Green v. Whaley
| Decision Date | 16 July 1917 |
| Parties | EDWARD GREEN, Appellant, v. JAMES D. WHALEY, Administrator of Estate of DAVID J. GREEN |
| Court | Missouri Supreme Court |
Appeal from Lawrence Circuit Court. -- Hon. Carr McNatt, Judge.
Reversed and remanded.
W. B Skinner, Thomas Carlin and I. V. McPherson for appellant.
(1) The conduct and admission of David J. Green at the very time the method of loaning the money was being agreed upon, and his statements, conduct and declarations while it was being loaned, conclusively show that the fund belonged absolutely to Edward, and that David had no interest in it. There was therefore no evidence in support of the defendant's defense in this respect and the court erred in finding that the loans were made from their joint funds. Willoughby v Hildreth, 182 Mo.App. 80; 30 Cyc. 42, 403-410; Gatewood v. Bolton, 48 Mo. 78; Boon v Turner, 96 Mo.App. 635; Ashley v. Shaw, 82 Mo. 76; Chapin v. Cherry, 243 Mo. 375; Smith v. Shotliff, 169 Mo.App. 66; In re Swift, 118 F. 348; Mining Co. v. Swope, 204 Mo. 48; Spurlock v. Wilson, 160 Mo.App. 14. (2) The court erred in finding that a settlement and accounting were had between the plaintiff and the deceased of the notes and money sued for and in refusing plaintiff's declaration of law number 9. The defense of settlement and accounting of the transactions involved in this suit was an affirmative defense, in the nature of an accord and satisfaction. The burden was therefore on the defendant to allege and prove this defense. It is not enough that the brothers dissolved the partnership; it is not sufficient that they divided the balance on hand at the time in the partnership account, if it was a partnership account. They must have settled and adjusted these transactions. There was no showing that the loans were divided, or that a settlement of the loans was had. Therefore the court erred in finding there was a settlement and division and that the contract was rescinded and their object abandoned and in refusing plaintiff's declaration that there was no such evidence. Investment Co. v. Bernardon, 164 Mo.App. 384; Bank v. Stewart, 136 Mo.App. 34-35; Jones v. Rush, 156 Mo. 371; Trimble v. Railroad, 199 Mo. 44; Greenway v. James, 34 Mo. 326; Bahrenburg v. Fruit Co., 128 Mo. 526; Supply Co. v. Wolfe, 127 Mo. 616; B. & L. Assn. v. Barrett, 10 Mo.App. 177; Murphy v. D. & C. Co., 187 Mo.App. 577. The partnership, if one existed, was to conduct a produce business. The transactions in suit were outside and beyond the scope of that business, and a settlement and accounting of the partnership affairs would not include the transactions in suit. If there was such partnership, and if there were a settlement and adjustment of its affairs, proof of those facts would not prove the adjustment and settlement of these transactions outside and beyond its scope. 30 Cyc. 684; Burress v. Blair, 61 Mo. 133; Spurlock v. Wilson, 160 Mo.App. 14; Rushing v. Peoples, 42 Ark. 390; Price v. Hicks, 14 Fla. 565; Mining Co. v. Swope, 204 Mo. 48. The court found that there was a contract to draw money from the partnership account and loan it; take notes in David's name, to be endorsed and held by him in his safety deposit box in the bank; that each of said notes should belong to whichever of the brothers was the survivor. This was a valid and binding contract and the declarations of law asserting that fact should have been given. German v. Gilbert, 83 Mo.App. 412; Wilt v. Hammond, 179 Mo.App. 406; Stellwagen v. Grissom, 177 S.W. 636; Taylor v. Hudson, 145 Mo.App. 377; Sharkey v. McDermott, 91 Mo. 647; Wright v. Tinsley, 30 Mo. 389; Merrill v. Thompson, 252 Mo. 714; Clark v. Cordy, 69 Mo.App. 6; Gupton v. Gupton, 47 Mo. 37; Sutton v. Haydon, 62 Mo. 101; Wellington v. Apthorp, 145 Mass. 69. (3) The court erred in refusing declaration of law number 8, requested by plaintiff. This declaration affirmed that it made no difference under the contract found by the court to exist between the brothers, whether the money loaned belonged to the plaintiff alone or whether it belonged to a partnership of which they were both members. Moss v. Green, 41 Mo. 390; Scribe v. Neeley, 130 Mo.App. 258; Perry v. Cooper, 8 Mo. 206; Harrington v. Neville, 83 Mo.App. 589; Hudson v. Browning, 264 Mo. 58; Weise v. Moore, 22 Mo.App. 530; Swinney v. Gouty, 83 Mo.App. 549; McCoy v. Hyatt, 80 Mo. 130. Under the contract decedent's interest in each of the notes was sold to plaintiff for a valuable consideration upon a contingency; that is, upon the condition that he outlived David J. Green. Hamilton v. Clark, 25 Mo.App. 429; Glass v. Brazer Bros., 91 Mo.App. 564.
