Carpenter v. Kendrick
| Decision Date | 08 June 1923 |
| Citation | 252 S.W. 646,299 Mo. 95 |
| Parties | LESTER W. CARPENTER, Administrator of Estate of ALICE POWELL GILMORE, and WILLIE POWELL and ALICE DOWDY v. F. N. KENDRICK and W. R. CLARK, Appellants |
| Court | Missouri Supreme Court |
Appeal from Cooper Circuit Court. -- Hon. John G. Slate, Judge.
Affirmed.
W. E Owen and Ross E. Feaster for appellants.
(1) The law favors compromises and settlements. Cullen v. Ins Co., 126 Mo.App. 412. When a right is disputed and a compromise ensues, that compromise will not be disturbed should it turn out afterwards that one of the parties had no right at law. Such a principle would overthrow all compromises. The compromise of a doubtful claim is a good consideration for a contract. Reilly v. Chouquette, 18 Mo. 226. (2) The compromise of the claim against the estate of W. O. Powell, whether barred or not, constituted good and sufficient consideration for the note and deed of trust. Wood v. Telephone Co., 223 Mo. 565; Gentry v. Field, 143 Mo. 399; Glover v Cheatham, 19 Mo.App. 656; Reilly v. Chouquette, 18 Mo. 220; Hill v. Coal Co., 124 Mo. 153; Rinehart v. Bell, 82 Mo. 534; Livingston v. Dugan, 20 Mo. 102; Mullanphy v. Riley, 10 Mo. 48. (3) A debt barred by limitation is sufficient consideration. Glover v. Cheatham, 19 Mo.App. 656. A conveyance of property in payment of a note which is barred by limitation is supported by a valuable consideration. Gentry v. Field, 143 Mo. 399. (4) Mutual and concurrent promises furnish consideration for each other; the fact that one is executory makes it none the less binding. Chenoweith v. Express Co., 93 Mo.App. 185; Gennett v. Gilbert, 83 Mo.App. 411. (5) The right of either party to refuse to adjust and finally settle an account until its correctness is accepted by the other, is of itself a consideration for any settlement effected. McCormick v. St. Louis, 166 Mo. 315; Reilly v. Chouquette, 18 Mo. 220. (6) The compromise of a doubtful claim asserted in good faith is a valuable consideration to support a promise. Mullanphy v. Riley, 10 Mo. 48; Reilly v. Chouquette, 18 Mo. 220; Livingston v. Dugan, 20 Mo. 102; Rinehart v. Bell, 82 Mo. 534; Hill v. Coal Co., 124 Mo. 153. (7) A moral obligation is a sufficient consideration when based on a prior legal obligation. Farmers & Merchants Bank v. Redmond, 119 Mo.App. 18; Hallock v. Brier, 80 Mo.App. 331; Green-baum v. Elliott, 60 Mo. 25; Eastley v. Gordon, 51 Mo.App. 637. (8) However valid a claim may be, if there is an honest belief by the debtor that it is invalid, it may be compromised. Milling Co. v. Ins. Co., 105 Mo.App. 146. (9) A threatened lawsuit, civil in character, is not duress and will not avoid a contract entered into, to avoid such suit. Wood v. Telephone Co., 223 Mo. 557; 8 Cyc. 523. Duress, in its more extensive sense, is that degree of constraint or danger, either actually inflicted, or threatened, or impending, which is sufficient in severity or in apprehension to overcome the mind and will of a person of ordinary firmness. Wood v. Telephone Co., 233 Mo. 558. (10) It is not the existence of undue influence but the exertion of it in the procurement of the instrument, that invalidates it; and the evidence must show that such undue influence was actually exercised at the time of the execution or procurement of such instrument. Fible v. Kamp, 154 Mo. 545; Sutherland v. Hood, 84 Mo. 293; McFadden v. Catron, 130 Mo. 252, 138 Mo. 197. Undue influence cannot rest on suspicion. There must be proof of undue influence itself, and to be effective it ought to be sufficient to destroy the free agency of the testator at the time of making the instrument. Teckenbrock v. McLaughlin, 209 Mo. 551. (11) The ground of cancellation must be clearly and positively established by complainant. Bryan v. Hitchcock, 43 Mo. 527; Jackson v. Wood, 88 Mo. 70. (12) Where no confidential relation exists, the burden is on plaintiff to prove that the grantor in the deed was incapacitated to make it. Cohron v. Polk, 252 Mo. 278; McDennett v. Keister, 240 Mo. 290.
George F. Longan and D. E. Kennedy for respondents.
