Herhalser v. Herhalser, 8490

• Decision Date: 11 March 1966
• Docket Number: No. 8490,8490
• Citation: 401 S.W.2d 187
• Parties: Lula L. HERHALSER, Plaintiff-Respondent, v. Martin S. HERHALSER, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 187

401 S.W.2d 187

Lula L. HERHALSER, Plaintiff-Respondent, v. Martin S. HERHALSER, Defendant-Appellant.

No. 8490.

Springfield Court of Appeals, Missouri.

March 11, 1966.

Wear, Wear & Coffman, William A. Wear, Paul R. Coffman, Springfield, for defendant-appellant.

Lincoln, Haseltine, Forehand & Springer, Edmund C. Forehand, Dale L. Rollings, Springfield, for plaintiff-respondent.

STONE, Presiding Judge.

This action, docketed as No. 43794 in the Circuit Court of Greene County, was instituted on February 25, 1963, by plaintiff Lula L. Herhalser for specific performance of the property settlement contract executed by her and by her husband, defendant Martin S. Herhalser, on April 26, 1962, the same date on which the Circuit Court of Greene County in a suit for separate maintenance brought by Mrs. Herhalser, as plaintiff, and docketed as No. 41889, entered a decree which ordered defendant to pay to plaintiff $175 per month for her support and maintenance. On March 7, 1963, defendant filed in No. 43794 his answer and also his counterclaim for reformation of the property settlement contract. Following the taking of evidence on April 1, 1965, the court entered its judgment and decree in No. 43794 on May 4, 1965, finding all issues for plaintiff both on her petition and on defendant's counterclaim and awarding plaintiff an attorney's fee of $150. On this appeal by defendant, he complains about denial of his counterclaim for reformation and about the allowance of an attorney's fee to plaintiff.

For some twenty years prior to institution of No. 41889, the suit for separate maintenance, plaintiff had lived in Pasadena, California, and defendant had lived in Springfield, Missouri. Plaintiff said that 'we (apparently referring to herself and a daughter) were sent to California.' Whatever the reason (here neither disclosed nor important), the parties had lived separate and apart most of the time, with defendant making trips to California 'twice a year.' In 1947 or 1948, defendant built a house 'up in the mountains near Lake Arrowhead' in San Bernardino County, California. When the Lake Arrowhead real estate was sold in 1958, the purchasers executed a note (hereinafter referred to as the note) dated October 28, 1958, to the order of 'M. S. Herhalse and Lula L. Herhalser, husband and wife as joint tenants,' in the principal sum of $7,000 with interest from date, payable in monthly installments of $50 each beginning on January 1, 1959, 'M. S. Herhalser and Lula L. Herhalser, estate sold. For the purpose of collection, the note was left with the Bank of America, Lake Arrowhead branch, and the monthly installments, as paid from time to time, were deposited by the bank in 'a joint bank account' in the names of both plaintiff and defendant. Defendant 'often' made withdrawals from that account. Plaintiff knew that the monthly installments on the note were being deposited in the joint bank account, but there was no evidence that she had made any withdrawals therefrom prior to entry of the decree in No. 41889.

Shortly before the filing of No. 41889, plaintiff, then seventy years of age, came to Springfield, Missouri, and first talked with defendant's attorney, whom she knew. Finding that he was in no position to counsel with her, she then employed the firm still representing her. After 'numerous' conferences between the attorneys for the parties, a written property settlement contract was drafted by defendant's attorney and subsequently was executed by both parties on April 26, 1962. That contract provided in Paragraph 1 that, if the court found for plaintiff in No. 41889, the suit for separate maintenance, judgment for plaintiff in the sum of $175 per month might be entered (as we have noted, such judgment was entered on April 26, 1962) in Paragraph 2 that 'Husband (defendant) agrees to convey all of his right, title and interest to his Wife (plaintiff) in and to the property now owned by the parties hereto in the State of California, together with all personal property located in the State of California'; in Paragraph 3 that 'Wife agrees to convey to Husband any and all interest she might have in and to the real estate and personal property owned by the parties hereto, located in the State of Missouri'; in the next parapraph, also numbered as Paragraph 3, that 'Wife further agrees to execute and deliver to Husband an irrevocable power of attorney . . . to execute and deliver for her and in her name any and all deeds of trust, warranty or quit claim deeds to any and all property located in the State of Missouri'; and in Paragraph 4 that 'Husband agrees to execute and deliver to Wife an irrevocable power of attorney . . . to execute and deliver for him and in his name any and all deeds of trust, warranty or quit claim deeds to any and all property located in the State of California.'

