Eichenberg v. Magidson's Estate
| Decision Date | 07 April 1943 |
| Docket Number | 26198 |
| Citation | 170 S.W.2d 105 |
| Parties | Samuel Eichenberg, Administrator c.t.a. of the Estate of Mordecai, Son of the Plous Ben Fohraim Joseph Latzkever, also known as A. Glickman, Respondent, v. Estate of Abraham Magidson, Sara G. Magidson, Administratrix, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, St. Louis County. Hon. John J. Wolfe Judge.
W. E. Bennick
Now again come the parties aforesaid, by their respective attorneys, and the Court being now sufficiently advised of and concerning the premises, doth consider and adjudge that the judgment rendered herein by the said Circuit Court of St. Louis County be reversed, annulled, and for naught held and esteemed; that the said appellant be restored to all things she has lost by reason of the said judgment; that the said cause be remanded to the aforesaid Circuit Court of St. Louis County for further proceedings to be had therein, in conformity with the opinion of this Court herein delivered, and that the costs of this proceeding be paid out of the assets of the state of Mordecal, Son of the Plous Ben Fohraim Joseph Latzkever, also known as M. Glickman, in the hands of Samuel Eichenberg, as administrator c. t. a. Opinion filed.
This proceeding originated in the Probate Court of St. Louis County as a demand against the estate of one Abraham Magidson now in process of administration in that court.
Such demand, which was presented by the administrator c.t.a. of the estate of one M. Glickman, was "for the sum of one thousand four hundred fifty dollars ($1,450.00), plus interest at the rate of five per cent (5%) per annum from February 6, 1939, founded on a claim for money had and received by said Abraham M. Magidson, which said Abraham M. Magidson agreed to pay on demand with interest at the rate of five per cent (5%) per annum, said interest to be paid quarterly". It was further stated that the last interest payment made by Magidson to Glickman was on February 6, 1939, in the sum of $18.12.
Following the allowance of the demand in the probate court, the administrative of Magidson's estate prosecuted her appeal to the circuit court, wherein, upon a trial to a jury, a verdict was returned in favor of the claimant, finding that Magidson's estate was indebted to the administrator c.t.a. of Glickman's estate in the principal sum of $1,450. Judgment was rendered in accordance with the verdict; and the administratrix' appeal to this court has followed in the usual course.
Glickman died about June, 1939, and Magidson in February, 1940.
Both men were of the Jewish faith, and were attendants at the same synagogue, where Glickman gave religious lessons to the children for which he received a small compensation. Magidson was the treasurer of the congregation, and as such drew checks against the funds in his possession in payment of the expenses of the synagogue.
It is said to be the practice among orthodox Jews that when difficulties arise between individuals over financial matters, an attempt is made to settle such difficulties through the intervention of the rabbi rather than by recourse to the ordinary processes of the law.
Conformably with this practice, it seems that during the lifetime of both Glickman and Magidson, certain mutual circumstances had occasion to speak to Magidson regarding his indebtedness to Glickman, and that Magidson readily admitted that he owed Glickman a balance of $1,450 upon a promissory note which he had executed to Glickman, but which Glickman had lost or misplaced, and was unable to produce. At no time aid Magidson deny the indebtedness, but on the contrary he invariably expressed his willingness to discharge the debt if Glickman would furnish a bond to indemnify him against loss in the event the note should be subsequently found.
He also stated that he had a duplicate note in his private safe, and that he had continuously paid the interest on the note, and would continue to do so, but would not pay the principal without the giving of a bond. Corroboration of the fact of interest payments was supplied by photographic copies of Magidson's bank statements, showing a series of items drawn on his account at intervals of three months, each for $18.12, which account, incidentally, would be equivalent to the interest for three months on $1,450 at the rate of five percent per annum.
It also appeared that when Glickman died leaving only $85 in cash, certain persons approached Magidson in regard to the funeral expenses, and that in acknowledgment of the fact that he had been indebted to Glickman, he gave his check in payment of the balance of the undertaker's bill.
There was evidence that an unavailing search for the note was made among Glickman's personal belongings, and that when the note could not be found, he displayed no disposition to furnish Magidson a bond, being rather content to let the matter rest upon Magidson's assurance that the interest payments would be at all times continued.
The evidence of Magidson's widow and administratrix was primarily negative in character that is that upon the making of the claim in suit, she has searched through Magidson's personal records and papers, as well as those of the loan company of which he had been president, but had found nothing to indicate his indebtedness to Glickman in any way. She identified a series of twenty-two checks of undisclosed amounts drawn by Magidson in favor of Glickman, but testified that to her personal knowledge, certain of the checks at least had been drawn to cover expenses of the synagogue which had been paid by Magidson as the treasurer of the congregation.
The case was submitted to the jury upon a single a instruction for the plaintiff, which directed a verdict in plaintiff's favor if the jury found that Glickman had loaned money to Magidson, which Magidson had promised to repay, but had failed to do so.
The jury found for plaintiff, as already indicated; and on this appeal defendant argues as a matter of first insistence that the case should not have been submitted to the jury, but that instead the demurrer to the evidence should have been sustained upon the ground of a total failure of proof of the cause of action alleged.
The gist of defendant's contention is that whereas the demand was purportedly founded upon a claim for money had and received, the evidence was all to the effect that Magidson's obligation, If any, was upon a promissory note executed to evidence a loan from Glickman to Magidson; that proof of money loaned does not support a cause of action for money had and received and that in any event, with the evidence disclosing that the indebtedness was upon note, a recovery could not be had without the giving of an indemnifying bond as required by Section 1115, R.S.M.S. 1989, Mo.R.S.A., sec. 1115.
Viewed from the standpoint of both reason and precedent, defendant is undoubtedly correct in her insistence that proof of the execution of a promissory note to evidence an indebtedness for money loaned to the decedent would not support a cause of action upon the theory of money had and received.
However flexible such action may be, and however much it may be "favorite of the law, it only lies where one person has received money belonging to another, which, for reasons of equity and good conscience, be ought to pay to the owner. Nodaway County v. Kidder, 344 Mo. 795, 129 S.W.2d 857. Although the action is purely one at law, it partakes of the nature of equity (Clifford banking Co. v. Donovan Commission Co., 195 Mo. 262, 94 S.W. 527); and whenever it is shown that one has money in his possession which rightfully belongs to another, the law establishes privity between the parties, and implies the promise and obligation upon which the action rests. Bisesi v. Farm & Home Savings & Loan Assn. of Missouri, 231 Mo.App. 897, 78 S.W.2d 871.
In other words, the underlying theory is that the money, however received, was received for the use of the plaintiff; and unless the case is one where such a situation obtains, the particular action does not lie. Wheat v. Platte City Ben Assessment Special R. Dist., 227 Mo.App. 869, 59 S.W.2d 88. Something in the nature of a trust is presupposed, which is not established by proof of nothing more then the loan of money without fraud by the borrower, creating only the relation of debtor and creditor between the two. There are no equities to transform such a...
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