Green v. Whaley., No. 19216.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtWhite
Citation197 S.W. 355,271 Mo. 636
PartiesGREEN v. WHALEY.
Docket NumberNo. 19216.
Decision Date16 July 1917
197 S.W. 355
271 Mo. 636
GREEN
v.
WHALEY.
No. 19216.
Supreme Court of Missouri, Division No. 2.
July 16, 1917.

[197 S.W. 356]

Appeal from Circuit Court, Lawrence County; Carr McNatt, Judge.

Action by Edward Green against James D. Whaley, administrator of David J. Green, deceased. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

This is the second appearance of this case in this court. The opinion on former appeal was reported in 258 Mo. 530, 167 S. W. 575. 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.

[197 S.W. 357]

The plaintiff, Edward Green, and his brother, David J. Green, appeared in Pierce City, Mo., 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 Bros. After that the following deposits were made to the credit of Green Bros.: 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 Bros. began to lend it, and made the following loans: August 15, 1905, to W. A. Winton, $1,400; August 25, 1905, to W. F. Cagle, $2,750; 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 $2,000, to be loaned on farms in Barry county, on September 28, 1905, and that David J. Green invested $1,000 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 $1,000. The seventh count alleges that plaintiff furnished his brother $1,000 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 collected and converted the proceeds of the same. The petition in each count alleges that the money representing these various transactions was the money of Edward Green; that there was an agreement between Edward Green and David J. Green that the loans mentioned should be made in such way that the notes would go to the survivor of the two on the death of the other; that accordingly the notes were made payable to David J. Green, and by him indorsed and kept in a safety deposit box, so that in case of his death they would be the property of Edward, and in the case of the death of Edward they would be the property of David J.

About the time the Green Bros. opened their account at the Pierce City National Bank they began a produce business in Pierce City under the style of Green Bros., and conducted it about one year, until May 26, 1906, when they quit the business. Whether they sold it to some one else, or how the business was closed, does not appear. At that time they had $1,100 in the Pierce City National Bank and drew it out by check. At the same time there was deposited to the credit of Edward Green $571.06, and to the credit of David J. Green $597.06. Each brother had a separate account during the time they were carrying on this produce business, and each of them had a personal safety deposit box in the bank. All checks drawn on the account of Green Bros. were written by Edward Green; none of them was written by David J. Green. After the closing of the partnership business, on May 26th, Edward Green continued for a while buying eggs and poultry in his individual name, but soon after left Pierce City, while David J. Green remained there. David J. Green died in April, 1907, about 11 months after the business of Green Bros. in Pierce City was closed. The notes representing the loans above mentioned were found in his safety deposit box and were inventoried as a part of the assets of his estate by his executors. For some reason, the executors later quit their job and the defendant administrator took charge of the estate.

The answer of defendant, among other defenses, sets up that during the year 1905, and until May 26, 1906, Edward Green and David J. Green were partners; that their partnership was finally dissolved on the latter date, and final settlement and accounting was had, in which all matters and accounts between them were finally closed and settled. It does not allege that the notes mentioned went to David J. Green in that settlement.

The plaintiff introduced the depositions of several witnesses whose testimony was taken in Chicago. These depositions show that Edward Green went to Chicago in 1895, David J. Green going some time later; that Edward Green, upon arriving in Chicago, went into the shoe business, which was conducted for about 10 years, until April 1905, when he sold out and went to Pierce City. This business in Chicago seems to have been conducted all the time in the name of Green Bros. There was also carried on, part of the time while they were in Chicago, a commission business in the name of Green Bros. It is shown in the depositions that Edward Green managed the shoe business, wrote all checks, employed help, claimed all the money that went into it, and when the business was sold out the purchase price was paid to him; that David J. Green made statements admitting he had no money and put none in the business. David J. Green was not consulted in the sale of the business, and all the transactions were conducted by Edward Green. These depositions further show that David Green was in poor health when he came there, embarked in business of his own at first, in which he failed, and afterwards continued with his brother in the shoe business. No testimony was offered by the defense to offset in any manner these statements.

The plaintiff introduced one Thomas Carlin,

[197 S.W. 358]

who was loan agent for Edward Green and made the loans mentioned above. He testified at length, explaining the manner in which the loans were made, and the agreement between the brothers, made in his presence, relating to the disposition of the notes. He said their purpose was to put the notes in such form that the survivor of the two would receive them on the death of the other, and discussed several methods by which that purpose might be carried out. At first they decided to make the notes payable to both or the survivor of the two. Through some misapprehension they wrote some of them payable to Edward Green and David Green, or "the successor" of them. These were afterwards collected. Subsequently they changed the plan, adopting the one set out in the finding of the court.

The only evidence offered by the defendant in the case was the testimony of Otto E. Helweg, cashier of the Pierce City National Bank, who was one of the executors of David J. Green. He testified to the deposits shown by the records of the bank, as before set forth, the time when the brothers began business and ended it, and the facts in relation to the writing of the checks as stated. The trial court, at the request of the plaintiff, made the following finding of the facts:

"The court, sitting as a jury, finds the facts to be that plaintiff, Edward Green, and deceased. David J. Green, were copartners in the city of Chicago, Ill., during the years 1893 to 1905, in the commission business and a retail shoe store. In what proportion capital invested by the brothers the court don't find, there being no substantial evidence to enlighten it. That the business was sold out in 1905, and David J. Green came to Pierce City, Mo., early in 1905, opened a bank account in his own name, and later engaged in the produce business with his brother Edward, who came to Pierce City in a short time, when the two brothers opened a bank account in the name of Green Bros., and did a produce business in the name of Green Bros. till May 26, 1906, at which time they closed their bank account and divided the money, each depositing his portion of the money to his individual account, when David J. retired from the produce business, which was carried on for a time by Edward Green, the plaintiff.

