Grue v. Hensley

• Decision Date: 08 March 1948
• Docket Number: No. 40616.,40616.
• Parties: ZELPHA HOFFMANN GRUE, Appellant, v. C.F. HENSLEY, Administrator of the Estate of WILLIAM F. WORTMANN.
• Court: Missouri Supreme Court

210 S.W.2d 7

ZELPHA HOFFMANN GRUE, Appellant, v. C.F. HENSLEY, Administrator of the Estate of WILLIAM F. WORTMANN.

No. 40616.

Supreme Court of Missouri.

Division Two, March 8, 1948.

Motion for Rehearing or to Transfer to Banc Overruled, April 12, 1948.

Appeal from Gasconade Circuit Court. — Hon. Ransom A. Breuer, Judge.

AFFIRMED.

Howard Elliott, Aubrey B. Hamilton and Herman L. Stolte for appellant.

(1) Two separate claims or petitions do not relate to the same cause of action unless it appears that the same evidence will support each claim and unless it also appears that the same measure of damages will apply to each claim. A demand against an estate for personal services rendered a decedent is, therefore, a different cause of action from a demand against the estate for reimbursement of amounts paid to satisfy debts of decedent. Jacobs v. Chicago, P. & St. L.R. Co., 204 S.W. 954; Bader v. Beck, 173 S.W. (2d) 647; Brinkmann Realty Co. v. Deidesheimer, 201 S.W. (2d) 503; Garland v. Smith, 64 S.W. 188; 34 C.J., sec. 1226. (2) Where two demands against an estate contain no item in common, are not founded upon one express contract, and each is based upon a separate obligation implied by law, wholly separate and distinct causes of action are stated. Separate demands against an estate, one based upon quantum meruit for personal services rendered and another based upon debt for reimbursement of amounts paid to satisfy obligations of decedent, are wholly separate and distinct causes of action. Fort v. Penny, 29 N.E. 362; Broz v. Hegwood, 349 Mo. 920, 163 S.W. (2d) 1009; Brown v. Chadwick, 32 Mo. App. 615; 34 C.J., sec. 1256; Gooldy v. Lavender, 223 Mo. App. 354, 16 S.W. (2d) 681; Bircher v. Boemler, 204 Mo. 554, 103 S.W. 40; Grant v. Parker-Russell Mining & Mfg. Co., 65 S.W. (2d) 143; Peper Automobile Co. v. St. Louis Union Trust Co., 187 S.W. 109; See v. See, 242 S.W. 949; Friedman, Keller & Co. v. Olson, 187 Mo. App. 469, 173 S.W. 28; Newhall v. Enterprise Mining Co., 205 Mass. 585, 91 N.E. 905; 34 C.J., sec. 1226. (3) It is immaterial that two claims by one party against another had both matured when the first claim was filed, and the filing and adjudication of the first claim does not for that reason bar an action on the second claim. Schuster v. White's Administrator, 50 S.W. 242; 34 C.J., sec. 1246; Chamberlain v. Missouri-Arkansas Coach Lines, 189 S.W. (2d) 538; Wheless v. Serrano, 121 Mo. App. 17, 98 S.W. 108; Akire Grocer Co. v. Tagart, 60 Mo. App. 389; Frost v. Interior Rubber Co., 37 R.I. 476, 93 Atl. 641; Williams & Co. v. Kitchen, 40 Mo. App. 604. (4) Where there can be no injury to a debtor and no second claim upon the same demand, the principle of former recovery is not to be applied to defeat a remedy provided by statute. Hayden v. Logan, 9 Mo. App. 492; Secs. 181-211, R.S. 1939. (5) The circuit court has no power nor authority, over timely objection, to determine, upon the facts and preliminary to trial, an issue as to whether a single cause of action has been split. That determination is for the jury, under proper instructions from the court, at the conclusion of the trial on the merits. The court erred in entertaining respondent's motion to dismiss, and the court instead should have sustained the motion of appellant to strike said motion from the files. Joyce v. Moore, 10 Mo. 271; Green v. Chris Von Der Ahe, 36 Mo. App. 394; Tutt v. Price, 7 Mo. App. 194; Mo. Const. of 1945, Art. I, Sec. 22; Wagner v. Jacoby, 26 Mo. 532; State to Use of Ingram v. Morton, 18 Mo. 53; 34 C.J., sec. 1523. (6) Whether a pending demand against an estate arises out of the same cause of action as did a prior demand is a matter of affirmative defense, and the burden of proof lies with the party asserting such defense. In the instant case the defendant administrator wholly failed to sustain his burden of proof, and the evidence fails to sustain the judgment of dismissal. Weber v. Jantzen, 180 S.W. 432; 34 C.J., secs. 1513, 1516.

Joseph T. Tate for respondent.

