Hyde v. Henman

• Citation: 256 S.W. 1088
• Decision Date: 05 November 1923
• Docket Number: No. 14324.,14324.
• Parties: HYDE v. HENMAN.
• Court: Court of Appeal of Missouri (US)

256 S.W. 1088

HYDE v. HENMAN.

No. 14324.

Kansas City Court of Appeals, Missouri.

November 5, 1923.

Rehearing Denied December 31, 1923.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

"Not to be officially published."

Action by Sadie Hyde against Jessie Henman. Judgment for plaintiff, and defendant appeals. Affirmed.

Shull & Shull, of St. Joseph, for appellant. Thompson & Griswold, of St. Joseph, for respondent.

TRIMBLE, P. J.

Appellant's so-called statement does not comply with section 1511, R. S. 1919, nor with our rule 16, which require "a clear and concise statement" of the case "without argument, reference to issues of law or repetition of testimony of witnesses." Said statement, consisting of 16 pages of printed matter in small type, makes no effort to give the court any idea of the nature of the case or a bird's-eye view thereof, but at the very outset plunges in medias res quoting certain portions of the testimony, giving the rulings of the court, together with running comments and argument of counsel thereon, and continues this throughout its length, leaving the court, if it would understand what it is all about, to read at length the pleadings and the entire abstract. The purpose of the rule is to expedite the business of the court; and we would apply the penalty in this case, were we left to search out for ourselves what it is we are called upon to decide. But, as respondent has furnished a statement that does give us a clear view of the case, the result of the violations of the rule by appellant has been obviated, and we will not enforce the penalty. This is done, not because of a desire to be amiable and lenient, but because of our purpose not to dismiss an appeal on mere technical grounds, but only when the violation of the rule has resulted in a real evil which the rule was made to avoid.

William R. Steele, father of the parties hereto, was twice married. His two wives were sisters. By his first wife he had four children, of whom the plaintiff was one; by his second wife he had two, of whom the defendant is one. He died prior to the death of his second wife. It seems that at that time all the property was in the name of his second wife, though there was a more or less well-justified contention in good faith, on the part of some at least and perhaps all of the four children by his first wife, including plaintiff, that, while the property was in the wife's name, and she had the legal title thereto, yet the equitable title was in William T. Steele; consequently, if that were true, the children of the first marriage each had a one-sixth interest in all of said property. Finally an adjustment was made whereby the plaintiff herein and her full sister, of the first set of children, made quitclaim deeds to the second wife, conveying, as they thought, their interest in said property during her life, so that she might have the use thereof so long as she lived, but at her death the property was to be then divided equally between all six of said children.

After the death of Steele's second wife, the plaintiff herein was contending for and demanding that she be paid her portion of her father's estate. There is no question about this, as the evidence offered in defendant's behalf shows it as well as plaintiff's. In the meantime that property was in the possession of the defendant's full brother, the other child of William. T. Steele's second marriage, and defendant was seeking to obtain one-half of said property on the theory that their mother, Steele's second wife, was the owner of it at the time of her death. Plaintiff herein, however, was claiming and contending that she was entitled to a one-sixth of said property, on the theory that it really belonged to her father when he died, and the life estate of the second wife had ended. Plaintiff was contending thus and endeavoring to obtain a settlement of her claimed rights up to about the 18th of September, 1913, when she was advised by counsel that unless she instituted her suit prior to the 19th day of November, 1913, the tenth anniversary of her mother's death, the statute of limitations would bar her from any recovery. In the meantime the defendant, as one of the two heirs of the second wife, was about to sue her brother for a one-half interest in said property, on the theory that the second wife owned said property when she died; and, not wanting her suit interfered with or jeopardized in any way by complications arising on account of any suit based on plaintiff's contentions, defendant entered into an agreement with plaintiff that if the latter would forego the right to bring her suit and would assist defendant in hers, defendant would, when successful in her suit against her brother for one-half of said estate, give plaintiff one-sixth of the whole of said estate.

The present suit is an action, based upon said agreement, to recover the amount due plaintiff thereunder; the latter claiming that pursuant thereto she forebore bringing her suit and allowed the statute to run against her, while defendant at once pressed her suit against her brother and recovered judgment for one-half of the property then in the estate, and obtained property which she sold to him for $21,500, refusing, however, to pay plaintiff anything. The answer was a general denial.

The evidence clearly shows that plaintiff was claiming in good faith that she was entitled to a one-sixth part of the estate as an heir of her father, and was going to bring a suit to recover same, but that, shortly before the statute of limitations would bar her, the agreement sued on was made, and she did forego the right to bring her suit pursuant to the agreement, whereupon defendant brought her suit immediately and recovered judgment, obtaining one-half of the property, which she sold for $21,500 as heretofore stated.

Although defendant claims that the evidence does not show a definite agreement as claimed by plaintiff, yet we are satisfied it clearly does, and it is remarkable that, although defendant was present in court and heard the testimony to that effect, she never went upon the stand and denied it.

As neither a total nor partial failure of consideration was pleaded, the questions raised relative to consideration are not properly in the case. Woodin v. Leach, 186 Mo. App. 275, 172 S. W. 62. However, it is well settled that the giving up of the right to sue upon a claim entertained in good faith and believed to be well-founded is a good consideration for a contract of the nature here sued upon. 13 C. J. 347, § 198; Nelson v. Diffenderffer, 178 Mo. App. 48, 54, 163 S. W. 271; Rinehart v. Bills, 82 Mo. 534, 52 Am. Rep. 385. It cannot be successfully maintained that no recovery can be had in this case because plaintiff, in addition to foregoing her suit, did not "help" defendant in hers. The evidence discloses that defendant left the home of her brother in order to bring her suit against him, and that plaintiff gave her a home with her and counseled, encouraged, and advised her to press the suit, The most important help which could be rendered defendant by plaintiff was in refraining from bringing any suit in her own behalf.

It is urged that, as the property recovered by defendant in her suit against her brother was real estate, she not being able to recover any personalty, the contract sued on was not valid, as it was within the statute of frauds, not being in writing. The defense of ...