Glynn v. Glynn

• Decision Date: 28 May 1956
• Docket Number: No. 7451,7451
• Citation: 291 S.W.2d 190
• Parties: Lucille GLYNN, Plaintiff-Respondent, v. H. L. GLYNN, Defendant-Appellant, and B. F. Thompson, Incorporated, a Corporation, Defendant.
• Court: Missouri Court of Appeals

Page 190

291 S.W.2d 190

Lucille GLYNN, Plaintiff-Respondent, v. H. L. GLYNN, Defendant-Appellant, and B. F. Thompson Incorporated, a Corporation, Defendant.

No. 7451.

Springfield Court of Appeals, Missouri.

May 28, 1956.

Eugene E. Northern, Rolla, Wm. J. Becker, Clayton, for appellant.

Edgar Mayfield, Lebanon, for respondent.

McDOWELL, Presiding Judge.

This appeal is from a judgment for $1,570.09 in favor of plaintiff and against defendant, H. L. Glynn, rendered on count 3 of plaintiff's amended petition for monies collected on a note for $3,500 held by the parties as an estate by the entirety.

The original action was in four counts and named as defendants H. L. Glynn and B. F. Thompson, Inc. Two promissory notes were involved. The first two counts sought an accounting for the proceeds of said notes against both defendants; counts 3 and 4 sought a judgment against defendant, Glynn, for one-half of the monies collected on said notes. A motion to dismiss, filed by B. F. Thompson, Inc., was sustained at the close of plaintiff's case; the cause proceeded against defendant, Glynn, resulting in a judgment in favor of plaintiff on count 3 of the petition for $1,570.09 and for defendant, H. L. Glynn, on counts 1, 2, and 4.

Count 3 of plaintiff's amended petition alleged that on March 6, 1951, plaintiff and defendant were husband and wife; that on that date they purchased from B. F. Thompson, Inc., a promissory note, secured by deed of trust, in the sum of $3,500; that this note was exeucted by P. N. Milward and Nellie V. Milward to B. F. Thompson, Inc., payee, in the sum of $3,500, bearing interest at six per cent annually and payable in monthly instalments of $35 each; that B. F. Thompson, Inc., duly assigned said note and security to Lucille Glynn and H. L. Glynn and agreed to service the loan for a commission of one-half of one per cent; that plaintiff and the defendant owned the note as tenants by the entirety; that on March 11, 1953, they were divorced and thereafter became the owners of said note as tenants in common, each being entitled to one-half of the proceeds thereof; that defendant has come into possession of the proceeds of said note and converted them to his own use and because of such facts plaintiff has been damaged in the sum of $1,750.

The separate answer of H. L. Glynn admits the purchase of the note as alleged denies that plaintiff has any interest therein or furnished any money for the purchase thereof; admits that defendant received all of the instalment payments collected by B. F. Thompson, Inc., and that after the divorce he collected the entire amount due on the note. The marriage between plaintiff and defendant is admitted and the date of the divorce, March 11, 1953. Defendant specifically pleads that all of the property rights between plaintiff and the defendant were settled in the divorce action.

Defendant assigns two allegations of error. First, that the evidence was insufficient to support the findings of the trial court that the $3,500 note was held as an estate by the entirety. Second, the trial court erred in considering evidence in the nature of a memorandum contained on a book account of one of plaintiff's witnesses without requiring testimony to identify the contents of the memorandum to be a true and correct copy of the endorsement on the lost or destroyed note.

In our opinion we will refer to appellant as defendant and respondent as plaintiff, the position they occupied in the lower court.

The evidence shows that on February 24, 1951, B. F. Thompson, Inc., a Missouri corporation with offices at Rolla, Missouri, loaned the sum of $3,500 to P. N. Milward and Nellie V. Milward, taking a note and deed of trust as security from the Milwards. This note was in the principal amount of $3,500 with interest at the rate of 6 per cent, payable at the rate of $35 per month, said payments including principal and interest, with the first payment due April 1, 1951. Prior to making this loan, Mr. B. F. Thompson, president of B. F. Thompson, Inc., had discussed this particular loan with the defendant, and defendant had told Mr. Thompson that he would buy the loan. Thereafter, defendant discussed the loan with plaintiff, who was at that time defendant's wife. They looked over the property on which the deed of trust was to be executed, and in a few days defendant told plaintiff that he would give her the money to buy the loan. Defendant obtained proper authority for the plaintiff to gain access to a safety deposit box in a St. Louis bank, and plaintiff went to St. Louis, entered the box and obtained therefrom $3,500 in cash. She returned to Rolla, Missouri, and deposited this money in her bank account. She then went to the offices of B. F. Thompson, Inc., wrote the company a check for $3,500 which she gave to Mr. Thompson and he, in turn, gave her the Milward note and deed of trust. When this Milward note was so purchased, it was assigned to 'Dr. H. L. Glynn or Lucille Glynn.'

