Emory v. Emory

• Decision Date: 03 September 1932
• Docket Number: No. 30388.,30388.
• Citation: 53 S.W.2d 908
• Parties: EMORY v. EMORY.
• Court: Missouri Supreme Court

53 S.W.2d 908

EMORY v. EMORY.

No. 30388.

Supreme Court of Missouri, Division No. 1.

September 3, 1932.

Motion for Rehearing Overruled October 22, 1932.

Appeal from Circuit Court, St. Louis County; Jerry Mulloy, Judge.

Action by John Emory against Andrew Emory. Judgment for plaintiff, and defendant appeals.

Affirmed.

William J. Becker, of Clayton, for appellant.

McAtee & Foley, of Clayton, and Frank E. Mathews and James A. Waechter, both of St. Louis, for respondent.

HYDE, C.

This is a suit on an account for work done and money loaned between July 29, 1923, and September 28, 1928. Plaintiff alleged that the total amount of his account was $8,405; that he had received payments amounting to $1,221; and that the balance due was $7,184, for which he prayed judgment with 6 per cent. interest. Defendant's answer admitted that plaintiff was employed by him at various times after July 29, 1923, but stated that his salary was $100 per month instead of $25 per week, as alleged by plaintiff, and stated "that all of the salary was paid to plaintiff by defendant from time to time during said employment." Defendant also admitted that he had, in February, 1925, "borrowed from plaintiff a sum of money in the amount of approximately $1,800," but denied that he had borrowed the other sums alleged in plaintiff's petition. Defendant further stated that the $1,800 loan had been repaid "in a manner hereinafter more particularly described." The manner referred to was as follows:

"That in said employment plaintiff was the foreman of that part of the contracting and excavating business of defendant known as `team and wagon' outfit * * * bought the supplies and equipment for a commissary and camp for said animals and workmen and kept the books of accounts of such expenditures and payrolls for defendant * * *.

"That in the accounts outstanding by and between plaintiff and defendant, plaintiff from time to time advised defendant of the sum or sums of money necessary for the proper conduct of that branch of plaintiff's business, and of the balances due and outstanding by and between them, and that each time such demand was made of defendant by plaintiff, defendant remitted to plaintiff the sum so claimed to be due.

"That during, or about, to-wit: the month of October, 1928, plaintiff stated to defendant that the balance between them was in favor of plaintiff in the sum of Four Hundred Dollars ($400.00) and demanded of defendant that defendant pay the balance so due to plaintiff. That defendant, believing in the correctness of plaintiff's statement, and relying upon such belief, paid to plaintiff the sum of Four Hundred Dollars ($400.00) in full settlement of the outstanding accounts between them, both personally and in the affairs of defendant's business."

Defendant was a grading contractor engaged principally in road work. Plaintiff was his brother and worked for him as foreman of the grading outfit operated by teams. (There was another outfit operating motorized machinery.) He testified that he was to be paid $25 per week, straight time, and get his board. Defendant claimed that he was to be paid $100 per month. Plaintiff's testimony was that he had worked for defendant prior to July 29, 1923; that at that time defendant owed him $240; that he worked steadily from July 29, 1923, to August 1, 1926; that then he became sick, had to quit work, and did not commence again until March 15, 1927; and that he then continued to work from March 15, 1927, until about the first of October, 1928. Plaintiff said that he did not receive his salary during any of this time and that he also loaned defendant considerable sums of money, only part of which was paid back. The account he testified to was about as follows:

                Balance due for labor prior to July
                  29, 1923 ............................... $ 240.00
                Salary as foreman at $25 per week
                  from July 29, 1923, to July 29
                  1924 ...................................  1300.00
                Salary as foreman at $25 per week
                  from July 29, 1924, to July 29
                  1925 ...................................  1300.00
                Salary as foreman at $25 per week
                  from July 29, 1925, to July 29
                  1926 ...................................  1300.00
                Salary as foreman at $25 per week
                  from March 15, 1927, to March 15
                  1928 ...................................  1300.00
                Salary as foreman from March 15
                  1928, to September 22, 1928 (about
                  one-half year) .........................   650.00
                Money advanced defendant in 1924
                  for moving expenses from Hog
                  Hollow to New Malley (testified
                  $165.00, alleged in petition $100.00)
                  ........................................   100.00
                Money advanced defendant on Ford
                  automobile deal at New Malley in
                  1924 ...................................   100.00
                Money loaned at Warrenton, February,
                  1925 ...................................  1750.00
                Money sent plaintiff from North Dakota
                  which defendant used ...................   140.00
                Money advanced defendant at Riverview
                  Gardens in 1927 ........................   225.00
                                                           ________
                    Total ................................ $8405.00
                Payments made by defendant between
                  1925 and 1928 ..........................  1221.00
                                                           ________
                    Balance .............................. $7184.00
                

