Gottschalk v. Kircher

• Citation: 17 S.W. 905,109 Mo. 170
• Parties: GOTTSCHALK v. KIRCHER.
• Decision Date: 22 December 1891
• Court: Missouri Supreme Court

17 S.W. 905

109 Mo. 170

GOTTSCHALK v. KIRCHER.

Supreme Court of Missouri, Division No. 1.

December 22, 1891.

FRAUD — EQUITY — RESCISSION OF CONTRACT — EVIDENCE.

In a suit to set aside an assignment of a judgment on the ground of fraud, it appeared that there was $7,547 due on the judgment; that it was sold for $400; that at the time of the assignment the purchaser knew that the judgment debtor was dead, leaving an estate of $6,118, while the plaintiff believed that he was still alive, and was without any property; and that the purchaser knew that the plaintiff believed so. Held, that the evidence was sufficient to justify setting aside the assignment.

Appeal from St. Louis circuit court; L. B. VALLIANT, Judge.

Action in the nature of a bill in equity by Louis Gottschalk against Charles E. Kircher to set aside a certain assignment. On hearing, the bill was dismissed, and plaintiff appeals. Reversed.

F. & E. L. Gottschalk, for appellant. Lubke & Muench, for respondent.

BRACE, J.

This is an action in the nature of a bill in equity against the defendant individually, and as administrator of Frederick Brinkhoff, deceased, to set aside the following assignment in writing: "No. 52,415. John Nyhoff, Administrator of Francis Knapp, deceased, vs. Frederick Brinkhoff, Alex. H. Schultz, et al. In the St. Louis circuit court. For value received (to-wit, $400, less expenses) I hereby assign and transfer the judgment recovered in above-styled cause to Charles E. Kircher, which judgment was rendered for $4,932.62 on May 2, 1881, and purchased by me, at administrator's sale, under order of the St. Louis probate court on October 11, 1881, and which sale was approved October 20, 1881. [Signed] LOUIS GOTTSCHALK. St. Louis, May 19th, 1887," — on the ground that the same was procured by fraud.

It appears from the evidence that the plaintiff purchased the judgment described in the assignment on account of some of the Knapp heirs, and that he paid $500 for it; that he afterwards collected about $100 on process against the judgment debtors, other than Brinkhoff; that Brinkhoff was a Catholic priest, having no visible property from which anything could be made; that one Richard Koster, of the same faith as Father Brinkhoff, had acted as attorney for Nyhoff in the administration of the Knapp estate, and the sale of said judgment to plaintiff; that in 1881, after the sale, plaintiff said to Koster that he would be glad to get $500 for the judgment, and, if he (Koster) could find a man to take it off his hands, he would allow him a commission; that Koster made some effort to do so by seeing Father Brinkhoff, and some of the members of his parish; that these efforts continued for a year or two, but, nothing being accomplished, the matter was dropped, Koster reporting to the plaintiff that nothing could be made out of the judgment, as Father Brinkhoff was a poor priest, havng nothing but a fiddle and a few books, and thus the matter stood for some years, the plaintiff in the mean time going to California, and Father Brinkhoff to Europe. The latter returned to St. Louis, and in February, 1887, died there, while the plaintiff was still in California. His effects came into the possession of his sister. They consisted of one life policy in the New York Life Insurance Company for $5,000, for the benefit of his estate; stocks, $250; cash items, $167.95; and other personal property, appraised at $537; the whole, when afterwards reduced to their cash value, amounting to the sum of $6,118.30; besides two life policies in benevolent societies — one for $2,000, the other for $1,000, for the benefit of his heirs. Father Brinkhoff died leaving the judgment and other debts unpaid. Shortly after his death his sister called upon the defendant, disclosed the state of his affairs, and solicited his advice. He thereupon became her adviser, assisted her in the collection of the benevolent policies, and finally became administrator of the estate, and, as such, all the assets of Father Brinkhoff passed into his hands. About six weeks after the death of Brinkhoff, and shortly after defendant's interviews with the sister, and before he became administrator, having previous to the death of Father Brinkhoff been advised of the existence of this judgment, he, with some other members of the parish, who with him were also advised of the existence of this judgment and of Koster's connection with it, called upon Mr. Koster, who knew that Father Brinkhoff was dead, and asked him whether that judgment could be purchased. Mr. Koster said that "he could not tell, but that Mr. Gottschalk had authorized him formerly to sell it, and he would see him again about it." Says Mr. Kircher: "I told him to see Mr. Gottschalk, and give us the price that the judgment could be purchased at, and let me know at the office of the German-American Bank. That there was some estate left, the extent of which I did not know myself exactly, as I had not thoroughly investigated the affair. There was some insurance, — beneficiary certificates. * * * I told him there was some furniture and books, household furniture, and some insurance. * * * I do not remember that I told him what insurance. I told him that it was desirable to get possession of the judgment, as long as there was some private debts of the priest's, for the purpose of canceling those, afterwards by the proceeds of that judgment, and, if there was anything left, they would be paid. * * * I told Mr. Koster that the less he knew the better it was for him in the matter, and he asked me no more questions. * * * I stated to Mr. Koster at that time that we would pay him for his services." Mr. Gottschalk was then in California, where he had been since July, 1886. About six weeks later he returned to St. Louis, ignorant of the fact that Father Brinkhoff had died, and that he had left any estate subject to the payment of his debts. Of his return the defendant informed Mr. Koster, who directly went to Judge Gottschalk's head-quarters at the office of his brother. Of what took place between them, then and after, Gottschalk and Koster give somewhat variant evidence.

