Griffin v. Priest

• Decision Date: 05 March 1940
• Docket Number: No. 25063.,25063.
• Parties: GRIFFIN v. PRIEST.
• Court: Missouri Court of Appeals

137 S.W.2d 685

GRIFFIN v. PRIEST.

No. 25063.

St. Louis Court of Appeals. Missouri.

March 5, 1940.

As Modified on Denial of Rehearing March 19, 1940.

Appeal from St. Louis Circuit Court; Eugene J. Sartorius, Judge.

"Not to be reported in State Reports."

Proceeding for the final settlement of the account of George T. Priest, administrator c. t. a. d. b. n. of the estate of Elizabeth S. Bailey, deceased, wherein Everett Paul Griffin asked for a balance due amounting to $1,000, with interest on claim theretofore allowed. From a judgment of the circuit court setting aside the judgment of the probate court and allowing the claim for $1,000, with interest at six per cent., the administrator appeals.

Judgment affirmed.

Claude K. Rowland and Thomas E. Gillespie, both of St. Louis, for appellant.

John C. Tobin, of St. Louis, for respondent.

SUTTON, Commissioner.

According to an agreed statement of facts, upon which this cause was tried a the circuit court, Elizabeth S. Bailey, a former resident of the City of St. Louis, died testate at Tampa, Florida, on June 30, 1933. Plaintiff, Everett Paul Griffin, an attorney, prepared her will and was one of the subscribing witnesses thereto. John B. Bennet, L. J. Erler, and the St. Louis Union Trust Company were named as executors. The Trust Company declined to act as executor. John B. Bennet qualified in Florida as executor, and L. J. Erler qualified in Missouri, letters testamentary being issued to him by the Probate Court of the City of St. Louis.

Early in 1936, a petition was filed on behalf of John B. Bennet in the probate court in St. Louis for the revocation of letters theretofore granted to Erler, who was at the time a resident of Tampa, Florida, and had not filed the settlements required by law. On February 4, 1936, Erler's letters were revoked by the probate court, and George T. Priest was appointed administrator c. t. a. d. b. n., and Erler was ordered by the court to make settlement of the estate with said administrator.

On December 15, 1933, a claim was allowed by the probate court in favor of plaintiff for $2,400 for services rendered as attorney for Elizabeth S. Bailey in her lifetime.

On January 23, 1935, L. J. Erler as executor paid plaintiff $1,400 on his allowed claim.

In September, 1936, Erler partially prepared his settlement at Tampa, Florida, and brought it to St. Louis. The settlement was completed in plaintiff's office on September 10th and 11th, and was filed in the probate court of St. Louis by plaintiff for said Erler, on the afternoon of September 11, 1936. The balance of $1,000 of plaintiff's allowed claim had not been paid prior to Erler's trip to St. Louis for the purpose of filing his settlement. While said settlement was being completed at plaintiff's office, L. J. Erler gave to plaintiff a check of The Sevilla, Inc., of Tampa, Florida, for $1,000, signed The Sevilla, Inc., L. J. Erler. This check was predated January 30, 1936, a date prior to L. J. Erler's removal as executor. It was given by Erler "for the purpose of paying the balance of said allowed claim." It was agreed between them that plaintiff would hold this check until after the filing of the settlement and until Erler had an opportunity to return to Tampa, Florida, and arrange for its payment when presented. The check was deposited by plaintiff for collection on September 29, 1936. Not having been paid, it was again deposited on October 8, 1936, and again on one other later date, but was not paid.

When plaintiff filed Erler's settlement in the probate court, on September 11, 1936, he knew that Erler was taking credit in said settlement with a payment to him of $1,000 as the balance due on his allowed claim and representing in said settlement that said payment was made on January 30, 1936, a date prior to the revocation of Erler's letters. The probate court restated Erler's accounts and furnished a copy of the restatement to plaintiff. In the restatement the court gave Erler credit with the payment of $1,000 to plaintiff as represented in his settlement.

Plaintiff appeared in the probate court before said restatement was made and approved by the court, in the presence of the administrator c. t. a. d. b. n. or his attorney, and requested the court to permit him to withdraw the receipt he had given to Erler for the said $1,000 at the time of accepting the said check, and at said time represented to the court that the said check was not paid when presented and had not at any time been paid, and insisted that his allowed claim be paid. Upon an examination of the court files the receipt was not found.

