Kinchelo v. Priest

• Decision Date: 07 June 1886
• Citation: 1 S.W. 235,89 Mo. 240
• Parties: KINCHELO v. PRIEST, Ex'r, etc.
• Court: Missouri Supreme Court

1 S.W. 235

89 Mo. 240

KINCHELO v. PRIEST, Ex'r, etc.

Supreme Court of Missouri.

June 7, 1886.

1. BAILMENT — FOR HIRE — QUESTION FOR JURY.

Whether a bailment was for hire, or merely gratuitous, is purely a question of fact for the jury in each particular case.

2. SAME — NEGLIGENCE.

A gratuitous bailee must exercise the same degree of care and diligence that an ordinarily prudent man would in relation to his own business affairs.

HENRY, C. J., and SHERWOOD, J., dissent.

Appeal from Scotland circuit court.

Action to recover the value of notes left by plaintiff with defendant's intestate for collection, and by the latter held, uncollected, until barred by the statute of limitations. Judgment for defendant, and appeal therefrom by plaintiff.

McKee & Smoot, for appellant, James H. Kinchelo.

BLACK, J.

The plaintiff, in 1867, before leaving this state, gave to the defendant's testate, Green, 14 notes, and took a receipt therefor, in which it is stated that the notes are to be collected and accounted for. Green died in 1882, and plaintiff filed an account in the probate court, giving a list of the notes, and stating that he did not know whether the notes had been collected; that they could have been collected, and, if not, deceased suffered them to become barred by the statute of limitations; that deceased was to have 5 per cent. for his services, and that the estate owed him, etc. Three of the notes, signed by Downing and others, and one small one, signed by Green, in all amounting to about $700, were found by the executor among the papers of the deceased, with credits upon the Downing notes. Some correspondence offered in evidence shows that, from 1867 to 1882, Green collected and remitted to the plaintiff various sums of money; and the evidence is strong to the effect that he remitted or applied all money collected. Green, in a letter dated in 1867, says Downing had promised payment in the following January. In 1881 he says Downing had promised several times to pay, and expressed some fears about the Arnold note; and in 1882, speaking of this same note, which was signed by Downing, he says he let the date slip out before he knew it, and that Mr. Downing said "a note never dies with him." The real contest is as to the barred notes.

The court, for the plaintiff, instructed the jury that if deceased, while in the discharge of his trust, negligently permitted the statute of limitations to run against part of the notes, and by reason of said neglect the debts were lost, then the plaintiff was entitled to recover; and refused to instruct that if the notes could have been collected by resorting to legal means, and yet were allowed to run until barred, the plaintiff should recover. The court, of its own motion, in substance, told the jury that if the deceased, in his life-time, exercised the same kind of care in the collection of the notes that an ordinarily prudent man would have done with his own business affairs, then the verdict should be for the defendant as to the barred notes.

1. There is no doubt but the confidence induced by undertaking services for another is a sufficient consideration for a faithful discharge of the trust, — 2 Pars. Cont. (6th Ed.) 98, — and a depositor makes out a prima facie case, even against an unpaid bailee, by showing a deposit made, demand for, and refusal of, the thing deposited. Huxley v. Hartzell, 44 Mo. 370; Wiser v. Chesley, 53 Mo. 547. But this case does not assume that form of action. So far as the barred notes are concerned, it is based upon negligence of the deceased. In all such actions the burden of proof rests upon the plaintiff, and he must prove each material fact necessary to create a liability. Edw. Bailm. § 106.

The first refused instruction asked the court to tell the jury that the written agreement — the receipt — implied a consideration to be received by Green out of the notes to be collected by him. The receipt did not so say, and it was not the proper province of the court to so declare. The evidence must determine whether the undertaking was gratuitous or not, and the jury should take all the circumstances into consideration. The plaintiff does not appear to have made any effort to show that Green was to have any compensation, nor did he seek to have that question submitted to the jury as a question of fact, but relied upon a supposed presumption of law, which does not arise in this case. It is said in Schonler, Bailm. 35, if the...