Plaintiff had nothing to do with the arrangements made by defendant and Mr. Thompson concerning this transaction. The defendant made all of the arrangements with Mr. Thompson and told Thompson how to assign the note. Everything concerning the purchase of the loan was handled by the defendant except the actual delivery of the check and the picking up of the note, deed of trust and other papers. Thereafter, B. F. Thompson, Inc., collected the monthly payments on this loan and remitted same to defendant, until October, 1953, after which the company no longer serviced the loan. The balance remaining unpaid on the note as of October 9, 1953, following the last payment collected by B. F. Thompson, Inc., was $2,915.90. On November 23, 1953, this balance was paid in full to the defendant by the Milwards through the bank. When the note was so paid, the note and deed of trust were turned over to the Milwards and Mrs. Milward destroyed them.

The defendant and plaintiff were divorced by a decree of the Circuit Court of Phelps County, Missouri, on March 11, 1953. As of the date of the divorce, the unpaid balance on the Milward note was $3,055. Thereafter, defendant received $236.28 in payments on the note from B. F. Thompson, Inc., said sum being the net amount received after deduction of the company's collection fee, and he received the final lump sum payment of $2,915.90 on November 23, 1953. Plaintiff never received any of the money or proceeds from the Milward note, and defendant admitted that he received all of the proceeds from this note with the exception of the small collection fee deducted from each payment by B. F. Thompson, Inc., for servicing the loan. Concerning the Milward loan, plaintiff testified that defendant had told her that the money would be hers; that it would be 'our loan'. She further testified that in discussing both the Milward loan and the Carty loan, defendant had said that he would make some provision for her 'due to the fact that everything he had was in his mother's name, and if anything happened, I wouldn't have anything to live on'.

Defendant denied that he had ever told plaintiff that he would give her the deed of trust and the note secured thereby. He could not recall ever telling Mr. Thompson how to endorse the note. He stated he did not know how the notes were assigned. While defendant and plaintiff were still husband and wife, they had executed a quit-claim deed releasing a part of the land described in the Carty deed of trust from the lien, which quit-claim deed contained the following words: 'This deed of quit-claim, being made in release of and satisfaction in part for a certain deed of trust, dated January 24, 1952, recorded in the Recorder's Office, within and for said County of Phelps aforesaid, in Book 71, page 615. The grantors herein being the assignees of said deed of trust and note.' Defendant testified that he had not read those words in the deed.

Mr. B. F. Thompson testified that he was the official custodian of the records of B. F. Thompson, Inc. He described how the records were prepared on each loan made by the company and what information was contained in the records. This information included 'the name the note was assigned to'. He stated that this was the normal and regular course of business procedure, and that all such records were prepared from information taken directly from the notes and deeds of trust covering the various loans. He testified that he actually prepared the record on the Milward note in the usual manner as described and that record showed, among other things, the following '* * * note assigned to Dr. H. L. Glynn or Lucille Glynn; * * *'. In reply to the question of how B. F. Thompson, Inc., happened to assign the Milward note to Dr. and Mrs. Glynn, he said, 'If I remember right, Dr. instructed us to do that.'

We will first consider defendant's second assignment of error, that is, that the trial court erred in admitting in evidence and considering the contents of business records of B. F. Thompson, Inc., in determining how the Milward note was assigned.

It is admitted that the promissory note in question was by the defendant deposited with the bank in Rolla, Missouri, for collection and was paid in full by the makers, the note surrendered to them and destroyed.

B. F. Thompson testified that he was the president of B. F. Thompson, Inc., and was the official custodian of the records of said corporation. He testified that he personally handled the sale of this note, received from plaintiff the payment for the same and delivered it to her. He gave this testimony:

'Q. Now, did you--when you delivered the note, did you endorse it in any manner? A. We endorsed it; yes, sir.'

He testified that after he delivered the note to plaintiff he never saw it any more. He testified:

'Q. Do you remember the actual date that you assigned the note for endorsement and sold it? A. Well, according to our records here, it was on March the 6th, 1951.

'Q. Do...