Eggimann v. Houck

• Decision Date: 06 November 1923
• Docket Number: No. 18281.,18281.
• Citation: 213 Mo. App. 510,255 S.W. 951
• Parties: EGGIMANN v. HOUCK.
• Court: Missouri Court of Appeals

255 S.W. 951

213 Mo. App. 510

EGGIMANN v. HOUCK.

No. 18281.

St. Louis Court of Appeals, Missouri.

November 6, 1923.

Appeal from Cape Girardeau Court of Common Pleas; John A. Snider, Judge.

Action by Emelie Eggimann against Louis Houck. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.

Spradling & Dalton, of Cape Girardeau, for appellant.

Wilson Cramer, of Jackson, for respondent.

NIPPER, C.

This is the second time this case has reached this court on appeal. See 240 S. W. 478, to which reference is made for a complete statement of the facts. The only difference on this appeal, so far as the evidence is concerned, is that Giboney Houck, who acted for the defendant in the transaction, testified at the last trial that Feuerhahn told him at the time he delivered the government bonds and the certificate of deposit that, if the debt was not paid by September 30th, the collateral was to be sold or cashed by defendant. He also testified that at the time he took the bonds and certificate he did not know that plaintiff made any claim to them; that he had noticed in the paper that Feuerhahn had bought $5,000 worth of Liberty Bonds, and that he thought he was getting a part of the bonds which Feuerhahn had purchased. There is nothing to indicate that defendant had any knowledge of the defect of Feuerhahn's title to the securities in question. The facts appear to be that Mrs. Eggimann, the plaintiff in this case, was about 74 years of age, and resided at the home of Feuerhahn and his wife. She and her deceased husband had raised Feuerhahn from boyhood. After her husband's death she went to live with him. She had two $1,000 government bonds, dated May, 1918, maturing. 10 years after date, and made payable to bearer. Feuerhahn obtained possession of a box which plaintiff kept under her bed, and in which she had placed the bonds and certificate of deposit. The certificate of deposit was made payable to her, and her indorsement thereon was a forgery by Feuerhahn. Feuerhahn took the certificate of deposit and the two bonds, and deposited them as collateral for a debt which he owed defendant. Feuerhahn testified that the securities were to be returned if the debt was not paid by September 30, 1918, and that defendant was to proceed with an attachment suit which he had begun but later dismissed when Feuerhahn deposited the securities as collateral. This was denied by defendant's agent; that is, that the securities were to be returned.

The defendant asked an instruction in the nature of a demurrer, both at the close of plaintiff's case and at the close of the whole case, in so far as the government bonds were concerned. There was a verdict and judgment for plaintiff at the second trial for the possession of both the certificate of deposit and the government bonds. We do not understand from this record that defendant is contending that he is entitled to the certificate of deposit which was concededly made payable to plaintiff and her indorsement thereon forged by Feuerhahn. The instructions in the nature of a demurrer were overruled by the court.

Plaintiff requested, and was given one instruction, that one being to the effect, and amounting in substance, to the statement to the jury that, if Feuerhahn took possession of the certificate of deposit and the government bonds without the permission, knowledge, or consent of plaintiff, and pledged them to defendant as collateral security...