Central States Life Ins. Co. v. Bloom

• Decision Date: 06 March 1940
• Docket Number: 36554
• Citation: 137 S.W.2d 517,345 Mo. 982
• Parties: Central States Life Insurance Company, Appellant, v. Nathan Bloom and Ethel Bloom
• Court: Missouri Supreme Court

137 S.W.2d 517

345 Mo. 982

Central States Life Insurance Company, Appellant, v. Nathan Bloom and Ethel Bloom

No. 36554

Supreme Court of Missouri

March 6, 1940

Appeal from Circuit Court of City of St. Louis; Hon. Thomas L Anderson, Judge.

Reversed and remanded (with directions to enter judgment for plaintiff).

Jones Hocker, Gladney & Grand and William Sellman for appellant.

(1) The burden of proof of estoppel rests on the party by whom it is claimed. Globe Securities Co. v. Gardner Motor Co., 85 S.W.2d 561; Petring v. Heer Dry Goods Co., 90 Mo 649, 3 S.W. 405; Creek v. Ry. Co., 293 Mo. 541, 240 S.W. 128; Grafeman Dairy Co. v. Northwestern Bank, 315 Mo. 849, 288 S.W. 359. (a) Estoppels are not favored and will not be lightly invoked. Natl. Match Co. v. Empire Storage & Ice Co., 58 S.W.2d 797; Allen Gro. Co. v. Bank, 192 Mo.App. 482, 182 S.W. 777; Wyatt, Admr. v. Wilhite, 192 Mo.App. 560, 183 S.W. 1107; Osburn v. Court of Honor, 152 Mo.App. 661, 133 S.W. 87; 21 C. J., sec. 139, p. 1139; 10 R. C. L. 690. (2) Injury is an indispensable element of estoppel. New York Life v. Silverstein, 53 F.2d 986; Julian v. Nicholson, 72 F.2d 35; Mo. Cattle Co. v. Ins. Co., 330 Mo. 988, 52 S.W.2d 1; Losee v. Crawford, 222 Mo.App. 683, 5 S.W.2d 105; Frankford Exchange Bank v. McCune, 72 S.W.2d 159. (3) Declarations based on the judgment or opinion of the person making them will not support an estoppel. Hammerslough v. K. C. Bldg., L. & S. Assn., 79 Mo. 86; Biggs v. Modern Woodmen, 336 Mo. 879, 82 S.W.2d 907; 21 C. J., secs. 143, 144, p. 1142. (4) To work an equitable estoppel, there must be a statement or act inconsistent with the claim afterward asserted. State ex rel. v. Mo. Utilities Co., 331 Mo. 337, 53 S.W.2d 399; Waugh v. Williams, 342 Mo. 903, 119 S.W.2d 223. (5) Where the case has been fully developed, and there is no need for a retrial, and erroneous judgment will be reversed and remanded, with directions to enter up a proper judgment. Parrish v. Treadway, 267 Mo. 91, 183 S.W. 580; Nicholson v. Walker, 25 Mo.App. 368; Moss Tie Co. v. Stamp, 25 S.W.2d 138; Sonnenfeld Millinery Co. v. Zirnheld, 230 Mo.App. 769, 75 S.W.2d 608.

Maurice Schechter for respondents.

(1) Answer setting up estoppel is sufficient where no objection is made by demurrer or motion. Olden v. Hendrick, 100 Mo. 533, 13 S.W. 821; Grafeman Dairy Co. v. Northwestern Bank, 315 Mo. 849, 288 S.W. 363. (2) Respondents' answer sets up a valid defense and the allegations of the answer were proved and created a jury issue. State ex rel. v. Missouri Utilities Co., 331 Mo. 337, 53 S.W.2d 394; Vette v. Hackman, 292 Mo. 138, 237 S.W. 802; Bank of Neelyville v. Lee, 193 Mo.App. 537, 182 S.W. 1016; State ex rel. v. Fidelity & Cas. Co., 82 S.W.2d 128; Bank of Neelyville v. Lee, 208 S.W. 143. (3) The theory upon which the case was tried below will be held to obtain throughout the entire proceedings. Rath v. Knight, 55 S.W.2d 682; Kincaid v. Birt, 29 S.W.2d 97; Smith v. K. C. Pub. Serv. Co., 328 Mo. 979, 43 S.W.2d 548; Gary v. Averill, 321 Mo. 840, 12 S.W.2d 747; Scott v. Mo. Pac. Ry. Co., 333 Mo. 374, 62 S.W.2d 834; Securities Investment Co. v. International Shoe Co., 5 S.W.2d 682. (4) Appellant's assignment of error, numbered 2, not having been preserved, must be considered abandoned. Burch v. Cleveland, C. C. & St. L. Ry. Co., 328 Mo. 59, 40 S.W.2d 688; Johnson v. Underwood, 324 Mo. 578, 24 S.W.2d 133; St. Louis v. Hamley Realty Co., 329 Mo. 1172, 48 S.W.2d 938; Majors v. Malone, 339 Mo. 1118, 100 S.W.2d 300; Langston v. Howell County, 108 S.W.2d 19. (5) Appellant's assignment of error, numbered 1, is faulty and, standing alone, presents nothing for review. Scott v. Mo. Pac. Ry. Co., 333 Mo. 374, 62 S.W.2d 840; Cooper v. K. C. Pub. Serv. Co., 116 S.W.2d 212; University Bank v. Majors, 229 Mo.App. 963, 83 S.W.2d 924. (6) It was not error for the court to refuse to give appellant's peremptory instruction, as the court cannot instruct as to a specific amount of interest. Sec. 973, R. S. 1929; Meffert v. Lawson, 315 Mo. 1091, 287 S.W. 612; Mercantile Trust Co. v. Dulle, 282 S.W. 416; Milan State Bank v. McCallister, 246 S.W. 609; Large v. Frick, 215 Mo.App. 232, 256 S.W. 90; Hackett v. Dennison, 223 Mo.App. 1213, 19 S.W.2d 541.

