Dubowsky v. Binggeli

• Decision Date: 23 November 1914
• Parties: ROSIE DUBOWSKY, Respondent, v. HANNAH BINGGELI, Administratrix et al., Appellant
• Court: Kansas Court of Appeals

171 S.W. 12

184 Mo.App. 361

ROSIE DUBOWSKY, Respondent, v. HANNAH BINGGELI, Administratrix et al., Appellant

Court of Appeals of Missouri, Kansas City

November 23, 1914

Appeal from DeKalb Circuit Court.--Hon. A. D. Burnes, Judge.

Judgment affirmed.

Wm. M Fitch for appellant.

(1) The plaintiff was not a party to the trust deed and note in suit the evidence fails to show that they were made for her use and benefit; she therefore had no right to maintain a suit thereon in her name. Howsmon v. Trenton Water Co., 119 Mo. 304; Ellis v. Harrison, 104 Mo. 270; 3 Page Contracts, sec. 1312; City of St. Louis v. Von Phul, 133 Mo. 561, 565. (2) Stephen Ushler was the sole beneficiary in the trust deed in suit; was a party to the contract in suit; the other party to the contract is dead; Ushler is not a competent witness, and his testimony should have been excluded. Sec. 6354, R. S. 1909; Lieber v. Lieber, 239 Mo. 11; Bishop v. Brittain Inv. Co., 229 Mo. 699; Oliver v. Johnson, 238 Mo. 359, 377. (3) Plaintiff failed to prove deceased executed the note sought to be enforced in this case, and therefore not entitled to recover. Sec. 1986, R. S. 1909; Bates v. Scheik, 47 Mo.App. 642; Julian v. Rogers, 87 Mo. 229.

Peter J. Carolus and John E. Dolman for respondent.

(1) If a defendant pleads to the merits, he waives everything in the petition but two points; first, that the petition does not state facts sufficient to constitute a cause of action; second, that the court has no jurisdiction over the subject-matter of the action. Sauter v. Leveridge, 103 Mo. 615; Shuler v. Railroad, 87 Mo.App. 618; Hudson v. Cahoon, 193 Mo. 547; Bannock v. Railroad, 200 Mo. 561; Hendricks v. Calloway, 211 Mo. 536; Forrister v. Sullivan, 231 Mo. 345; Blanchard v. Dorman, 236 Mo. 416. (2) The party in whose name the contract is made for the benefit of another, or the undisclosed beneficiary either, may sue in his own name. Rogers et al. v. Gosnell, 51 Mo. 466; Snider v. Express Company, 77 Mo. 523; Howsmon v. Trenton Water Co., 119 Mo. 304; Ellis v. Harrison, 104 Mo. 270; City of St. Louis v. Von Phul, 133 Mo. 561.

OPINION

ELLISON, P. J.

--This case was appealed to the Supreme Court and transferred from there here.

The evidence shows that at the time of the inception of this controversy plaintiff resided in Ray county, Missouri, and her sister Mrs. Stephen Ushler resided in St. Joseph in the same State. They had a brother named Chris Binggeli who wished to purchase a farm in DeKalb county and needed $ 1000 in money. Each of them loaned him $ 500 and he was to execute a note to each for that sum, secured by a deed of trust on the land purchased. It seems that the notary in preparing the papers wrote one note and deed of trust, for the whole sum in the name of Stephen, though the latter did not notice this until near three months afterwards. Chris Binggeli died leaving the defendant his widow and administratrix.

Before Chris died he paid to each of his sisters $ 100 on the principal and all accrued interest, thus leaving a balance of $ 400 due to each. Afterwards he desired to sell and conceiving the notion that he could make a better sale without an incumbrance on the land, he paid Stephen for his wife the balance of the money due her, but did not pay plaintiff any part of the balance due her. On the contrary he persuaded Stephen to release the deed of trust in full, promising to "take care of his sister;" saying, "I would not cheat her out of a cent." Plaintiff did not know this was being done; she did not authorize it, nor did she ever ratify the act. She learned of it some time afterwards and her brother Chris finally died, we may concede, without any intent to "cheat his sister," but without paying her. She brought the present action to cancel the release and to foreclose the deed of trust. She prevailed in the trial court.

We do not doubt that the judgment should be affirmed. The defense is largely technical and this is perhaps excusable, for it is made in behalf of minor heirs of the deceased who were made parties to the action.

First the objections to the petition, as evidenced by the motions, were waived by answering. [Paddock v. Somes, 102 Mo. 226, 14 S.W. 746; Sauter v. Leveridge, 103 Mo. 615, 15 S.W. 981; Blanchard v. Dorman, 236 Mo. 416, 139 S.W. 395; Shuler v. Ry. Co., 87 Mo.App. 618.]

The petition and the evidence show plaintiff to be the party in interest and, for that reason, she is undoubtedly qualified to maintain the action. It is of no consequence what term may be applied in description of plaintiff or Ushler, it is evident she has a cause of action on the facts.

Stephen Ushler was a witness and it is insisted that as the contract was in his name and the other party is dead, he was incompetent. We think the objections not sound, for the reason that the testimony given by him concerning this plaintiff's loan was not a matter in which he, or his wife, had any concern. This plaintiff's loan was not made by Ushler as her agent. He had nothing to do with her interest in the transaction and as to the loan being included in the note to his wife, he knew nothing about that for several months afterwards.

Defendant Hannah...