Green v. Whaley

• Decision Date: 24 March 1914
• Docket Number: No. 16237.,16237.
• Citation: 167 S.W. 575,258 Mo. 530
• Parties: GREEN v. WHALEY.
• Court: Missouri Supreme Court

167 S.W. 575

258 Mo. 530

GREEN v. WHALEY.

No. 16237.

Supreme Court of Missouri, Division No. 2.

March 24, 1914.

Rehearing Denied May 26, 1914.

MONEY RECEIVED (§ 3) — RIGHT OF ACTION — RECEIPT OF PROPERTY OTHER THAN MONEY.

Where money deposited in the name of two brothers, but claimed by one as his individual property, was loaned on notes made payable to the other, which notes were kept by the payee until his death, with the understanding that, if he survived his brother, the notes were to become his, otherwise to become the property of the brother claiming the money on the death of the payee, the payee's estate was not liable to the brother for the amount so loaned in an action for money had and received, even though the brother was entitled to the possession of the notes.

Appeal from Circuit Court, Lawrence County; F. C. Johnston, Judge.

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

Action for money had and received. Verdict and judgment for plaintiff, and defendant has appealed.

Edward Green the plaintiff, and David Joseph Green were brothers, born in Germany. About 1893 the shoe business of Green Bros. was carried on in Chicago. About 1900 Green Bros. sold out of the shoe business, and went into the commission business in that city, it being principally poultry and eggs. In the spring of 1905 the business in Chicago was sold and resumed in Pierce City, Mo., under the same name. Soon after the removal to Pierce City, about $18,000 was deposited in different sums in the Pierce City National Bank to the credit of Green Bros. A similar account had been kept in a Chicago bank. Soon after the brothers came to Pierce City, two loans were made out of the funds of Green Bros. in the bank, one for $2,300 and one for $500, the notes being payable to Edward Green and David J. Green, or the survivor. Afterward loans were made out of that fund on notes payable to David J. Green, as follows:

                August 19, 1905 .................... $1,400
                   "   25,  "    ...................  2,750
                Sept. 1,    "    ...................   700
                 "    5,    "    ...................   700
                 "    7,    "    ...................   800
                

On September 28, 1905, a check was drawn on that account payable to David J. Green for $2,000, which was used by him in making a loan of about $1,000, the other $1,000 being used in the purchase of land which was conveyed to him. Those notes were all secured on real estate by deeds of trust in which Edward was made trustee.

The evidence for the plaintiff was to the effect that the plaintiff was the sole owner of the business of Green Bros., both while in Chicago and in Pierce City; that David J. Green was weak-minded, without financial means, and dependent on the plaintiff, receiving a small salary from the plaintiff for what he did in connection with the business of Green Bros.

Mr. Carlin, one of plaintiff's counsel, testified that he attended to making the loans; there were others made out of the same fund on notes payable to Edward Green; that the notes representing the two first loans, which were made payable to both the brothers, were kept by Edward in his possession; that David J. became dissatisfied and fearful that he, in case of Edward's death, would not be able to control the notes, and insisted that the notes should be made payable to him; that Edward stated to Mr. Carlin in David's presence that the money was Edward's, and that the purpose in making the...