Huegel v. Kimber
| Decision Date | 14 November 1949 |
| Docket Number | 41242 |
| Citation | 224 S.W.2d 959,359 Mo. 938 |
| Parties | Mary M. Huegel, Appellant, v. Harry E. Kimber, Respondent |
| Court | Missouri Supreme Court |
Rehearing Denied December 12, 1949.
Appeal from Clay Circuit Court; Hon. James S. Rooney Judge.
Affirmed.
Action to set aside the sale of two gift shops on the ground of fraud, mental incapacity and inadequate consideration. Defendant prayed for an injunction against plaintiff's violation of her agreement not to engage in the same business for five years. The decree in favor of defendant is affirmed. Error cannot be predicated upon instructions to an advisory jury in an equity case. The evidence did not support plaintiff's charges. The injunction decree against plaintiff was not too broad in its terms.
R. Carter Tucker, John Murphy, William H. Wilson, J. Gordon Siddens and Tucker, Murphy, Wilson & Siddens for appellant.
(1) Character of review by Supreme Court. Ver Standig v. St. Louis Union Trust Co., 344 Mo. 880, 129 S.W.2d 905; Peikert v. Repple, 342 Mo. 274, 114 S.W.2d 999; Shaw v. Butler, 78 S.W.2d 420. (2) Plaintiff's theory. Watt v. Loving, 240 S.W. 122; Fountain v. Fountain, 190 S.W.2d 941; Stone v. Hohmann, 347 Mo. 184, 146 S.W.2d 551; Wigginton v. Burns, 216 S.W. 756; 26 C.J.S. 268, sec. 64 (e), p. 268; Eckelmann v. Luecking, 344 Mo. 979, 130 S.W.2d 471; Kadlowski v. Schwan, 329 Mo. 446, 44 S.W.2d 639; Sampson v. Pierce, 33 S.W.2d 1039; Beale v. Gibaud, 15 F.Supp. 1020; Hoover v. Wright, 202 S.W.2d 83. (3) Trial court's erroneous theory. Boggess v. Boggess, 127 Mo. 305; Lewis v. Rhodes, 150 Mo. 498. (4) Erroneous Instruction 2. Ross v. Pendergast, 353 Mo. 300, 182 S.W.2d 307; State ex rel. United Mut. Ins. Assn. v. Shain, 349 Mo. 460, 162 S.W.2d 255; Bailey v. Bailey, 11 S.W.2d 1026; Basham v. Prudential Ins. Co., 232 Mo.App. 782, 113 S.W.2d 126; Gibson v. Met. Life Ins. Co., 147 S.W.2d 193; State ex rel. Detroit Fire & Marine Ins. Co. v. Ellison, 268 Mo. 239, 187 S.W. 23; Boggess v. Boggess, 127 Mo. 305; Laventhal v. New York Life Ins. Co., 40 F.Supp. 157. (5) The court erred in granting an injunction to the defendant on his cross petition because the decree is not supported by the evidence and is against the weight of the evidence. Anger v. McCorkle, 253 S.W. 72; Kurfiss v. Cowherd, 233 Mo.App. 397, 121 S.W.2d 282. (6) Because the decree is uncertain, indefinite, not clear and not subject to accurate understanding and interpretation. Commission Row Club v. Lambert, 161 S.W.2d 732; Kelly v. Cape Girardeau, 230 Mo.App. 137, 89 S.W.2d 693; Temco Mfg. Co. v. Natl. Electric Ticket Register Co., 223 Mo.App. 420, 18 S.W.2d 142; Oliver v. Orrick, 220 Mo.App. 614, 288 S.W. 966; Ex parte Heffron, 179 Mo.App. 639, 162 S.W. 652; Magel v. Gruetti Benevolent Society, 203 Mo.App. 335, 218 S.W. 704; 43 C.J.S. 941-944, sec. 211 b (1).
John S. Lodwick, Arthur R. Kincaid and Francis G. Hale for respondent.
(1) Plaintiff's petition for cancellation and accounting was properly dismissed because not sustained by the evidence. Evidence, to authorize cancellation, must be clear, cogent, convincing and beyond a reasonable doubt. Bross v. Rogers, 187 S.W. 38; Endinger v. Kratzer, 175 S.W.2d 807; Hedrick v. Hedrick, 168 S.W.2d 69; 350 Mo. 716; Platt v. Platt, 343 Mo. 745, 123 S.W.2d 54; Stubblefield v. Husband, 341 Mo. 38, 106 S.W.2d 419; Hamilton v. Steininger, 350 Mo. 698; Robinson v. Field, 117 S.W.2d 308; Schneider v. Johnson, 357 Mo. 245. (2) Testimony of lay witnesses that in their opinion plaintiff was not competent to transact business is no evidence of unsoundness of mind: it invades the province of the triers of fact and should not have been admitted. Baptiste v. Boatmen's Natl. Bank, 148 S.W.2d 743. (3) Testimony of lay witnesses that in their opinions plaintiff was of unsound mind has no probative value unless based upon facts, previously recited by the witness, and inconsistent with soundness of mind. Kaechelen v. Barringer, 19 S.W.2d 1033; Fields v. Luck, 335 Mo. 765; Stevens v. Meadows, 340 Mo. 252; Nute v. Fry, 111 S.W.2d 84. (4) There was no prejudicial error in the instructions. Instructions have no place in the trial of an equity case before an advisory jury and prejudicial error cannot be predicated on the giving or refusal of such instructions. Shaffer v. Detie, 191 Mo. 377; Weddington v. Lane, 202 Mo. 387; Burnett v. Hudson, 228 S.W. 462; Stillwell v. Bell, 248 Mo. 61. (5) The legality of the contract and sale having been determined, the trial court has no discretion to refuse defendant injunctive relief on the restrictive covenant in the contract of sale. Steinmetz v. Federal Lead Co., 176 S.W. 1049; Wills v. Forester, 140 Mo.App. 321; Hessel v. Hill, 38 S.W.2d 490; Kreger Glass Co. v. Kreger, 49 S.W.2d 264; Glover v. Shirley, 169 Mo.App. 637; State ex rel. Hopkins v. Excelsior Powder Co., 259 Mo. 254.
