Foulke v. Hickman

• Decision Date: 27 February 1924
• Docket Number: No. 3398.,3398.
• Citation: 259 S.W. 496
• Parties: FOULKE v. HICKMAN et al.
• Court: Missouri Court of Appeals

259 S.W. 496

FOULKE v. HICKMAN et al.

No. 3398.

Springfield Court of Appeals, Missouri.

February 27, 1924.

Appeal from Circuit Court, Jasper County; S. W. Hater, Judge.

Interpleader action by W. H. Foulke against Ray Hickman and Hazel Hickman, interpleaders. From a judgment in favor of Ray Hickman, Hazel Hickman appeals. Affirmed.

Amo Fitzpatridk, of Joplin, for appellant.

Owen & Davis, of Joplin, for respondent.

COX, P. J.

This is an interpleader action, and the controversy is between the two defendants, interpleaders. The plaintiff, W, H. Foulke, is an attorney at law, and as counsel for interpleader, Ray Hickman, collected $3,000 for Hickman as the proceeds of a sale by him of his interest in certain real estate. Ray Hickman and Hazel Hickman were at that time husband and wife, and both laid claim to the balance of the money in Mr. Foulke's hands, and he brought this suit to have the court determine to which of the parties he should pay the money. The parties appeared, and he paid the money into court and was discharged. A trial of the issues between the interpleaders was had before the court without the aid of a jury. The court found in favor of Ray Hickman, and Hazel Hickman appealed.

The title to the land sold was in Ray Hickman. One of the issues in the case rested on the contention of his wife, Hazel Hickman, that she had refused to sign a deed to the land which he had sold, and in order to induce her to sign it he promised her that when the consideration, which amounted to $3,000, was collected, she should have one-half of it, and in consideration of that agreement on his part she signed the deed which released her inchoate right of dower in the land sold. She contended that under that agreement she was entitled to all of the $1,000 then on deposit in court. There was evidence pro and con as to whether Ray Hickman had agreed that one-half of the consideration realized on the sale should be paid to his wife, Hazel Hickman. Her testimony tended to show that the agreement was made and that such agreement was the consideration for her joining in the execution of the deed to the lands. This was disputed by the evidence on the part of Ray Hickman. The court made no finding of facts and no declarations of law were asked or given, so there is nothing before us to show on what theory the court found in favor of Ray Hickman, and we must therefore assume that he correctly applied the law and found as he did on the weight of the evidence. This being a law action, his finding binds us and cannot be disturbed by us as to that issue.

It is further contended by Hazel Hickman that in addition to the oral agreement between her and her husband at the time the deed to the land was executed, her husband had afterward agreed that if she would induce her mother to loan him $200 that he would make good his former promise, and that what money was left after the $200 and certain other debts were paid should be paid to her; that she induced her mother to loan him the $200, and then the following instrument, which she denominates a "contract," was drawn up and signed by Ray Hickman and W. H. Foulke, to wit:

"This agreement, made and entered in by and between Ray M. Hickman and W. H. Foulke, this eleventh day of July, the conditions of which are as follows:

"Whereas, W. H. Foulke now has in his possession certain papers and upon the delivery of said papers he shall receive for and on behalf of Ray M. Hickman the sum of two thousand dollars ($2,000.00):

"The payment of said sum is directed and authorized by the said R. M. Hickman, that is that the said W. H. Foulke is directed to pay the sum of two hundred dollars to Electa Brown in full payment of a certain note of said sum and of this date. The remainder of said money to be paid six hundred and fifty dollars to Lydia Hickman, eleven hundred and fifty dollars ($1,150.00) to be paid to Hazel M. Hickman.

"It is agreed upon the part of W. H. Foulke that he has been fully paid for the collection and distribution of the said sum of money and that no fee is due or shall be collected.

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