Plaintiff claimed that he entered these amounts, as the transactions occurred, in a memorandum book which he had at the trial; that throughout 1928 he kept asking defendant for a settlement; that defendant promised to make a settlement when he collected on certain contracts; that he set down the figures from his book on a sheet of paper and presented it to defendant; and that defendant did not deny the items, but said he wanted to check the addition. This paper was introduced in evidence. Plaintiff also said that the payrolls and accounts he turned in to defendant for payment never included his own salary; that defendant requested him to "just leave my pay ride. He would like to use it"; and that he did so. Alexander Emory, a brother of plaintiff and defendant, who also worked for defendant, corroborated plaintiff as to the $1,750 loan and the $140 loan. He said that defendant told him plaintiff's salary was $25 per week straight time and board, and that in 1928 defendant told him that plaintiff wanted his money and that he could not pay him and operate. He testified further: "It was in May that he said he could not pay John and operate too, in May of last year, 1928. I asked him what the bill was, how much he owed him and he said around — he guessed maybe $7,000. He said that he didn't know, John was keeping the books."

Another brother, Thomas Emory, testified that defendant told him that he was paying plaintiff $25 per week straight time and board, and that he had borrowed $1,750 from plaintiff. Thomas Emory said that this money came from the sale of a farm which he sold for plaintiff. He said that defendant told him at the time plaintiff was sick: "That boy worked for him for over two years — he said that he worked for him for over two years and had not drawn a cent of his salary."

Another brother, Cleveland Emory, also testified that defendant told him that plaintiff was getting $25 a week. He said: "Andrew spoke to me about John at different times. He said, `Kid, I don't see how I could get along without him, he makes me more money than all the rest of you fellows; he hasn't had a pay day for three years.'"

Defendant, testifying in his own behalf, was rather uncertain about the whole matter, as the following excerpts from his testimony show: "John Emory was in my employ from July, 1923, until September 22nd, 1928. He was in there, I would not say if he had straight time, through, he was in and out. I know that he was sick. I could not say the date. I have kept no records of it. * * * He was not paid every month. His salary had accumulated to more than one month at times. On September the 22nd, 1928, I had a conference at a job on say Hydraulic No. 7, with my brother John. He asked for a settlement. He was leaving. We figured it up and he turned in his time. He asked for $400 in his own figures. He did not ask for anything else. * * * I did borrow some money from John at Warrenton, Missouri. * * * I don't remember a check that I endorsed for $140, I mean $40, not $140. I remember that check. If you have the check and I can see the signature on it, I can tell you quickly if I have endorsed it or not. I do not remember borrowing $165 from John for moving expenses, but I have got different sums from him at different times. * * * I keep books. Each foreman on the job carries his own time. I have no records of my own. I keep books on the contracts which I had but from year to year, I disposed of them. We did not need them and destroyed them. They have all been destroyed up to this year. * * * I never did have his books because he kept them himself. I never had books for the work which I had done and the work he had done for me and the money which I owed him. I never kept those books. My contract run $20,000 or $30,000 a year, and I did not keep any books, except the books which were destroyed every year. I destroyed them because I had no use for them. The paid bills were paid and forgotten about, so I didn't need to keep them. We got receipts and we destroyed them every year. * * * He kept his own time books. The payroll was paid by cash. I paid it. He kept his own time, and his payrolls as all other foremen. They gave me that on a slip of paper. All they had to write up was the slip of paper like this and turn it over to me. Those papers were destroyed when they were paid. John was not paid regularly. I have had other men waiting for me for two or three months. If John did not need his money it could ride. That has happened a great many times. The entire seven years that he worked for me. He has given me payroll bills and he has sometimes just given me the lump sums. I often did...