Gooldy v. Lavender

• Decision Date: 07 May 1929
• Parties: CHARLES GOOLDY, CLAIMANT, RESPONDENT, v. J. E. LAVENDER, EXECUTOR OF THE ESTATE OF W. A. CARNEFIX, DECEASED, APPELLANT. [*]
• Court: Missouri Court of Appeals

16 S.W.2d 681

223 Mo.App. 354

CHARLES GOOLDY, CLAIMANT, RESPONDENT, v. J. E. LAVENDER, EXECUTOR OF THE ESTATE OF W. A. CARNEFIX, DECEASED, APPELLANT. ^[*]

Court of Appeals of Missouri, St. Louis

May 7, 1929

Appeal from the Circuit Court of Montgomery County.--Hon. Emil Roehrig, Judge.

REVERSED.

Judgment reversed.

Greensfelder Rosenberger & Grand and Glover E. Dowell for appellant.

(1) Where the demand is an entirety, although consisting of several items, if judgment be recovered for part of it, the judgment is a bar to an action for the remainder. Wagner v. Jacoby, 26 Mo. 532; Savings Bank v. Tracy, 141 Mo. 258; See v. See, 242 S.W. 949, 294 Mo. 495; Bircher v. Boemler, Ex., 204 Mo. 554. (2) (a) Where the deceased boarded and lodged with plaintiff and paid plaintiff at stated intervals for such board and lodging, and in addition to furnishing the deceased with such board and lodging, plaintiff performed extra services for the deceased such as nursing and waiting upon the deceased when he was sick or needed attention, the plaintiff presents a demand against the deceased's estate for such extra services the burden of proof is upon plaintiff to prove his own and deceased's intention that such extra services were to be paid for by the deceased and for failure to make such proof, plaintiff ought to be nonsuited. Watkins v. Donnelly, 88 Mo. 322; Sidway v. Land and Live Stock Co., 163 Mo. 385; Burt et al. v. Gabbert, 160 S.W. 838; Woolridge v. Bryn, 270 S.W. 658, 307 Mo. 234; Thomas v. Fitzgerald's Estate, 297 S.W. 425; Howard v. MacGregor, 128 A. 518, 102 Conn. 331; 24 Corpus Juris, pp. 278-279-280 and cases cited under footnotes. (b) Claimant is estopped from a recovery in this action for two reasons: First: His conduct and silence during the deceased's lifetime estops him. Cornwall v. Ganzer, 85 Mo.App. 678; Davis v. Lea, 239 S.W. 823, 293 Mo. 660; Englehardt v. Gravens, 281 S.W. 715; 21 Corpus Juris, page 1060. Second: By laying claim to the $ 500 legacy mentioned in the will of the deceased, plaintiff is estopped. Austin v. Collins, 297 S.W. 36; Fox v. Windes, 127 Mo. 502, 30 S.W. 323; Watson v. Watson, 128 Mass. 152; Utermahle v. Norment, 3 Am. & Eng. Ann. Cas. 520, and cases cited in Editor's notes; Bowen v. Howenstein, 30 Am. & Eng. Ann. Cas., 1913E, 1179, and cases cited under Editor's note. (c) The demurrer at the close of the case should have been given because plaintiff split his demand. (3) There was no evidence proving, or tending to prove, that it was understood and agreed between the claimant, Gooldy and the defendant, Lavender, that the demand here sued for and the said demand for $ 95.95 were to be treated and presented against the estate of W. A. Carnefix as separate and distinct demands; furthermore the executor would have no authority to enter into any such agreement. The two demands did not grow out of separate contracts or agreement, but the question as to whether the two demands did grow out of separate contracts or agreements was a question of law for the court to determine, and not a question of fact to be determined by the jury.

W. C. Hughes and N. T. Cave for respondent.

(1) There is not a splitting of a cause of action if the matters sued on arise out of separate contracts. Alkire Grocery Company v. Taggart, 60 Mo.App. 393; Ruddle v. Horine, 34 Mo.App. 616; Pepper Automobile Co. v. Trust Co., 187 S.W. 111; Loyess v. Roberts, 253 S.W. 209; Berkshire v. Hall, 202 S.W. 414; 23 Cyc. 438-439; 82 Mo.App. 607; Railroad Co. v. Traube, 59 Mo. 355. (2) A debtor may waive the splitting of a cause of action. Edmonston v. Jones, 96 Mo.App. 91; Bank v. Noonan, 88 Mo. 372; Putthoff et al. v. Walker et al., 248 S.W. 619. (3) An administrator or executor may waive the splitting of a cause of action. Kavanaugh v. Schaughnessy, 41 Mo.App. 657. (4) The court did not commit error in refusing to sustain appellant's demurrer at the close of the evidence, because there was sufficient proof to submit the cause to the jury. Brown v. Howelman, 288 S.W. 1067; Brunnert v. Roeckmann's Estate, 276 S.W. 92; Lauf v. Wiegersen, 295 S.W. 495; Smith v. Admr., 258 S.W. 1032; Shern v. Sims, 258 S.W. 1029; Elsroth v. Karrenbock, 285 S.W. 525; Smarr v. Smarr, 283 S.W. 461; Miller v. Smith, 275 S.W. 769.

