court will try it de novo on appeal, great weight will be given to the chancellor's finding of facts. Miller v. Lloyd, 204 S.W. 257, 275 Mo. 35; Frank v. Davis, 41 S.W.2d 830; Beyer v. Conroys, Inc., 32 S.W.2d 763; Lambert v. Rodier, 194 S.W.2d 934. (2) In this case appellant seeks, in effect, to establish a resulting trust, have deeds to real estate, conveying title to respondent, set aside, and title to a half interest therein vested in her, as well as to establish a partnership in other property held by respondent. To establish her case requires evidence so clear, cogent and convincing as to convince the chancellor's conscience beyond any serious question. The evidence in this case falls far short of that requirement. Prasse v. Prasse, 77 S.W.2d 1001; Medlin v. Morris, 243 Mo. 260, 148 S.W. 85; Dixon v. Dixon, 181 S.W. 84; Miller v. Miller, 277 S.W. 922; Felsenspan v. Pence, 168 S.W.2d 1074; Scherbaum v. Mersman, 191 S.W.2d 671; State ex rel. McCrory v. Bland, 197 S.W.2d 669. (3) Such services as appellant performed were only such as respondent, as her husband, was entitled to have performed and are no evidence of a joint venture. Plummer v. Trost, 81 Mo. 425; Farmers & Traders Bank v. Kenrick, 108 S.W.2d 65; Hendricks v. St. Louis Transit Co., 124 Mo.App. 157, 101 S.W. 675. (4) The subpoena duces tecum was issued without authority and contrary to the express provisions of the statute and respondent had a right to object thereto. Laws, 1943, p. 353, Sec. 86 (Pocket Parts, 3 Mo. St. Anno. 1939, p. 36, Sec. 847.86). (5) The action of the chancellor in excluding the evidence of confidential conversations between appellant and respondent (husband and wife) was proper. In re Ozia's Estate, 29 S.W.2d 240; Grott v. Grott, 249 S.W. 55; Kistner v. Kistner, 89 S.W.2d 106; O'Neil v. O'Neil, 264 S.W. 61; McPheeters v. McPheeters, 227 S.W. 872; Allen v. Allen, 60 S.W.2d 808. (6) The part of the property involved in this suit that is owned by appellant and respondent as tenants by the entirety could not be partitioned and no accounting as to same could be had, since neither has any interest separate and apart from the other, but both own the entire interest or title. Ahmans v. Kemper, 119 S.W.2d 256; A. J. Meyer & Co. v. Schulto, 189 S.W.2d 183; Plumbing Supply Co. v. Taylor, 237 S.W. 900; Otto F. Stifel's Union Brewing Co. v. Saxy, 201 S.W. 67, 273 Mo. 159; Bank v. Fry, 68 S.W. 348, 168 Mo. 492. (7) Personal property acquired in the name of husband and wife, as such, is also held by them as tenants by the entirety. Simon v. St. Louis Union Trust Co., 139 S.W.2d 1002, 346 Mo. 146; Bank v. Fry, 168 Mo. 492; Lomax v. Cramer, 216 S.W. 575, 202 Mo.App. 365; Ryan v. Ford, 151 Mo.App. 689, 132 S.W. 610.

Bohling, C. Westhues and Barrett, CC., concur.

OPINION

BOHLING

This is an action by Lorene Brooks, the wife, against Vernon C. Brooks, the husband (hereinafter designated by their christian names), in which she seeks an accounting of the proceeds of an alleged joint adventure between them, a receiver, and general equitable relief. She charged that some of the proceeds of the joint adventure were applied to the purchase of certain described real estate and prayed that she be decreed a joint owner of the same, and, as we read the record, it indicates the amount in dispute exceeds $ 15,000. A trial resulted in the dismissal of plaintiff's bill. She appealed to the Springfield court of appeals and that court transferred the review proceedings here on the ground title to real estate was involved.

Lorene and Vernon were married October 24, 1937, she being 19 and he 36 years of age. She had been clerking at a confectionery. He was a deputy sheriff and township constable at Charleston, Mississippi county, Missouri. He had property worth perhaps $ 200 to $ 400. They were unable to live on what he made as constable after he quit as deputy sheriff.

Vernon's father, E. R. Brooks, owned a liquor store and they would help him. It was near a grocery, meat, and package liquor store operated by Fred Long. About September, 1938, Vernon learned that Long would sell. Lorene testified he asked her how she would like to go into business "down in negro town." She knew E. R. Brooks had to live with his business and at first was undecided because it was not the proper place for white people to live. E. R. Brooks testified it was an undesirable place for a white woman. Long was willing to sell at a little above "inventory" price and they estimated $ 1500 would purchase his business. Lorene testified they discussed the matter and Vernon said he would buy the liquor license in his name and they would go down into negro town and work together until they got started and then move out; that the business would be "ours" and later they would put their money in a joint account; it would be "mine and his business and we would work together." They discussed how they might raise the money. At her suggestion, they decided to see Roy Buckner of the Moon Distributing Company, at Cape Girardeau, Missouri.

Vernon testified that nothing was said between him and his wife about joint names, joint account, sharing in halves, or about Buckner. He said his father advised him to buy Long's business "or he would buy it if I wanted it"; that he may have said something to Lorene about it but did not consult her, and never had any conversation with Buckner about Lorene and he buying the store. He admitted his wife and he had an "understanding they would live and work in the negro district until they made some money and then would move out."

Lorene testified she and Vernon went to see Buckner at Cape Girardeau without delay and in a few days he told them they could have the $ 1500; that Vernon told Buckner he was not borrowing the money himself but that both of them were buying the store and both of them were borrowing the money. Vernon testified he and his father went to see Buckner at Cape Girardeau; that Lorene did not accompany them; and that Buckner, at that time told them to take the inventory, let him know the amount of money and he would bring it down. E. R. Brooks testified Buckner had promised to let him have the money if he bought Long's place; that he had another person find out that Long would sell and this person tried to get the money from Buckner but Buckner came to him, witness, and Vernon bought it; and that Lorene did not make the trip with them to see Buckner about borrowing the money.

Buckner testified as follows: The Moon Distributing Company, through him, sold E. R. Brooks merchandise. He met Lorene and Vernon at E. R. Brooks' store and about a month later they told him in the presence of E. R. Brooks that they could buy the Long store. The next day they came to Cape Girardeau to see about borrowing the money. He was certain Lorene and Vernon were there and was of opinion but was not sure that E. R. Brooks was with them. In a day or two he told Vernon and Lorene he would let them have the the $ 1500. He testified that he was making the loan to both of them; that Lorene and Vernon were buying the store; that both of them were going to work, operate the store, and pay back the money. Buckner's conviction for transporting "hootch, moonshine, corn whiskey" was shown.

The inventory took four days and they soon realized $ 1500 would not purchase the property. The final price was $ 2882. $ 1500 of this was represented by a Buckner check. Buckner was at the Long store when the inventory was being finished. He testified E. R. Brooks owed him for merchandise that he collected $ 500 from him and turned it over to Vernon and Lorene. Vernon testified he received the additional $ 500 cash from Buckner and $ 882 from E. R. Brooks, which amount Buckner helped count out from a cigar box in the father's store, but he did not know where buckner got the $ 500. E. R. Brooks testified he counted...