Van Osdol, C. Bradley and Dalton, CC., concur.
Action to cancel and set aside the contract of sale and the sale of the stocks of merchandise and fixtures of two stores in Excelsior Springs. As grounds for relief plaintiff, vendor, alleged that the consideration was inadequate and that defendant "knowingly and fraudulently influenced, induced and caused plaintiff" to sign the contract while plaintiff was seriously ill, physically weak, and mentally incapacitated. Plaintiff testified the properties were worth an amount which is much more than $ 7500 in excess of the $ 15,000 consideration received.
Defendant, purchaser, by answer admitted his purchase of the properties for the agreed consideration of $ 15,000; and alleged his payment of the purchase price, and his possession of the properties. Defendant further prayed for an order restraining plaintiff from re-engaging in a business in violation of the terms of the contract of sale whereby plaintiff had agreed "as a part of the consideration of the purchase price, not to own, engage, clerk or work in the same, or similar business in the City of Excelsior Springs within five years" from date.
The trial chancellor dismissed plaintiff's petition, and rendered judgment on defendant's claim for injunctive relief.
It is plaintiff-appellant's contention the trial court's judgment is against the weight of the evidence, not supported by the evidence, and for the wrong party. Plaintiff-appellant urges the trial chancellor did not take into account the proof of inadequacy of consideration and decided the case on the erroneous theory plaintiff was only required to have such mental capacity as is the standard of a testator in making a will. Plaintiff further says the proof of her illness and mental impairment, together with the shown inadequacy of consideration, entitles her to recover. She urges the trial court's erroneous theory is emphasized by a given instruction informing the (advisory) jury as to the existence of the presumption of sanity, and that plaintiff had the burden of proving unsoundness of mind by clear, cogent and convincing evidence, beyond a reasonable doubt. And plaintiff-appellant further contends the decree of injunction is not supported by evidence, and is uncertain, indefinite, and not subject to clear understanding.
Defendant-respondent contends that plaintiff's petition was properly dismissed -- plaintiff's case was not sustained by evidence of the quality essential to her recovery; that even though the instructions were erroneous, error cannot be predicated upon the court's instructions -- the finding of the jury in an equity case is but advisory; and that, the contract of sale having been upheld, the trial court had no discretion, but was obliged to render injunctive relief to defendant inasmuch as plaintiff admitted she is now conducting a business similar to those she formerly conducted in the stores sold to defendant.
About twelve years ago plaintiff, Mary M. Huegel, established a gift or jewelry store in Excelsior Springs. The store was known as Ye Old Colony Shoppe. In 1944 plaintiff purchased a jewelry store of defendant, Harry E. Kimber, for $ 3000; she continued the operation of this store as "Huegel's Hall of Gems."
Near the middle of July 1947 plaintiff became ill and was admitted to the Excelsior Springs Hospital where she remained until August 8th, after which date she was confined at her home for one week and then was admitted "on a stretcher" to the Mitchell Clinic Hospital at Excelsior Springs. At the time she was very weak and sick -- in a critical physical condition. Tests tended to show a diabetic tendency, and a diseased colon. She was thought to have a "malignant cancer," and was not expected to live. Witnesses for plaintiff testified that she remained critically ill for more than two weeks, during which time she was extremely anemic, often nauseated, at times helpless, "at intervals" in a semicomatose condition; sometimes she did not recognize her relatives; had hallucinations, "talking irrationally." A physician, who treated plaintiff, stated her anemic condition was such that, in his opinion, "it retarded her perception mentally"; and nurses and relatives of plaintiff testified of her severe illness, physical weakness, and stated their opinions plaintiff was of unsound mind.
August 26, 1947, attorneys Morse and Moore collaborated in preparing a contract of sale and a bill of sale of plaintiff's two stores to defendant. The negotiations preliminary to the preparation of these instruments were between defendant and plaintiff's brother, one Edward Walter, the active president of a bank in Glenwood, Minnesota, who had come to Excelsior Springs, it seems, upon news of...
To continue reading
Request your trial