Greever v. Barker
| Decision Date | 05 April 1920 |
| Citation | 223 S.W. 1087,204 Mo.App. 190 |
| Parties | DANIEL & BELLE GREEVER, Respondent, v. W. F. BARKER, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Macon Circuit Court--Hon. Vernon L. Drain, Judge.
REVERSED.
Judgment reversed.
J. M Jayne for respondent.
E. O Jones and Campbell & Ellison for appellant.
Plaintiffs are husband and wife. They filed a demand for $ 5394.16 in the probate court of Scotland county against the administrator of the estate of Aaron Hilbrant, an uncle of the plaintiff wife. The probate judge being wanted as a witness, the case was transferred to the circuit court of Scotland county. Afterwards a change of venue was awarded to the circuit court of Macon county at LaPlata. The cause was referred to a referee by the latter court. He made his report awarding plaintiffs a balance of $ 2308.41. Defendant filed exceptions to the report which were overruled by the trial court and judgment was rendered for the plaintiffs for that amount. Defendant appealed.
It appears that Aaron Hilbrant died in June, 1915. That in June, 1906, he was brought to the home of plaintiffs (the plaintiff wife being his niece). He was sick and so continued for three weeks, during which time he was boarded and waited upon by plaintiffs. That he owned a home of his own consisting of about 90 acres of land. That in the latter part of the summer (1906) in which he had been brought to their house, they moved to his farm with the agreement that they would "take care of him, nurse him and provide for his wants, and were to receive for their compensation that which would be reasonable and just."
Afterwards, during the first part of the second year, being January, 1908, he was declared by the probate court incapable of managing his affairs and a guardian was appointed for him, who took charge of his estate and remained in charge for more than eight years and up to his death in 1915, when defendant was appointed administrator of his estate. That upon the appointment of the guardian in 1908, he and plaintiffs contracted that plaintiffs would board and care for him and provide him with clothing and other necessities and he (the guardian) "would pay them for said services that which would be just and right under the circumstances."
As stated at the out set plaintiffs filed their demand against the estate in the probate court on the 15th of August, 1915. As will be seen from what we have already stated this demand consisted of items which were authorized by the deceased in the years 1906 and 1907. We say authorized by deceased but we do not mean that they were expressly authorized by him, for there was no evidence of that. But as he went to the house of plaintiffs and remained three weeks while sick, an implied promise arose that he would pay them what it was reasonably worth. And the same may be said of the items of the demand arising after he got well and up to the time of the appointment of his guardian. The items of the account after the appointment in 1908 accrued, of course, against the guardian.
A question of limitation arises which involves two points of view, on two parts of the statute. As the demand was filed in the probate court in August, 1915, the items against deceased in 1906 and 1907 under his implied contract, having accrued more than five years before presenting the demand, are barred under section 1889, Revised Statutes, 1909, of the general limitation statute, unless the whole demand is a mutual running account in which case, if the last item is within five years the whole account is saved by section 1893, Revised Statutes, 1909.
Now in our opinion this account being composed of accruing with the deceased in his lifetime before he was adjudged insane, cannot be connected with items accruing against the guardian after he became insane. The guardianship necessarily broke the continuity of the account. There was a change in one of the parties. In Gerard B. Allen & Co. v. Mining Co., 73 Mo. 688, 693, the account, originally, was a running account for material for a mechanic's lien between Allen & Co., as a partnership and Einstein & Co., as partnership; each became incorporated as a corporation, but continued in furnishing and receiving the material. It was held that the incorporation broke the account. The court said that, "We are of opinion that the continuity of a running account is broken when the party or firm with whom it is made discontinues business and sells out to another party to whom he also transfers his accounts, although the debtor may thereafter chose to continue dealing with the successor of the person or firm with whom he first dealt." The court further said that, The same thing was decided by this court in an opinion by HALL, J.: (Henry v. Mahone, 23 Mo.App. 83.) It follows as we have already said that all items of the account prior to the appointment of the guardian were barred by the general Statute of Limitations at the time this action was instituted.
This part of the claim is also barred by the special statute in relation to guardians. In case of an insane person the guardian must take charge of his estate (section 497, Revised Statutes 1909) and all demands against such estate then existing must be presented to the probate court and notice served on the guardian and "All demands not thus exhibited and presented for allowance in two years from publication of notice of the appointment of the guardian shall be forever barred." [Section 498, Revised Statutes 1909.]
The statute just referred to necessarily applies to demands existing at the appointment of a guardian, or, at least, from the publication of notice; and does not comprehend current claims for expense in caring for the ward and his estate during the guardianship.
But the following considerations show that the entire demand should have been disallowed. By reference to the statute of "Guardians and Curators of Insane Persons" (sections 474 to 533, Revised Statutes 1909), it will be seen...
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