Gottschalk testifies: "Mr. Koster asked me whether I still held that judgment. I told him, `Yes.' He then told me that there were several members or trustees of the church of which Mr. Brinkhoff was pastor who thought it looked bad to have a judgment hanging over their pastor's name, and that they were willing to raise a small amount to have that judgment released. I said, `Well, how much are they willing to give?' He said, `About two hundred and fifty dollars.' I told him I would not listen to any such proposition; that I had paid $500 for it, and realized about $100 out of the property of the other defendants. That I could not tell the precise amount. He said, `Well, I don't think these trustees would give that much.' I said, `Well, I will look into the matter, and see how much these parties are out of pocket, and might see the parties, and see what they would do;' but I was not willing to release Mr. Brinkhoff for that small amount, the judgment being heavy. With that we separated. On the next day he came back. He says, `How is that?' I says, `Well, I have looked into the matter, and I am out, as I thought yesterday, (the parties whom I represent are out) about four hundred dollars.' He said, `Well, that is too much. You know how it is with a Catholic priest; he has got nothing but a few books and a fiddle, and you will never make anything out of him.' `Well,' says I, `that don't make any difference; $250 is not enough. I will not do it for less than I am actually out of pocket.' `Well,' says he, `if I do my best to bring them up to that much, you ought to pay me something.' I says, `I will pay you a small amount.' He says, `You ought to pay me about $25 if I get them up to your figure.' `Well,' says I, `I have no objection to paying you that amount.' He said he would see the parties about it, and come back in the afternoon. In the afternoon he came back with the $400. When I was counting it, I said, `Mr. Koster, you know I cannot release Mr. Brinkhoff without releasing all of the defendants on the records of the court, and for that reason I must put it in a different shape. I must make an assignment to you of the judgment, and whatever else is made out of the other defendants, if there ever should be anything made out of them, that, as a matter of course, comes to me. You only want Brinkhoff released.' He says, `I want something in writing to show my parties.' `Well,' says I, `I will give you a writing that I will assign that judgment to you, and that will hold so that you can show it to those people.' Says I, `To whom shall I assign that judgment?' He said, `In the morning, after the thing is completed, I will give you the names, but I cannot do it now, for I don't know whether they will have it assigned to the three trustees or to one.' He then said, `I should insert Mr. Charles E. Kircher's name;' so I sat down and wrote that assignment; * * *" the same being the one hereinbefore set out in the statement. He then continues: "It was then agreed that I should assign that matter on the record, but I told him I could not do it right then, because the sale of the probate court to me had never been entered of record in the St. Louis circuit court, and the judgment, so far as the circuit court was concerned, was still standing in the name of Nyhoff. I told him I would arrange that to-morrow or the day after, and I would get a copy from the probate court of the sale to me, and file that with the papers, and assign it on the margin of the record to Mr. Kircher. In pursuance of that agreement, I ordered a certified copy of the sale of that judgment to me by the probate court, and on the same day, after Mr. Koster had left, drew up the following agreement, the date and the space where Mr. Kircher's name is inserted being left blank: `John Nyhoff, Adm'r of Francis Knapp,...