Easter v. Easter
| Decision Date | 10 December 1912 |
| Citation | 151 S.W. 413,246 Mo. 409 |
| Parties | WARREN W. EASTER v. CHARLES R. EASTER and ELIZABETH R. EASTER, Appellants |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Walter A. Powell, Judge.
Reversed and remanded (with directions).
McCune Harding, Brown & Murphy for appellants.
(1) Elizabeth Easter holds the property in question by virtue of a warranty deed, absolute on its face. Before plaintiff can impress a resulting trust on the property, he must establish his case by strong, clear and unequivocal evidence, falling but little short of demonstration. This he failed to do. The only direct evidence on this point was his own. It was vague and uncertain and fell far short of being intelligent, much less convincing, and was stoutly contradicted by every scrap of paper and every witness connected with the transaction. Johnson v. Quarles, 46 Mo. 432; Kennedy v Kennedy, 57 Mo. 76; Ringo v. Richardson, 53 Mo 385; Kinney v. Murray, 170 Mo. 701; Garrett v. Garrett, 171 Mo. 155; Burdett v. May, 100 Mo. 13; Philpott v. Penn, 91 Mo. 38; Coleman v. Parran, 43 W.Va. 754; Bibbs v. Hunter, 79 Ala. 358; Currence v. Word, 43 W.Va. 367. (2) Failing to prove his case by direct evidence, counsel attempted to do so by the alleged admissions of defendants. There was no admission that any of plaintiff's money or the copartnership money went into this property, but had there been, such admissions would not amount to direct proof. It is sometimes doubted whether admissions ought to be received when introduced for the purpose of divesting a title created by deed, but they are never admitted as direct proof. Its only office is to corroborate. There being no direct evidence and nothing to corroborate, it was error to admit it. Kinney v. Murray, 170 Mo. 701; Johnson v. Quarles, 46 Mo. 427; Coronet v. Bertlemann, 61 Mo. 127; Ringo v. Richardson, 53 Mo. 385; Fanning v. Doan, 139 Mo. 392; Berry v. Hartzell, 91 Mo. 137; Underwood v. Underwood, 48 Mo. 527; Garrett v. Garrett, 171 Mo. 164; Davis v. Greene, 102 Mo. 170; Reed v. Morgan, 100 Mo.App. 713; 1 Greenleaf on Evidence (16 Ed.), Sec. 200. (3) Plaintiff did not pretend to know how much of his money, if any, went into the purchase price of the real estate. A person in whose favor a resulting trust is sought to be enforced, must show specifically by clear, convincing and unequivocal evidence, what amount of his money went into the purchase price of the property. If proof of amount is uncertain, the resulting trust will fail. Coleman v. Parron, 43 W.Va. 737; Olcott v. Bynum, 17 Wall. 44; In re Wood, 5 F. 443; Baker v. Vining, 30 Me. 121; Bailey v. Hemingway, 147 Mass. 326; Smith v. Burnham, 3 Summ. (U.S.) 466; Ducie v. Ford, 138 U.S. 591; Bibbs v. Hunter, 79 Ala. 351; Woodside v. Hewell, 109 Cal. 487; Wheeler v. Kirtland, 23 N.J.Eq. 13; Garrett v. Garrett, 171 Mo. 155; Reynolds v. Morris, 19 N.J.Eq. 549; Sumner v. Pelton, 30 Ore. 268.
Ed. E. Aleshire and S. S. Gundlach for respondent.
We agree with appellant's counsel that a resulting trust should be established by clear and cogent proof, but no stronger proof can be offered in a case of this character than the solemn admissions by the parties holding the trust or responsible for it and such trust may be as of a proportionate part as found by the chancellor in this case. Crawford v. Jones, 163 Mo. 577. There is practically no difference between counsel as to the law of this case, but we differ only as to the probative effect of the evidence. The chancellor observed all of the witnesses and heard all of the evidence and we think properly applied the same. Owensby v. Chewing, 171 Mo. 226; Prewitt v. Prewitt, 188 Mo. 675; McMurray v. McMurray, 180 Mo. 526.