On the date of the contract, to wit, on April 26, 1962, plaintiff gave defendant a power of attorney authorizing him to execute on her behalf 'any instruments of conveyance, bills of sale, mortgages and deeds of trust upon real estate and personal property located in the State of Missouri,' and defendant executed a power of attorney authorizing plaintiff to sell and convey on his behalf the real estate in Pasadena, California, where plaintiff resided.

In November 1962, plaintiff drew $800 out of the joint bank account in the Bank of America, Lake Arrowhead branch, in which the $50 installments on the note were being deposited. After he learned of this withdrawal, defendant withheld from the payments of $175 per month for which he was obligated by the judgment in No. 41889, the suit for separate maintenance, sums aggregating $1,496.10 as of April 1, 1965, the date on which this action, No. 43794, was tried. In the course of trial, defendant claimed certain credits, none of which were allowed by the trial court, against the aggregate arrearage of $1,496.10; but, since the claim for those credits has not been pursued on this appeal, we do not detail or discuss them.

Counsel for both parties tried the case in the circuit court, and have briefed it on appeal, on the theory that the joint bank account in the Bank of America, Lake Arrowhead branch, and the note held by the bank for collection, are 'personal property located in the State of California' within the contemplation and meaning of that language in Paragraph 2 of the property settlement contract. Accordingly, our appellate review is on the same theory. Olsten v. Susman, Mo., 362 S.W.2d 612, 614(3); Voelker v. St. Louis Mercantile Library Ass'n., Mo., 359 S.W.2d 689, 693(2); Welch v. McNeely, Mo., 269 S.W.2d 871, 875(2); Moore v. State Farm Mut. Auto. Ins. Co., Mo.App., 381 S.W.2d 161, 166(6); Griffin v. Anderson, Mo.App., 369 S.W.2d 889, 892(7).

However, defendant insists that the trial court erred in denying his counterclaim for reformation of the property settlement contract 'because of the mutual mistake of the parties and the error of the scrivener,' defendant's attorney. At one point in defendant's brief, the supporting argument runs along the line that, since none of the attorneys had been informed of, or had any knowledge concerning, the note or joint bank account prior to execution of the contract on April 26, 1962, the note and bank account could not have been considered by opposing counsel in their negotiations or by defendant's attorney in the drafting of the contract and that this was 'obviously a mutual mistake'; and, at another point in the brief, the reasoning is that 'the specific wording of the property settlement (contract) was the error of the scrivener, defendant's attorney, in that he was trying to avoid listing specific personal property' and that 'this resulted from the mutual mistake of the parties in that neither intended that such property would become that of the plaintiff and the scrivener had no knowledge that this property existed.'

The negotiating attorneys for both parties frankly stated upon trial of this action, No. 43794, that neither of them had heard of the note or joint bank account when the property settlement contract was executed and judgment was entered in No. 41889 on April 26, 1962. And defendant's attorney testified that he had employed the hereinbefore-quoted language in paragraphs 2 and 3 of the contract to avoid listing 'all of the household furniture, the automobile and other property located in (plaintiff's) home in Pasadena' and 'all of (defendant's) plumbing fixtures and supplies' in his place of business and the personalty in some furnished apartments in Springfield. But, as plaintiff's attorney emphasized in his testimony, the property settlement was made on the basis of a geographical division of assets, i.e., that 'he (defendant) would accept everything in Missouri and she (plaintiff) would accept everything in California, and that would be it'--'they would divide it, (one) was to have what was in one state and the other in the other state.'

The record by no means compels the conclusion urged in defendant's brief that neither of the parties intended that, under the contract, the note and joint bank account would become plaintiff's property. Plaintiff testified without objection that, when the contract was executed, she had knowledge of the note and bank account and that it was her 'understanding' that those assets were to become her sole property. Other testmony by plaintiff, here emphasized by defendant's counsel, did not require rejection of the foregoing statement as to her 'understanding.' For example, the fact that plaintiff did not draw on the joint bank account until November 1962, some seven months after execution of the contract, should be considered in connection with her explanation that she 'left it (the bank account) there as a sort of reserve' and withdrew $800 in November 1962 'because I wanted to make improvements on the home--I was going to put it up for sale,' leaving the balance in the account 'for...