NIPPER, J. Becker, J., concurs. Haid, P. J., not sitting.

OPINION

NIPPER, J.

This suit originated by Charles Gooldy filing in the probate court of Montgomery county, a claim against the estate of W. A. Carnefix, deceased, whereby Gooldy demanded of said estate the sum of $ 4917.50. The case was taken to the circuit court and there the claimant recovered judgment against the said estate in the sum of $ 1700. From this judgment the executor has appealed.

The record discloses that there was a plea in abatement filed by appellant, setting up the grounds that claimant split his cause of action, but this was overruled.

It appears from the evidence that for a number of years prior to the spring of 1924, W. A. Carnefix, who lived near McKittrick, in Montgomery county, had been spending his winters at the Fulton Hotel in Fulton, Missouri, and in the spring he would go back to McKittrick. In the spring of 1924, when he left Fulton he made arrangements with Mr. & Mrs. Gooldy, who were conducting a rooming house in Fulton, to room with them in the fall of 1924 when he again returned to Fulton. The Gooldys conducted a rooming house but did not furnish their roomers with meals. At the time Mr. Carnefix made arrangements to stay with the Gooldys nothing was said about what he was to pay or the price they were to charge him for his room. However, when he returned in the fall of 1924 he took up is abode at the Gooldy home, and took his meals at a cafe in Fulton for a few months. In the early part of the year 1925, he became ill and was unable to go to the cafe for his meals. Sometimes his meals were sent to him from the cafe and sometimes Mr. Gooldy would go get them for him. Carnefix was an old man, then past eighty years. He stayed at the Gooldys from that time until October, 1926, when he died. He made these trips to Fulton in order to have his eyes treated. It appears that he had cataracts on his eyes; was blind in one eye and could not see well out of the other. He was a large man, weighing over two hundred pounds. When he first went to the Gooldys he paid $ 3.50 a week for his room, and then when he became sick in the spring of 1925 he made arrangements to take his meals at the Gooldy home, for which he had at first paid $ 3.50 per week, and later this was raised to $ 4.50 per week.

It is unnecessary to go into the details as to the helpless condition of Mr. Carnefix while he stayed at the Gooldys, or the extreme trouble he made for them. The evidence shows conclusively that he had to be helped to the bath room, and was an unusual care and burden for those who took care of him. At one time the suggestion was made that he should be taken to the hospital. When that was done he cried and wanted to stay with the claimant and his wife because he said they had been good to him. The services rendered to Mr. Carnefix by the Gooldys were excellent, and his condition was such that he required an unusual amount of attention.

The principal question involved here is whether or not respondent split his cause of action, or whether or not the two claims arose out of distinct contracts and understandings. Therefore, we must discuss the evidence with respect to this particular phase of the case. When Mr. Carnefix died and Mr. Gooldy visited Mr. Lavender at his bank in Montgomery county with respect to some current expenses amounting to about $ 95 he told Mr. Lavender, who was the executor, that he and his wife were not satisfied and felt like they should have some additional pay for the services they had rendered to Mr. Carnefix. Mr. Lavender, who appears to have been a generous man, asked Mr. Gooldy what he would want. Mr. Gooldy told him he thought they should have something like the charges they make in a hospital. He was then told by Mr. Lavender to go home and talk the matter over with his wife and see what they would want. He was requested by Mr. Lavender to talk it over with Mr. Carnefix's nephew, but he did not go to see the nephew at that time because of the condition of the roads, stating that he wanted to get off of the dirt roads and go home. Mr. Lavender said that Mr. Gooldy's conversation indicated to his mind that he intended to make some additional claim.

In September, 1925, Mr. Carnefix made a will, in which he left to the Gooldys $ 500, but after the making of this will he told several witnesses that he wanted the Gooldys well paid for the services rendered him because they had been exceptionally kind. There were several witnesses who testified that Mr. Carnefix had mentioned to them the fact of his making a will, and said that he had given the Gooldys $ 500 as a present, and after so saying, he would make the further statement that he wanted them to be well paid for taking care of him. After Mr. Gooldy had the conversation with Mr. Lavender after Carnefix died, and after Mr. Lavender had told Mr. Gooldy to go home and fix up his account, Mr. Gooldy wrote Mr. Lavender as follows:

"Fulton Mo. 12-2-26.

"Mr....