"That during the time this Green Bros. bank account was carried on the two brothers went to a loan agent (Thos. Carlin), and perhaps other loan agents in Pierce City, and had loans made in the name of David J. Green. The loans made through the office of Thos. Carlin, and some at least made through other brokers, were made with the understanding between the brothers that in case of the death of either the notes should be paid to the survivor, who in such case should own and collect the notes, and that...

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36 practice notes
  • Mo. Dist. Telegraph Co. v. S.W. Bell Tel. Co., No. 34562.
    • United States
    • United States State Supreme Court of Missouri
    • March 18, 1936
    ...at law the trial court should have given all proper declarations of law requested by appellant. Sec. 952, R.S. 1929; Green v. Whaley, 271 Mo. 636, 197 S.W. 355; Sutter v. Raeder, 149 Mo. 307, 50 S.W. 813; Rausch v. Michel, 192 Mo. 302, 91 S.W. 99; Fruin v. O'Malley, 241 Mo. 250, 145 S.W. 43......
  • McGuire v. Hutchison et al., No. 20978.
    • United States
    • Court of Appeal of Missouri (US)
    • March 1, 1948
    ...intended to do a thing which in law constitutes a partnership, they are partners nolens volens. 47 C.J. 654, par. 47G; Green v. Whaley, 271 Mo. 636, 197 S.W. 355; Jones v. Stever, 154 Mo. App. loc. cit. 644, 136 S.W. 16. This mutual intent may be manifested by the terms of the agreement, by......
  • Findley v. Johnson, No. 36058.
    • United States
    • United States State Supreme Court of Missouri
    • May 4, 1940
    ...Plemmons v. Pemberton (Banc), Mo. Sup., 139 S.W.2d 910, April 2, 1940, affirming, Mo.App., 117 S.W.2d 392, 396 [2]; Green v. Whaley, 271 Mo. 636, 654, 142 S.W.2d 66 197 S.W. 355, 361 [13, 15]; Anderson v. Gaines, 156 Mo. 664, 670, 57 S.W. 726, 728; Smith v. Thompson, 250 Mich. 302, 230 N.W.......
  • Finn v. Barnes, No. 34327.
    • United States
    • United States State Supreme Court of Missouri
    • February 5, 1937
    ...to leave his property at his death in a particular way and such contract is enforceable. Wright v. Tinsley, 30 Mo. 389; Green v. Whaley, 271 Mo. 636, 197 S.W. 355; Clark v. Cordry, 69 Mo. App. 6; Sharkey v. McDermott, 91 Mo. 647; McFall v. Hampe, 267 S.W. 54; Hiatt v. Williams, 72 Mo. 214; ......
  • Request a trial to view additional results
36 cases
  • Mo. Dist. Telegraph Co. v. S.W. Bell Tel. Co., No. 34562.
    • United States
    • United States State Supreme Court of Missouri
    • March 18, 1936
    ...at law the trial court should have given all proper declarations of law requested by appellant. Sec. 952, R.S. 1929; Green v. Whaley, 271 Mo. 636, 197 S.W. 355; Sutter v. Raeder, 149 Mo. 307, 50 S.W. 813; Rausch v. Michel, 192 Mo. 302, 91 S.W. 99; Fruin v. O'Malley, 241 Mo. 250, 145 S.W. 43......
  • McGuire v. Hutchison et al., No. 20978.
    • United States
    • Court of Appeal of Missouri (US)
    • March 1, 1948
    ...intended to do a thing which in law constitutes a partnership, they are partners nolens volens. 47 C.J. 654, par. 47G; Green v. Whaley, 271 Mo. 636, 197 S.W. 355; Jones v. Stever, 154 Mo. App. loc. cit. 644, 136 S.W. 16. This mutual intent may be manifested by the terms of the agreement, by......
  • Findley v. Johnson, No. 36058.
    • United States
    • United States State Supreme Court of Missouri
    • May 4, 1940
    ...Plemmons v. Pemberton (Banc), Mo. Sup., 139 S.W.2d 910, April 2, 1940, affirming, Mo.App., 117 S.W.2d 392, 396 [2]; Green v. Whaley, 271 Mo. 636, 654, 142 S.W.2d 66 197 S.W. 355, 361 [13, 15]; Anderson v. Gaines, 156 Mo. 664, 670, 57 S.W. 726, 728; Smith v. Thompson, 250 Mich. 302, 230 N.W.......
  • Finn v. Barnes, No. 34327.
    • United States
    • United States State Supreme Court of Missouri
    • February 5, 1937
    ...to leave his property at his death in a particular way and such contract is enforceable. Wright v. Tinsley, 30 Mo. 389; Green v. Whaley, 271 Mo. 636, 197 S.W. 355; Clark v. Cordry, 69 Mo. App. 6; Sharkey v. McDermott, 91 Mo. 647; McFall v. Hampe, 267 S.W. 54; Hiatt v. Williams, 72 Mo. 214; ......
  • Request a trial to view additional results

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