Davidson v. Gould

• Decision Date: 05 July 1916
• Docket Number: No. 14428.,14428.
• Citation: 187 S.W. 591
• Parties: DAVIDSON v. GOULD.
• Court: Missouri Court of Appeals

187 S.W. 591

DAVIDSON v. GOULD.

No. 14428.

St. Louis Court of Appeals. Missouri.

July 5, 1916.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

"Not to be officially published."

Action by Emma A. Davidson against Edward M. Gould. Judgment for plaintiff, on defendant's refusal to plead further after demurrer to the answer was sustained, and defendant appeals. Affirmed.

Joseph Dickson, Jr., of St. Louis, for appellant. Loren H. Knox, of Chicago, Ill., and Taylor & Chasnoff, of St. Louis, for respondent.

REYNOLDS, P. J.

Plaintiff, Emma A. Davidson, respondent here, instituted her action on June 17th, 1912, on two promissory notes executed by defendant to her. The petition is in two counts, the first on a note for $1,000, dated June 1st, 1909, payable May 1st, 1911, the second of like date, payable May 1st, also for the sum of $1,000, each note bearing interest at the rate of 6 per cent. per annum, interest to be compounded semi-annually. Averring that the notes were past due and unpaid, judgment is asked for the amount of each.

The amended answer, filed October 31st, 1913, admits the execution of the notes and that they had long since matured and that no part thereof has been paid, but denies that anything is due plaintiff on either of them. As a further defense it is averred that one David B. Gould died October 21st, 1901, leaving surviving him his widow, now Emma A. Davidson, plaintiff below, and her three children, namely, the defendant Edward M., and a daughter Grace, now Mrs. Grady, and a daughter Emma, now Mrs. Black, all of whom he named as legatees in his last will, which was duly probated on October 29th, 1901. It is further averred that by the terms of this will David B. Gould gave to his wife Emma a life interest "in and to the Cottage property in lots 3 to 8 inclusive, in block 5 of Gould & Ewing's subdivision in Clearwater, Fla., in all of his real estate in Tampa, Fla., in 279 shares of the capital stock of the Gould Building Company and in one-quarter of the residue of his estate, with the provision that at her remarriage the aforesaid property should vest in his children in equal shares." It is then charged that before July 24th, 1903, and at a date unknown to defendant, plaintiff was secretly married to one Davidson and from the time of her marriage she had never disclosed to defendant when and where this marriage took place, defendant averring that he was kept in ignorance by plaintiff that the marriage had taken place before July 24th, 1903, until on or about May 1st, 1911, when he was informed of that fact by others. It is further averred that on July 24th, 1903, plaintiff "not then known by this defendant to be the wife of James Z. Davidson, and wilfully and purposely concealing her remarriage from him, and wilfully and fraudulently representing to him that she was still rightfully possessed of a life interest in the estate of her late husband, David B. Gould, induced the defendant and his two sisters to enter into a contract, in writing, for the division and distribution of the estate of David B. Gould, by the terms whereof her children, believing her to be still the widow of their father and unmarried, consented and agreed that she should take from said estate for her absolute property, in lieu of the life estate granted to her by the will of her former husband, * * * certain real estate known as the Cottage property in Clearwater, Fla., 106 shares of the capital stock of the Gould Directory Company, and two notes of Edward M. Gould (the defendant), each in the sum of $1,166, certain of the rents of the Tampa, Fla., real estate, and a child's part, being a one-fourth interest, in the residue of the estate."

It is further averred that on June 1st, 1909, plaintiff "still wilfully and fraudulent concealing from the defendant that she had remarried, on, to-wit, the ____ day of ____, 19__, prior to the execution of the aforesaid agreement of July 24th, 1903, and the defendant, being in ignorance of her said remarriage, induced defendant to buy the 106 shares of the capital stock of the Gould Directory Company received by her under and by virtue of the agreement last aforesaid, and to give in payment therefor his one-fourth interest in certain real estate (not the Cottage property) in Clearwater, Fla., and his three promissory notes, all payable to plaintiff and all dated June 1st, 1909," one of them in the sum of $2,000, payable May 1st, 1910, the other two, the notes here in suit, for $1,000 each.

It is further averred in this answer that defendant was induced to enter into the agreements of July 24th, 1903, and June 1st, 1909, to make and execute the conveyances to plaintiff therein set forth and to execute and deliver to plaintiff the notes described in the petition, "by the wilful concealment by plaintiff that she had forfeited her life estate in and to the estate of her late husband, David B. Gould, by her remarriage before the execution of the agreement made and...