Hyde, C. Bradley and Dalton, CC., concur.

OPINION

HYDE

This is an action for the balance due on a note, computed to be $ 22,630.45 at date of trial. There was a verdict and judgment for defendants. Plaintiff has appealed and contends that defendants' evidence failed to prove any defense to the note.

In 1928, defendants executed a note for $ 25,000, secured by a first trust deed on real estate, due August 1, 1931. When the note came due defendants could not pay it. Defendant Nathan Bloom testified to facts, out of which defendants seek to make out an estoppel, as follows:

"I offered him (plaintiff's agent) title to the building . . . and they told me they wouldn't take the title, but they will try to sell the building, and the building was still worth $ 25,000.00 . . . He said they would not take the building, and I should remain in the building and they will collect the rent from the tenant, and in the meantime they will look for a tenant to buy the building. . . . He said, 'You keep the building, we'll take care of that; we'll try to get a buyer for the building, and then we'll let you off.' . . . They told me they would not take the building, I shall keep the building, but they will be the owners of the building, which they are anyhow by having the first mortgage, and they will try to get a customer for it."

The only tenant was the Globe Store and Office Fixture Company, a corporation, all of the capital stock of which was owned by defendants and their son. Bloom was president of this corporation and his son was secretary. According to Bloom, it paid rent of $ 25 per week. The interest on the note at 6 per cent was $ 1500 per year. Bloom also testified that the building was "in good shape" in August 1931; and that plaintiff made no repairs on it thereafter up to the date of foreclosure April 21, 1937. This suit was commenced several months before foreclosure. On September 11, 1934, defendants had executed a deed conveying the building to the Ethel Realty & Holding Company, a corporation owned by defendants. The purpose of this transfer was to get an RFC loan, "a government loan on the building," because plaintiff "wanted to get out their money." Plaintiff's agent assisted them in seeking such a loan but they failed to get it. Plaintiff bought the property at the foreclosure sale for $ 20,000. Bloom said that he did not pay all of the rental payments; that he did not know how much he did pay; and that he never asked for an accounting from plaintiff as to the application of the rent money on taxes and interest, or asked what was obtained at foreclosure. He said: "I was filled up with the property and wanted to get rid of it altogether. I couldn't hold it, and I thought whatever it is is all right with me." However, at the time of the foreclosure sale, he had a notice of redemption served on plaintiff's. Defendants' evidence was that there was no agreement about the building; that all payments after 1931 were made to apply on the note, or other mortgage obligations, and ranged from $ 25 to $ 200, and that the total of all defendants' payments was much less than the amount necessary to repay plaintiff for advances for taxes.

Defendants' theory of estoppel, as pleaded and submitted to the jury was (1) that they relied on plaintiff's statements that the property was worth $ 25,000 in 1931, and that plaintiff would attempt to obtain a purchaser at such a prive which would relieve defendants of their obligation; and (2) that they turned over control of the property to plaintiff and allowed it to collect the rent, and that plaintiff, during such control, negligently permitted the building to depreciate so that the property was not worth the amount of defendants' obligation. Even if this could be the basis of an estoppel there is a total lack of evidence to prove the reasonable market value of the property in 1931 or at any time thereafter, or to prove its condition at the time of foreclosure, or to prove that it did depreciate in value, or to prove any negligence in making repairs, or to prove that any repairs were requested or needed, or to prove that plaintiff did not attempt to obtain a purchaser or to prove that there were any purchasers to be found at such a price or to prove that plaintiff bought it at the foreclosure sale for any less than its full value. Moreover, the statements, which defendants claim were made on behalf of plaintiff, amount to nothing more than an agreement to let defendants' corporation remain in the building and apply all payments (whether paid as rent or otherwise is immaterial in this situation) to defendant's mortgage obligation while an attempt was made to find a purchaser. In other words, on defendants' theory, they were granted a moratorium (accounting only for rent) so that an attempt could be made to sell the property for the amount of the debt. Defendants thereafter recognized their continuing obligation when they tried, with plaintiff's assistance, to get a government loan to refinance their debt. Certainly plaintiff did nothing inconsistent with the statements made and there is no...