At the June term, 1937, the probate court entered an order approving Erler's settlement as restated by the court and rendered a personal judgment against Erler for $26,615.15, which amount did not include the $1,000 shown as paid by the settlement filed by plaintiff for Erler. But, on the contrary, said restatement credited Erler with having paid the said $1,000.

The administrator c. t. a. d. b. n. made his final settlement in the probate court at the September term, 1937. The settlement was approved by the court and an order of distribution was entered, on October 25, 1937. The court found that there was in the hands of the administrator a balance of $4,028.64 in cash, certain stocks and bonds, and a personal judgment against Erler for $26,615.15, which assets the court ordered distributed to John B. Bennett as domiciliary executor in Florida. The court further found that plaintiff's allowed claim for $2,400 had been satisfied, as shown by the restatement of Erler's settlement, approved at the June term, 1937. Plaintiff appealed, from said orders of October 25, 1937, to the circuit court.

The trial in the circuit court resulted in a judgment for plaintiff. The court ordered and adjudged that the approval of the final settlement of the administrator c. t. a. d. b. n. by the probate court be set aside and for naught held; that said administrator pay the balance of the allowed claim of plaintiff of $1,000, together with interest at six per cent per annum on the allowed claim of $2,400 from December 15, 1933, to January 23, 1935, and with interest at six per cent on $1,000 from January 23, 1935, and that said administrator c. t. a. d. b. n. be given credit therefor in his final settlement, and that plaintiff return to said administrator c. t. a. d. b. n. the check of $1,000 issued by Erler on September 11, 1936.

From this judgment defendant appeals.

Defendant insists that the delivery and acceptance of the check of The Sevilla, Inc., amounted to payment of the balance of the allowed claim.

The rule is frequently stated in the decisions as that the acceptance of a note, bill, or check, of either a debtor or a third person, does not constitute payment of an existing debt, unless so expressly agreed. The rule is otherwise stated as that the acceptance of a note, bill, or check, will not operate as payment of the debt in the absence of an agreement or understanding between the parties to that effect, or unless it is so intended by the parties, but that if the note, bill, or check, is intentionally received as payment the debt is thereby discharged. So, it is held that a creditor's acceptance of a note, bill, or check, of a third person, under an agreement, express or implied, to receive it as payment, discharges the debtor and extinguishes the debt. It is also said that when a creditor agrees or consents to receive a check of his debtor as payment, the debt is thereby extinguished, and that the agreement need not be express, or in writing, but that it is sufficient if the circumstances and conduct of the parties show that the check is taken in satisfaction of the debt. See 48 C.J. 619, 623.

In Cave v. Hall, 5 Mo. 59, loc. cit. 61, it was held that the delivery of notes for an existing debt "could not amount to a payment of the debt, unless it had been expressly agreed between the parties, that they should be so considered."

In Steamboat Charlotte v. Hammond, 9 Mo. 59, loc. cit. 63, 43 Am.Dec. 536, the court said: "It cannot be contended that a note without a special contract, is an extinguishment of the original cause of action."

Again, at page 64 of 9 Mo., 43 Am.Dec. 536, the court said that "a note is not an extinguishment or payment of a precedent debt, unless there is an express agreement to accept it in payment and to take the risk of the solvency of the maker."

In Leabo v. Goode, 67 Mo. 126, loc. cit. 129, it was held that the acceptance of a note, to amount to payment of an existing debt, "must be taken expressly as payment by the agreement of the parties."

In Riggs v. Goodrich, 74 Mo. 108, loc. cit. 112, it was held that the mere execution, delivery, and acceptance of a note could not be regarded as a payment of the judgment, and that "before it could have that effect it must be shown that it was agreed between the parties that it should be received in satisfaction and discharge of the judgment."

In Montgomery County v. Auchley, 103 Mo. 492, loc. cit. 502, 15 S.W. 626, loc. cit. 628, the court said: "There is no question that, as between individuals, payment of a debt may be made by note or check, where there is a positive agreement to that effect."

And, at page 506 of 103 Mo., 15 S.W. at page 629, the court further said: "Aside from all these considerations, payment by notes and checks, even as between individuals, are not looked upon with much favor by the courts, as the adjudged cases in this state will show."

In People's Bank v. Stewart, 152 Mo. App. 314, loc. cit. 330, 133 S.W. 70, loc. cit. 75, it was said that in order that the taking of a note shall operate as payment of a...