Huth v. Picotte

• Decision Date: 07 October 1941
• Docket Number: No. 25,675.,25,675.
• Citation: 154 S.W.2d 382
• Parties: HUTH v. PICOTTE et ux.
• Court: Missouri Court of Appeals

154 S.W.2d 382

HUTH v. PICOTTE et ux.

No. 25,675.

St. Louis Court of Appeals. Missouri.

October 7, 1941.

Appeal from Circuit Court, St. Louis County; Peter T. Barrett, Judge.

"Not to be reported in State Reports."

Suit for money had and received by John Huth against Peter Emmanuel Picotte and another. From a judgment for the plaintiff, defendants appeal.

Affirmed.

Edwin Rader, of Clayton, for appellants.

Johnson & McNatt, of Clayton, for respondent.

McCULLEN, Judge.

This is a suit for money had and received brought by John Huth, as plaintiff, against Peter Emmanuel Picotte and May Denniston Picotte (also referred to as Mary Denniston Picotte), as defendants. It was tried before the court and a jury, resulting in a verdict and judgment in favor of plaintiff and against defendants in the sum of $6,496, which included interest. Defendants' motion for a new trial having been overruled, they duly appealed.

Plaintiff's petition alleged, in substance, that defendant May Denniston Picotte is the wife of defendant Peter Emmanuel Picotte and the daughter of plaintiff's sister; that, on or about June 30, 1938, defendants came to plaintiff's home in Canton, Ohio, where he lived alone, and urged him to return with them to their home in St. Louis County, Missouri, for a visit; that, on or about July 2, 1938, he came with them to their home in St. Louis County; that he remained at defendants' home during the summer of 1938; that defendants owned the property constituting their home. Said property is fully described in plaintiff's petition, which further alleged that defendants fraudulently devised a scheme to obtain from plaintiff $6,000 by representing to him that a first deed of trust on defendants' said property had a balance due thereon of $6,000 which was coming due, and represented to plaintiff that it would be a good investment for him; that defendants agreed with plaintiff that they would procure and deliver to him the said first deed of trust if he would advance and pay to the then holder thereof the balance of $6,000 then due upon it; that plaintiff believed the representations so made by defendants and relied thereon, and being deceived thereby, on or about September 1, 1938, obtained from his bank in Ohio a cashier's check in the sum of $6,000 payable to him (plaintiff) and indorsed and delivered it to the defendants, more particularly defendant Peter Emmanuel Picotte; that, on or about September 30, 1938, plaintiff demanded of defendants said deed of trust, but defendants refused to comply with the demand, offering him instead and over his objections a promissory note the tenor of which is set forth in the petition. The petition further alleged that said note is in possession of plaintiff but was never accepted or held in lieu of the deed of trust defendants promised to procure and deliver to plaintiff; that after plaintiff came into possession of said note, he demanded of defendants the deed of trust but defendants refused and failed to deliver to him the same, therefore he demanded of defendants the return of the $6,000 but defendants refused and failed to pay the same; that, in the foregoing manner, the defendants did have and receive plaintiff's money which in good conscience belongs to plaintiff but which, since September 2, 1938, defendants have withheld from plaintiff wrongfully and in bad faith.

Defendants filed a joint and separate demurrer to plaintiff's petition, alleging that the petition did not state facts sufficient to constitute a cause of action against defendants, which having been overruled defendants filed an answer containing a general denial.

Counsel for the respective parties, while holding opposing views on various phases of this case, are nevertheless agreed in stating that it is a suit for money had and received.

The evidence on behalf of plaintiff showed that, in August, 1938, while plaintiff, single and seventy-three years of age, was living at the home of defendants in St. Louis County he made a verbal agreement with defendant Peter E. Picotte wherein plaintiff, by paying to said defendant the sum of $6,000, was to receive a deed of trust which was then on the home of defendants. Plaintiff had been living in Ohio and had come to the home of defendants at the request of defendants, particularly defendant May Denniston Picotte, his niece. At that time Mary A. Fisch, seventy-four years of age, a sister of plaintiff and aunt of defendant May Denniston Picotte, was living at the Picotte home.