--Warren W. Easter, the plaintiff, and defendant Charles R. Easter are brothers and defendant Elizabeth R. Easter is the latter's wife. For about ten years the brothers were partners in the restaurant business and this suit was begun by plaintiff to recover an interest in a certain lot in Kansas City the title to which was taken May 11, 1901, in the name of defendant Elizabeth but which plaintiff contends was bought with partnership funds and for the partnership. From a decree vesting title as to an undivided one-fifth of the property in the plaintiff and defendant Charles R., as partners, both defendants have appealed.
Counsel do not differ materially as to the law of the case, the real controversy being as to the sufficiency of the evidence to support the finding that partnership funds were employed in the purchase. Since the principal question to be determined is purely one of fact, it becomes necessary to review the evidence in the case.
The partnership between the brothers began in 1892 and they conducted the business until some time in 1895 when it was sold on deferred payments which the purchaser soon found himself unable to meet and the partnership again resumed the business and prosecuted it continuously until in 1902. The evidence does not show the profits of the business to have been very large prior to the sale mentioned though there is evidence the firm made some money. In 1894 Charles R. Easter married the defendant Elizabeth R. Easter, who appears to have had some knowledge of the restaurant business and to have been both capable and economical. Some time after resuming business in 1895 the two brothers began to save a little money and by June, 1899, had accumulated $ 105 each by means of payments separately made on building and loan stock. In June, 1899, the two purchased the interest of another brother in property at Lexington, paying fifty dollars each and executing a note for seventy-five dollars for a balance. At this time plaintiff withdrew all his money from the building and loan, and Charles R. borrowed fifty dollars from the association, withdrawing the balance two months later. The business was prosperous thenceforward and May 11, 1901, the property here involved was purchased, the title being taken in the name of Elizabeth R. Easter and the purchase price of $ 7000 being paid as follows: $ 500 in cash; $ 2000 in property conveyed to Elizabeth R. Easter by her mother for use in effecting the purchase; and the balance was secured by a first and second deed of trust for $ 3500 and $ 1000 respectively. The owner of the property had no dealings with plaintiff, the whole of the business, including his contract to erect a two-story building on the lot he sold, being transacted by Elizabeth R. and Charles R. Easter An error in the estimate of the width of the lot resulted in a credit of $ 300 on the note secured by the second deed of trust and the balance of $ 700 was paid, as due, in monthly installments of seventy-five dollars, the greater portion of the amount being paid between May 11, 1901, and May 15, 1902. These payments were made by Mrs. Easter usually, none of them being made personally by plaintiff.
From the beginning plaintiff was addicted to the use of intoxicants and the evidence is clear that he spent some time and considerable money in indulging his appetite for drink. Apparently disinterested witnesses testified that for a long time he was constantly under the influence of liquor and he admits the habit but denies expending any considerable amount of money in indulging it. At any rate, in 1899 his condition had become such that he thought it proper to take what is commonly called the "Keeley Cure" and did so. Thereafter he began drinking again and his health seems subsequently to have been very poor.
In 1902 plaintiff, who is usually called "Wirth" by the witnesses, executed to defendant Charles R. Easter a bill of sale of the stock and fixtures This instrument was dated July 30, 1902, and the recited consideration was $ 500. The consideration was paid, the evidence shows, in semi-monthly installments of fifteen dollars.
Plaintiff testified he and his brother had no settlements and made no division of profits at all during the time the partnership existed but that Charles R. simply kept all the firm's money after the expenses were paid; that until 1899 the profits were small and were absorbed by rent paid which amounted to seventy dollars per month. He was unable to state what profits the firm was making at the time the removal to the new building (1901) occurred, the nearest approach being: "Well, we were doing a very good business, a very good business, and so far as the volume goes, I do not know, it might have been over one hundred dollars a month, probably, clean cash." He further testified the firm had six or seven hundred dollars on hand in May, 1901; that he and Charles R. Easter agreed to purchase the lot at 420 West Ninth street and have the title put in the name of Charles' wife. He testified positively he personally participated in the negotiations for the lot but it clearly appeared he did not do so. He was unable to tell by or to whom the money was paid, from what source it came, or what the amount of it was, and finally admitted he didn't know that it was paid at all. He said that both he and his brother had access to the money drawer, that each took money as he wished, leaving a ticket in the money drawer, and that a book account of what each received was kept by the firm. The book was not produced nor was any effort made to secure its production, so far as the record shows. There is so much of contradiction, uncertainty and clear mistake in plaintiff's...
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