(1) The non-claim statute of limitation is rigidly enforced and one is not entitled either in law or in equity to file a claim after the expiration of the time fixed therein. Sec. 186, R.S. 1939; Harrison Machine Works v. Aufder Heide, 280 S.W. 711; Gooldy v. Lavender, 16 S.W. (2d) 681; 24 C.J., sec. 1035, p. 370; Harr v. Hawkins, 22 S.W. (2d) 209; Hinshaw v. Warren's Estate, 151 S.W. 497; Jenkins v. Morrow, 109 S.W. 1051; State v. Daues, 14 S.W. (2d) 990. (2) Exhibition to administrator and presentation to a court of a claim against an estate are jurisdictional and must be done. Van Wagner v. Slane, 14 S.W. (2d) 710; Schaeffer v. Magel's Estate, 108 S.W. (2d) 608; Hax v. O'Donell, 117 S.W. (2d) 667; Armstrong v. Ricker's Estate, 162 S.W. (2d) 646; Bank of Skidmore v. Bartram, 142 S.W. (2d) 657. (3) It is a general rule, upheld by the great weight of authority, that a continuous running account for goods sold, money lent, work and labor, or the like, is an entire demand, not severable into distinct causes of action without the debtor's consent, and that a recovery on such an account must include all that is due at the time, subsequent actions on it being barred. 34 C.J. 832, sec. 1242; Hermann v. Schwartz Bros. Comm. Co., 59 Mo. App. 649; LaCrosse Lbr. Co. v. Audrain County Agricultural, etc., 59 Mo. App. 24; Piel v. Finck, 19 Mo. App. 338. (4) The rule in this state, following the decided weight of authority, is to the effect that if an action is not brought until more than one breach of the same contract has occurred, all such breaches must be included in the one action, and if an action is brought when more than one claim is due, a recovery in that action will be a bar to a second action brought to recover the other claims that were due when the first was brought. Grant v. Parker-Russell Mining & Mfg., Co., 65 S.W. (2d) 143; Union Railroad & Transportation Co. v. Traube, 59 Mo. 355; Joyce v. Moore, 10 Mo. 271; Friedman Keller & Co. v. Ohlson, 187 Mo. App. 469, 173 S.W. 28; Pettit v. American Central Ins. Co., 69 Mo. App. 317; Puckett v. Natl. Annuity Assn., 134 Mo. App. 501, 114 S.W. 1039; Gooldy v. Lavender, 16 S.W. (2d) 681; Alkire Grocer Co. v. Tagart, 60 Mo. App. 389; Wheless v. Serrano, 121 Mo. App. 17, 98 S.W. 108; Sprinkle v. Fleming's Estate, 239 S.W. 899; 1 C.J., p. 1112, sec. 287. (5) A creditor having a demand against an estate consisting of several items, cannot divide it into several parts and exhibit it to the administrator or present it to the court for allowance by piecemeal. Pfeiffer v. Suss, 73 Mo. 245. (6) Plaintiff having an entire demand growing out of a single transaction cannot split it up into several suits. Wagner v. Jacoby, 26 Mo. 532; Piel v. Finck, 19 Mo. App. 338.

ELLISON, J.

This is an appeal from a judgment of the circuit court of Gasconade county (on appeal from the probate court) sustaining a motion of the respondent administrator of the estate of William F. Wortmann, deceased, to dismiss a probate demand for $13,910 against said estate, filed by the appellant Zelpha Hoffmann Grue. The ground alleged in the motion was that the demand split a cause of action against the estate growing out of a single transaction, in that appellant had filed earlier that year another demand against the estate based on the same transaction, which had been compromised and allowed. There are only two questions in the case: (1) whether the trial court's judgment was erroneous on the face of the record; (2) or whether the court should have reserved its ruling on the administrator's motion until it had heard the cause on the merits, and then made its decision.

The facts seem to be that the intestate was old and decrepit, but operated a farm and a store at Rosebud. The appellant resided at his home for several years, rendered some nursing and domestic service to him and clerked in his store until his death in December, 1945. His estate was administered in the probate court of Gasconade county. Within due time, in August, 1946, appellant filed her first demand aforesaid, which merely stated an account against his estate for $441.32, consisting of eleven items covering insurance and taxes she had paid for him out of her own funds between February 8, 1944 and August 7, 1945. It contained the affidavit required by Sec. 192, R.S. Mo. 1939-Mo. R.S.A. that she had given credit to the estate for all payments and offsets to which it was entitled, and that the balance claimed was justly due. That demand was taken up by the probate court in October and its judgment recited appellant agreed to "accept the sum of $150 as payment in full on said demand of all her claims against said estate." The court approved the compromise and ordered the administrator to pay it, which he did.

Thereafter on or about December 7, 1946, only five days before the expiration of the one year allowed by Sec's 182, 196 for filing probate demands, the appellant filed her second demand, here involved. It contained five paragraphs, stating an account for services rendered the deceased aggregating $13,910.00. It started: "To services rendered by claimant to William F. Wortmann, deceased, from February 14, 1942, to December 7, 1945, as follows:" The first paragraph detailed nursing and personal services; the second, domestic services; and the third, management and operation of his store. The fourth paragraph was as follows (italics ours): "Complete management of all personal and business affairs of deceased, including collection of rents, banking, payment of obligations, sale of stock, recovery of farm machinery, sale of farm, and the performance of the numerous and varies errands and attendance to details required in connection with the handling of the affairs of deceased and covering the period from February 14, 1942, until his death."

The respondent administrator, as stated, filed a motion in the probate court to dismiss this second demand, contending that it arose out of the...