Cape Girardeau Bell Telephone Co. v. Estate of Hamil
| Decision Date | 06 February 1911 |
| Citation | 134 S.W. 1103,153 Mo.App. 404 |
| Parties | CAPE GIRARDEAU BELL TELEPHONE COMPANY, Respondent, v. THE ESTATE OF T. J. HAMIL, Deceased, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Cape Girardeau Court of Common Pleas.--Hon. R. G Ranney, Judge.
Judgment reversed.
L. L Bowman and Frank Kelly for appellant.
(1) The telephone company knew every fact connected with the accounts when it paid them, and of their own will made a voluntary payment with full knowledge, no fraud, no duress, and it cannot recover. American Brewing Co. v. St. Louis, 187 Mo. 367; Teasdale v. Stoller, 133 Mo. 645; Stoll ex rel. v. Stenetticet, 92 Mo.App. 220; Campbell v. Clark, 44 Mo.App. 249; Meir v. Meir, 88 Mo. 566; 30 Cyc. 1298.
Oliver & Oliver for respondent.
(1) The first, if not the only question in this case, is: Was the assignment of this claim from the under taker Hoch to the respondent, a purchase of it, or was it a payment of it? If it was a purchase of the claim the finding of the lower court was correct and its judgment should be affirmed. Vanstandtz v. Hobbs, 84 Mo.App. 631; Swope v Leffingwell, 72 Mo. 348; Campbell v. Allen, 38 Mo.App. 27; Campbell v. Roeder, 44 Mo.App. 324. (2) Where one owing a note or debt pays the money the transaction is presumed to be a discharge of the debt; but where one, not the debtor or payor pays the holder or the creditor and takes the obligation with an endorsement or assignment, the transaction is presumed to be a purchase; and possession of the instrument with the endorsement entered thereon is prima facie ownership and the fact that the note is past due will not alter or change this presumption. Marshall v. Meyers, 96 Mo.App. 643; Campbell v. Allen, 38 Mo.App. 27. (3) The trial court sitting as a jury in this case found from the evidence adduced that respondent purchased the account from the undertaker and took an assignment of it, and that it was not a payment of the account. This court will not discredit nor disturb that finding if there is any substantial testimony to support it. Pickens v. Railroad, 125 Mo.App. 674; Everman v. Eggers, 106 Mo.App. 732; Veale v. Greene, 105 Mo.App. 182; Garner v. Railroad, 128 Mo.App. 408. (4) Where services are rendered by one for another, they are presumed to be for hire and not gratuitous, and this principle has been applied in making a husband liable for the funeral expenses of his wife, although he was beyond the seas at the time of her funeral; and also in making an estate liable for the funeral expenses of the deceased where the executor neglected to give the necessary orders for the funeral. Lawson on Contracts (2 Ed.), 53 and 51; Allen, Adm., v. College, 41 Mo. 308; Hart v. Hart's Adm., 41 Mo. 446; Coleman v. U.S. 152 U.S. 96; 1 Parson on Contracts (6 Ed.), 493.
Thomas J. Hamil was an employee of plaintiff, and was killed by coming in contact with a live wire in July, 1907. The plaintiff soon thereafter paid the funeral expenses of the deceased. J. A. Hamil was appointed administrator of the estate of deceased and later brought suit against plaintiff and recovered judgment for $ 1875, damages on account of the death of Thomas J. Hamil. Plaintiff paid this judgment, then about November 1, 1909, secured an assignment to it of the accounts for the funeral expenses paid by it over two years prior thereto, and presented these accounts to the court of common pleas of Cape Girardeau, which exercised probate jurisdiction, for allowance against the estate of Thomas J. Hamil. The account was allowed and the administrator has appealed.
The only question to determine here is whether the finding of the court is supported by substantial testimony. If it is so supported the court's finding is binding upon us.
Plaintiff contends that it purchased the accounts, while defendant insists that plaintiff voluntarily paid the account and did not purchase it. It is conceded that plaintiff paid to the creditor the amount of the claim and that no assignment was taken or asked for at the time. The only thing said at the time by the party making the payment to the creditor was that if the family should offer to pay the bill for him to accept it. Did this show a purchase of the account or a payment of it? To our mind it...
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