S. H. Lattimore, J. M. McPherson and W. Claud for respondent.
(1) After having the court make special findings of facts, under Sec. 1972, R. S. 1909, separate from his conclusions of law, which need be but a general finding upon all the facts as found, the appellant has endeavored to have the court do the inconsistent thing of making declarations of law based upon a different and hypothetical state of facts. And such a course of procedure is expressly condemned by this court in the case of Kostuba v. Moeller, 137 Mo. 161, 38 S.W. 946. Clearly the respondent was entitled to a judgment in his favor upon the facts found by the court. It is incumbent then upon the appellant to overturn those findings of fact; and to do so in this court he must show that there was a complete failure of proof tending to support them. Williams v. Monroe, 125 Mo. 574; Sutter v. Raeder, 149 Mo. 297; Hamilton v. Boggess, 63 Mo. 233; Pitts v. Sheriff, 108 Mo. 110; Railroad v. News Co., 151 Mo. 373. A finding of the trial court on conflicting evidence is conclusive on appeal. Investment Co. v. Bernardon, 164 Mo.App. 384. (2) The opinion of this court in the former appeal recites that some $ 18,000 was deposited in Pierce City. That a partnership existed in the latter place is the only reasonable conclusion to be reached from the evidence. David came first to Pierce City and opened a personal account, going into business at the time. Later Edward arrived and the business of Green Brothers was opened up and continued for slightly over a year. On May 26, 1906, the funds in the bank were divided between the two; Green Brothers ceased operation; David retired; Edward continued in business in his own name for a time and then left Pierce City. Aside from the question of any arrangement or agreement between the brothers at the time the loans were made, the judgment must have been in favor of the respondent because of the finding of the court that prior to the death of David there was a settlement and adjustment not only of the partnership but of all these matters now in dispute. And that finding is supported by the evidence.
This is the second appearance of this case in this court. The opinion on the former appeal was reported in 258 Mo. 530. The action was brought by Edward Green, in seven counts, to recover the proceeds of certain notes found among the papers and assets of his brother David J. Green on the latter's death, which notes the plaintiff claimed belonged to him by reason of an agreement made with his brother whereby said notes should become the property of the survivor of the two brothers on the death of the other.
On the former appeal this court held that a case was not made out for money had and received so as to sustain the petition as it then stood. After the cause was remanded the petition was amended to meet the objection which caused the reversal of the case.
The case was tried without a jury and the trial court, at the request of plaintiff, made and filed a finding of facts. Inasmuch as the appellant challenges the sufficiency of the evidence to support the finding in some particulars it will be necessary to give a full statement of the facts.
The plaintiff, Edward Green, and his brother, David J. Green, appeared in Pierce City, Missouri, in April, 1905. Whether the brothers came together or one came in advance of the other the evidence does not show. It does show that David J. Green opened an account with the Pierce City National Bank on April 7, 1905, by depositing $ 500 in his own name, and on May 11, 1905, $ 650 was deposited to the credit of Green Brothers. After that the following deposits were made to the credit of Green Brothers: July 3, 1905, $ 5,000; July 11, 1905, $ 2,000; August 9, 1905, $ 5,000. These deposits made in July and August were from cashier's checks of the First National Bank of Chicago. Soon after this money arrived Green Brothers began to lend it and made the following loans: August 15, 1905, to W. A. Winton, $ 1400; August 25, 1905, to W. F. Cagle, $ 2750; August 29, 1905, to George Denver Banks, $ 700; August 29, 1905, to John H. Banks, $ 700; September 7, 1905, to G. M. Ford, $ 800.
All these loans were secured by real estate, and the notes representing the same were collected and the money converted by the defendant, administrator of David J. Green; they are the subjects of the causes of action stated in the first, second, third, fourth, and fifth counts of the plaintiff's petition.
The sixth count of the petition alleges that the plaintiff furnished David J. Green $ 2000 to be loaned on farms in Barry County, on September 28, 1905, and that David J. Green invested $ 1000 of the money in land and took the title in his own name, and that the estate of David J. Green therefore, owes the plaintiff the sum of one thousand dollars. The seventh count alleges that plaintiff furnished his brother $ 1000 to loan on real estate and the same was loaned by David J. Green to one John H. Elting, who executed his note therefor secured by real estate, and the administrator of the estate of David J. Green...
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