Burrell v. Kaiser's Estate
| Decision Date | 21 March 1961 |
| Docket Number | No. 30697,30697 |
| Citation | 344 S.W.2d 622 |
| Parties | Maria BURRELL (Plaintiff), Respondent, v. ESTATE of Joseph KAISER, Deceased, Roy Honer, Executor (Defendant), Appellant. |
| Court | Missouri Court of Appeals |
Edward L. Dowd, Dowd & Dowd, William L. Mason, Jr., St. Louis, for appellant.
Charles A. Mogab, Donald S. Hilleary, St. Louis, for respondent.
BRADY, Commissioner.
On June 19, 1959, respondent filed a claim in the Probate Court of the City of St. Louis, as follows:
'Maria Burrell, being duly sworn states on oath that there is due her from the Estate of Joseph Kaiser, deceased, the sum of Ten Thousand Dollars ($10,000.00) on account of promissory note executed by the deceased for valuable services rendered by the claimant to the decedent at his request. A photostatic copy of said note being attached to this petition and marked 'Exhibit A."
In August of 1959, after proof of service of notice of the claim on the executor had been filed in the Probate Court, that court granted respondent leave to amend her claim by striking out of lines 5 and 6 thereof the words 'for valuable services rendered by the claimant to the decedant at his request', and inserting in lieu thereof, 'for value received'. The 'Exhibit A' referred to in the claim is respondent's Exhibit No. 1, which was admitted into evidence over appellant's objection. In September of that year, the court transferred this cause to the circuit court of the City of St. Louis, a demand for jury trial having been made, and the claim exceeding the statutory amount required for such a transfer, Section 473.420 RSMo 1949, V.A.M.S. The respondent made a written request for the '* * * transcript of proceedings in the matter of her claim against the estate of Joseph Kaiser, deceased, * * *' and the transcript before us recites that the requested transcript, with exhibits, was filed, although it is not a part of this record. As provided by statute, Sec. 473.420, supra, and Section 472.250 RSMo 1949, V.A.M.S., the circuit court, being then possessed of the cause, proceeded de novo, and by agreement of the parties a jury was waived. The appellant filed its answer to the claim, pleading (1) a denial of each and every allegation of the claim; (2) incompetency of the deceased at the time of his alleged acts and the alleged agreement; (3) failure of consideration for the alleged promise; (4) that the deceased was induced to sign by means of fraud, duress and undue influence; and (5) failure of the claim to state a claim upon which relief could be granted.
The respondent's witness, Anna Bogutski, a woman of 74 years of age, testified that she knew the deceased for about ten years prior to his death; that she had occasion to observe his handwriting '* * * about two times'; that she recognized the writing on Exhibit No. 1 as being that of the deceased, and that the signature thereon was his; that one of the occasions she saw him writing took place in March or April of 1957, and he was then writing in German. She was not asked about the other occasion.
The respondent's husband testified he had known the deceased for about five years; that after deceased's wife died the witness and respondent visited with him about two to three times a week in the evenings; that the first time he ever saw Exhibit No. 1 was on April 1, 1957, when his wife had it and showed it to him. Exhibit No. 1 was then offered into evidence and received, subject to the appellant's objections. The respondent then rested.
The appellant then offered the testimony of Dr. Parsons going to the question of the condition of the deceased's mind on April 1, 1957, the date of Exhibit A. The appellant then closed his case, and the respondent offered as rebuttal evidence the testimony of Mrs. Bogutski; Dr. W. S. Brown, the family doctor who treated the deceased; a Mr. Hoehn, cashier for a stock brokerage exchange with whom the deceased had dealings; the attorney who wrote the will of the deceased; and the attorney's secretary, who subscribed as a witness to the will. All of the testimony of these witnesses, and the evidence that decedent was found incompetent in the Probate Court of the City of St. Louis on June 19, 1958, and the stipulation filed by the heirs at law of the deceased dealing with the residuary clause of the will, go to the question of the mental capacity of the deceased as of April 1, 1957. The appellant has raised no point before us dealing with this matter, and we will not therefore review in detail the evidence given by the witnesses. Suffice it to say that the trial court committed no prejudicial error in its finding on the point, and we also so find.
