Carden v. Thompson

• Citation: 62 S.W.2d 882
• Decision Date: 14 July 1933
• Docket Number: No. 29229.,29229.
• Parties: GEORGE E. CARDEN and ANDERSON T. HERD, Appellants, v. SARA E. THOMPSON and MARCELLA THOMPSON BERKLEY, Administratrices of the Estate of JOHN W. THOMPSON.
• Court: Missouri Supreme Court

62 S.W.2d 882

GEORGE E. CARDEN and ANDERSON T. HERD, Appellants, v. SARA E. THOMPSON and MARCELLA THOMPSON BERKLEY, Administratrices of the Estate of JOHN W. THOMPSON.

No. 29229.

Supreme Court of Missouri, Division Two.

July 14, 1933.

Appeal from Circuit Court of City of St. Louis. — Hon. Robert W. Hall, Judge.

REVERSED AND REMANDED (with directions).

Fordyce, Holliday & White and Walter R. Mayne for appellants.

(1) Denial of plaintiffs' application for leave to amend their claim before trial so as to correct an erroneous duplication of credit items, was reversible error and an abuse of discretion on the part of the court, even though the result of the amendment would have been to increase the claim as ruled upon in the probate court; because the amendment was required in the interest of justice and did not change the nature of the demand. R.S. 1919, secs. 197, 1276, 1274, 1278, 1289; Carr v. Moss. 87 Mo. 450. (2) It was an abuse of discretion for the court to strike out plaintiffs' answer and reply, either on the ground that they were filed in vacation of the court, although before trial, or on the further ground that matters pleaded therein were not available. Authorities under Point 1; Wencker v. Thompson, 96 Mo. App. 59, 69 S.W. 743. (3) Defendants' counterclaim for breach of contract alleged to have occurred on or before August 1, 1918, is barred by the five-year Statute of Limitations, the claim thereon not having been asserted until March 7, 1927, when set up in defendants' counterclaim filed in the probate court; the statute was not (a) tolled by plaintiffs' non-residence in Missouri, nor (b) waived by their demand of damages based on conversion. R.S. 1919, sec. 1317; Orr v. Wilmarth, 95 Mo. 216; R.S. 1919, sec. 1344. (4) The judgment in favor of defendants on their counterclaim is not founded on the pleadings and therefore must be reversed, for (a) defendants' plea of rescission is wholly repugnant to the counterclaim based on affirmance of the same contract; (b) defendants in their pleading expressly elected the plea of rescission if inconsistent with said counterclaim. Bell v. Campbell, 123 Mo. 1, 25 S.W. 364, 45 Am. St. Rep. 505; Stoutzenberger v. Lamb, 190 S.W. 963; Howe v. Fulton, 225 Ill. 589; Societa Italiana v. Sulzer, 19 N.Y. Supp. 824; Schneider v. Fairmon, 128 Ark. 425, 194 S.W. 252; McClanahan v. West, 100 Mo. 322, 13 S.W. 676. (5) By Thompson's purchase of the Atlantic Towing Company's interest in the Gut Heil, on April 8, 1918, pursuant to instructions from plaintiffs to buy the same for them, plaintiffs became, as to Thompson, owners of an undivided half interest in the vessel and Thompson became their creditor for money advanced on their account in such purchase to the extent of whatever sum had been agreed upon between them, either $352,000, as plaintiffs assert, or $428,000, as defendants now assert and the court found to be the fact. (6) By accepting benefits under his contract with plaintiffs, to-wit, partnership services and money remittances toward expense of repairing and reconditioning the vessel, for a period of more than three months, during which he was fully aware of plaintiffs' alleged default in payment of the purchase money advanced by him, Thompson affirmed the contract notwithstanding such default and waived his right, if any existed, to rescind for such ground, and was remitted to his claim for money loaned. Ebel v. Roller, 21 S.W. (2d) 217; Taylor v. Short, 107 Mo. 384, 17 S.W. 970; Robinson v. Siple, 129 Mo. 208, 31 S.W. 788; McNaught v. Equitable Life Assur. Soc., 121 N.Y. Supp. 452, 136 App. Div. 774. (7) By assuming dominion over plaintiffs' property interest in the vessel and formally excluding them therefrom on August 1, 1918, confirming the same by subsequent acts of ownership, in particular, demanding, receiving and retaining for himself the compensation awarded and paid for said half interest by the Government. Thompson committed trover and conversion of plaintiffs' property. Ireland v. Horseman, 65 Mo. 511; Meyer v. Price, 165 N.E. 819, 250 N.Y. 370; Proctor v. Home Trust Co., 221 Mo. App. 583, 284 S.W. 156. (6) Thompson's conversion of their half interest in the Gut Heil entitled plaintiffs to recover damages therefor from him, and, upon his death, from his estate, the measure of damages being half the fair market value of the vessel at the time of conversion, plus interest to date of judgment, less the purchase money refund due Thompson (plus interest thereon to date of conversion, if any, agreed upon by the parties). Kuzemka v. Gregory, 146 Atl. 19; Leimkuehler v. Wessendorf, 18 S.W. (2d) 453. (7) Thompson's repudiation of the agreement between them, with restitution of moneys received by him during its operation, and his immediate and irrevocable conversion of plaintiffs' interest in the vessel and appropriation of the value thereof, effectively terminated the joint adventure of plaintiffs with him in the vessel; thereafter neither Thompson nor, a fortiori, his administratrices, could revive the contract. All the more was this true after plaintiffs had acted upon such abrogation of the joint adventure, especially by suing Thompson in the courts of New York, commencing June 24, 1920, for damages in conversion and by filing claim for the same against his estate in administration long before his administratrices attempted to revive the dead adventure by their counterclaim. International Text Book Co. v. Brennan, 182 S.W. 771; Ault v. Dustin, 45 S.W. 987, 100 Tenn. 366.