There is a conflict between plaintiff's and defendants' evidence as to the various conversations between plaintiff and the defendants leading up to and culminating in the agreement mentioned and thereafter, but, with commendable regard for the only real issues on this appeal, counsel for defendants state that, since the jury found in favor of plaintiff and disbelieved the defendants, the important question before this court is whether plaintiff is entitled to recover on his theory of the case under the law.

Plaintiff's evidence further showed that, on September 1, 1938, in accordance with his verbal agreement with defendant Peter Emmanuel Picotte, plaintiff obtained a cashier's check for $6,000 from his bank in Ohio where he had formerly lived, and turned it over to said defendant in the latter's home in St. Louis County. He did not receive from defendants at that time any receipt, note or deed of trust, or any other paper. Some time after he had turned over the cashier's check to defendant Peter Picotte, said defendant prepared a promissory note in the sum of $6,000, dated September 1, 1938, due thirty-nine months after the date thereof, with interest at three per cent. per annum, wherein payments were provided for as follows: "September 1, 1939, $500.00. September 1, 1940, $500.00. September 1, 1941, $500.00. December 1, 1941, $4500.00." The above note was signed by both defendants. They are husband and wife. The execution of the note by both defendants and the delivery thereof to plaintiff are not disputed, nor is it disputed that plaintiff indorsed and delivered to defendants the six thousand dollar cashier's check which plaintiff had received from his bank in Ohio.

Plaintiff's evidence was to the effect that the agreement was not for the delivery to him of the note in question, or any note, but for the delivery to him of the deed of trust then on the defendants' home; that he accepted and retained the note merely to have something to show for the payment of his money to the defendants; that he frequently demanded of defendants that they carry out their agreement by delivering to him the deed of trust which they had agreed to give him, but that they refused to do so; that he thereupon demanded the return of the $6,000 which he had delivered to them, but they also refused to pay said sum or any part of it.

The evidence on the part of defendants was to the effect that there never was an agreement between the parties with respect to a deed of trust; that the only agreement was that plaintiff was to receive the note which defendants delivered to him. There is much conflicting evidence in the record of quarrels and disputes between the parties concerning the transaction in question, but such questions of fact have, as conceded by defendants, been settled by the jury's verdict. It is therefore unnecessary to go into the details thereof.

Defendants earnestly insist that, as a condition precedent to the bringing of an action based on the rescinding of a contract, the party entitled to rescind on account of failure of consideration or nonperformance by the other party must restore or tender to such party what he has received. They argue that in this case plaintiff is not entitled to recover because he did not, before the filing of his suit or at any time thereafter, put the defendants in status quo by tendering and delivering to them the $6,000 note in question. Defendants point out that, on the contrary, plaintiff's petition specifically pleads the execution and delivery of such note to him, and that it was in his (plaintiff's) possession and that he still retained possession of it at the time of the trial.

There is no doubt that the general rule with respect to the rescission of a contract on account of failure of consideration or nonperformance by the other party is that the party entitled to rescind the contract "in order * * * to bring an action for the money which he had paid on account of it, he must restore or tender what he has received in part performance, unless the right is waived." 41 C.J., page 56, Section 48. (Emphasis ours.) The same authority states that the action for money had and received "proceeds on the ground of a disaffirmance of the contract in such a case and a restitution of the thing given in exchange, and the other party to the contract must be placed in as good a position as he was before the contract was entered into; but where there is nothing to be done by plaintiff to place defendant in statu quo, the action for money had and received is in itself a rescission." 41 C.J., page 56, Section 48. However, there is an exception to the general rule as to tender. It is referred to in that portion of the general rule emphasized by us above. Said exception is more fully stated in 62 C.J., 658, 659, as follows:

"A tender is waived where the tenderee makes any declaration which amounts to a repudiation of the contract, or takes any position which would render a tender, so long as the position taken by him is maintained, a vain and idle ceremony."

Furthermore, it has been held that a tender is not necessary where the thing delivered as part performance is not what...