The trial court entered its judgment on May 16, 1960. It found as facts that: (1) the deceased executed and delivered Exhibit A on April 1, 1957; (2) respondent gave valuable consideration for said instrument; (3) deceased was survived by respondent; and (4) on April 1, 1957, deceased was of sound mind and capable of managing his own affairs. As a declaration of law, the trial court found Exhibit A to be a valid enforceable contract supported by consideration. The trial court entered judgment for the respondent in the amount of $10,000 and costs. In a memorandum filed with its decision, the trial court stated that Exhibit A was '* * * not of a testamentary character but is of such a nature that a present action can be maintained thereon * * *'; that ; that appellant's medical evidence was incompetent because based largely upon hospital records not in evidence, and that in view of the testimony of respondent's witnesses, the court felt that the deceased was of sound mind at the execution of this instrument. On May 26, 1960, motion for new trial was filed by appellant and on the same day the respondent also filed a motion to amend the judgment to allow for interest at the rate of 6% from the date of death of deceased on March 14, 1959. The trial court sustained the respondent's motion to amend its judgment, and amended the same to allow for interest from August 26, 1959, the date of service of the notice of the claim, to the date of judgment on May 16, 1960, in the sum of $433; and overruled the motion for new trial. Timely notice of appeal was filed, and the appeal perfected. We heard the case during our December docket.
The appellant raises five points: (1) that the claim of the respondent fails to state a claim upon which relief can be granted, because plaintiff's 'Exhibit A' attached thereto is an integral and necessary part of the pleading and the exhibit is illegible, indecipherable, and cannot be read by one not familiar with the handwriting of the deceased and not an expert on handwriting, (2) that the trial court prejudicially erred in its declaration of law because Exhibit A is illegible; (3) that because that exhibit is illegible the trial court prejudicially erred in admitting it into evidence; (4) that there can be no recovery on the exhibit as a note because it is not an unconditional promise to pay, nor can there be any recovery on the exhibit as a contract because the phrase 'for value received' does not import consideration under the facts of this case and respondent adduced no evidence of any consideration; and (5) that the respondent pleaded and tried the case on the theory of a promissory note without any amendment, but although the trial court found she failed to prove a promissory note, it gave respondent judgment on another supposed cause of action at law, not pleaded and not asserted by respondent.
Our duty in reviewing a jury-waived action at law is well known. We are to review the law and the evidence as in suits of an equitable nature, giving due regard to the trial court's opportunity to judge the credibility of witnesses. We will not set aside the judgment unless it is clearly erroneous, but we are to make our own findings of fact and reach our own conclusions on the weight of the evidence; Section 510.310 RSMo 1949, V.A.M.S.; Rothweiler v. Callicott, Mo.App., 322 S.W.2d 151; Harry M. Fine Realty Co. v. Stiers, Mo.App., 326 S.W.2d 392; Missouri Digest, Appeal and Error, k994(3), 1008(2), 1122(1).
Exhibit A is reproduced below: Plaintiff's Exhibit No. 1.
We cannot agree that Exhibit A is illegible. While not clearly written, by any means, it can be read. Some of the words are misspelled, but they can be discerned. The exhibit reads as follows:
It follows that the appellant's first three allegations of error must be ruled adversely to it.
The respondent admits in her brief that this instrument is not a note because it is conditional on the respondent (payee) surviving the maker (deceased), but contends that Exhibit A constitutes an enforceable contract under the provisions of Section 431.020 RSMo 1949, V.A.M.S. Before ruling on this point, it is necessary to consider the appellant's contentions with regard to the action of the trial court in awarding judgment to respondent based upon its finding of fact and conclusions of law determining Exhibit A to be an enforceable contract supported by consideration.
The appellant contends that to do so is to award respondent a judgment on another supposed cause of action not pleaded nor asserted by her. The claim was clearly based upon an instrument in writing as the respondent's counsel stated in his opening...
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