Randolph Laughlin for respondents.

(1) If the record preserved for this court all the evidence that was before the trial court, the only question for this court would be whether there was any substantial evidence to support the judgment. Clayton v. Gentle, 14 S.W. (2d) 672; Farmers Bank v. Ratliff, 297 S.W. 84; Casteel v. Dearmont, 299 S.W. 816; Longworth v. Bank, 300 S.W. 546; In re Aiken's Estate, 5 S.W. (2d) 662; Security Co. v. Stevens, 9 S.W. (2d) 808. (a) But where, as in this case, the record on appeal does not preserve all the evidence on which the trial court acted, it will be presumed that the trial court correctly found the facts and correctly rendered judgment thereon. Sanders v. McClara, 208 S.W. 264; Darby v. Weber Implement Co., 208 S.W. 118. (b) The motion to affirm should be sustained for failure to comply with the rules. (2) There was and is substantial evidence to support every finding made by the trial court. Appellants ask this court to review the weight of the evidence. This cannot be done. In an action at law the trial court's findings on substantial evidence are conclusive on appeal. Koehler v. Rowland, 275 Mo. 572; Sexton v. Sexton, 295 Mo. 142; Laughlin v. Laughlin, 291 Mo. 485; Clinton v. Clinton, 223 Mo. 388; Missouri Lumber Co. v. Hassell, 298 S.W. 47; Koch v. Sanford, 220 Mo. App. 296; Babel v. Ransdell, 294 S.W. 734; Burke v. Cerra, 11 S.W. (2d) 59. (3) Appellants never had any title whatsoever to a half interest in the Gut Heil. They could not possibly acquire any such title without an assignment in writing or bill of sale, and without complying with the provisions of the Shipping Act and filing a declaration. "No such bill of sale, mortgage, hypothecation or conveyance shall be valid against any person whatsoever until such declaration has been filed." U.S. Code, Title 46, sec. 838, p. 1536. (4) A suit for conversion cannot be maintained by one who has no element of ownership in the property, with possession or right of possession thereto at the time of the alleged conversion. Morrill v. Alexander, 215 S.W. 765. Although appellants call their suit an action for conversion, their claim, rightly construed, is for damages for breach of contract, and that is the only theory on which the court can possibly consider it. Morrill v. Alexander, 215 S.W. 765. (5) Whenever appellants speak of their own claim, based on the contract, they say that Thompson couldn't rescind, and that the contract remains alive. Whenever they speak of Thompson's claim, based on the same contract, they insist that he did rescind and that his administratrices couldn't revive. (a) Shell-game artists are not permitted to practice their profession upon this court. "Such inconsistent positions will not be tolerated in a court of justice." McClanahan v. West. 100 Mo. 322. (b) Where, as in this case, the right to rescind is disputed, there is nothing to prevent a subsequent affirmance where the other party evidences his willingness by suing upon the contract himself. McNeght v. Equitable Life, 121 N.Y. Supp. 452. (c) The action of appellants in suing upon the contract, and alleging that they had at all times duly offered to perform the contract, authorized respondents to take them at their word, to accept their offer, and by counterclaim to recover damages for their breach of the same contract. McElrath v. United States, 102 U.S. 441; Kimberly v. Patten, 140 N.W. 166; Merrill v. Merrill, 215 Ill. App. 602. (d) Respondents had the right to elect whether to stand on the rescission or whether to stand on the contract. Societa Italiana v. Sulzer, 19 N.Y. Supp. 824. (e) Respondents duly and properly exercised their right, and made their election to stand upon the contract and the counterclaim, when on July 2, 1927, they struck out their defense of rescission and all other special defenses. (f) Appellants having made their election to repudiate the rescission and to stand upon the contract, and thereby having caused respondents to accept their invitation and to stand upon the same contract, they cannot now recall their invitation of deny its validity, and thus trip up the heels of their adversary. McClanahan v. West, 100 Mo. 222.

FITZSIMMONS, C.

This case comes to the writer upon reassignment. It is founded upon a demand in the sum of $158,366.67 and interest filed by plaintiffs (appellants) in the Probate Court of the City of St. Louis against the estate of John W. Thompson, deceased....