(1) Did Alice Powell have the mental capacity to execute the contract, and was she capable of understanding her rights without independent advice, and did W. R. Clark, having the superior knowledge, act in good faith? 1 Black on Rescission of Contracts, secs. 40, 41, 106, 107, 108, 249; Turley v. Edwards, 18 Mo.App. 676, 683; McClure v. Lewis, 72 Mo. 314; Bell v. Campbell, 123 Mo. 1; Turner v. Overall, 172 Mo. 261; Ridgeway v. Herbert, 150 Mo. 618; Martin v. Baker, 135 Mo. 495; Jones v. Belshe, 238 Mo. 524; Cornett v. Cornett, 248 Mo. 184, 235; Davenport v. Cosey, 222 S.W. 794; Story's Equity (14 Ed.) sec. 339. (2) The reality of the claim is not measured by the state of the law, but by the state of the knowledge of the person making the concession. 9 Cyc. 340-341; 13 Corpus Juris, 346. (3) Forbearance to sue will not avail where the right of action no longer exists. Long v. Towl, 42 Mo. 545; Corbyn v. Brokmeyer, 84 Mo.App. 649, 653; Osborne v. Fridich, 134 Mo.App. 449; Swaggard v. Hancock, 25 Mo.App. 596, 647; Land Company v. Lumber Co., 136 Mo.App. 181; Heck v. Watkins, 183 S.W. 354; Briscoe v. Kenealy, 8 Mo.App. 76; Warren v. Bishop, 22 Vt. 607; Brown v. Tarkington, 3 Wall. 377; Fryar v. Cetner, 72 N.W. 909; Taylor v. Weeks, 88 N.W. 366; Nicholson v. Neary, 137 P. 492; Roberts v. Parsons, 242 S.W. 595; 12 Ruling Case Law, 309. (4) A moral obligation is not sufficient unless supported by a prior legal obligation. Terry v. Terry, 217 S.W. 842, 845. (5) Where the evidence is conflicting the appellate court is not disposed to overturn the finding of the chancellor who tried the case. Cook v. Smith, 124 Mo.App. 561, 566; Nichols v. Wimer, 230 S.W. 345; Cherry v. Cherry, 258 Mo. 403. (6) Was Clark's claim against the estate of William O. Powell doubtful, and did Clark know the facts? Clark v. Powell Estate, 208 S.W. 31.
Suit in equity to cancel note and deed of trust made by Alice Powell, deceased, to defendant, F. L. Kendrick, Trustee, and W. R. Clark, beneficiary, dated January 31, 1913.
The plaintiffs had judgment, from which defendants duly appealed to this court.
The grounds alleged in the petition for cancelling said instruments are want of consideration, duress, undue influence, fraud and false representations on the part of the defendant Clark, and want of mental capacity on the part of said Alice Powell in the execution thereof. All of which are put in issue by the answer.
The controversy grows out of a note for $ 200 dated August 5, 1872, due one day after date, with interest from date to be compounded annually, at the rate of ten per cent per annum, until paid, given by W. O. Powell, the father of said Alice Powell, who died in the year 1912, to the defendant Clark. The Powells and Clarks were farmers and neighbors and friends living in Pettis County. Powell had a farm of about 350 acres and was fairly well to do -- and Clark was very well to do, a farmer and money lender. The note was given for a horse Clark sold to Powell. After Powell's death, Clark claimed the note had never been paid, that it had been kept alive by payments made thereon by Powell, as follows; March 3, 1885, $ 200; March 7, 1895, $ 10; and March 1, 1904, $ 5. Clark presented and filed said note on April 23, 1913, in the probate court against the estate of said Powell, amounting to $ 6341.47. The executor resisted payment on the ground the note had been paid, and was barred by the Statute of Limitations, but was fraudulently retained and presented for allowance by said Clark.
At the trial in the probate court of Pettis County, Clark was defeated. He appealed and took a change of venue to Cooper County, where the first trial resulted in a hung jury. A second trial at the May term, 1915, resulted in a verdict and judgment against Clark. He appealed to this court, where the judgment was affirmed. Our opinion is found in 208 S.W. 31.
Powell's only heirs and devisees were his two children, Alice Powell, his daughter, a single woman about fifty years of age, and Ed Powell, his son. The son was married at the time of the father's death. The land in question was devised by his will to his daughter. The son died before this case was tried, leaving plaintiffs Willie Powell and Alice Powell Dowdy as his heirs.
After Clark had filed his claim in the probate court, and before trial thereof, he visited said Alice Powell, with a view of settling his claim with her. The result was the following agreement, was drawn up by Clark's attorney and signed by the parties; no one was present representing her in making or signing said contract:
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