Knapp v. Knapp

• Decision Date: 10 April 1906
• Citation: 118 Mo. App. 685,96 S.W. 295
• Parties: KNAPP v. KNAPP.
• Court: Missouri Court of Appeals

96 S.W. 295

118 Mo. App. 685

KNAPP v. KNAPP.

St. Louis Court of Appeals. Missouri.

April 10, 1906.

On Rehearing, June 5, 1906.

1. BAILMENT—REQUISITES—IDENTITY.

Intestate on inheriting certain funds from an English estate, went to England, and, after obtaining the money, obtained a draft for a portion thereof, payable to his mother, which she cashed and gave to defendant, her daughter, $2,000, which the daughter deposited to her individual credit with a trust company. Held, that defendant was a bailee though it was not agreed or intended that the identical money which she received from her mother, as distinguished from a similar sum, should be returned to intestate.

On Rehearing.

2. FRAUDULENT CONVEYANCES — BAILMENTS— VALIDITY AS BETWEEN PARTIES.

Where plaintiff's intestate bailed certain funds with defendant for the purpose of fraudulently preventing a creditor from enforcing his claim, but intestate never actually devested himself of title to the funds, his fraudulent intent was no defense to an action by his administratrix to recover the fund from the bailee.

Appeal from St. Louis Circuit Court; Warwick Hough, Judge.

Action by Clara P. Knapp, as administratrix of the estate of Ralph H. P. Knapp, deceased, against Georgia Knapp. From a judgment for plaintiff, defendant appeals. Reversed.

John S. Leahy and Bond, Marshall & Bond, for appellant. Henderson & Trigg, for respondent.

BLAND, P. J.

Omitting caption, the petition is as follows: "Plaintiff states that Ralph H. Pybus Knapp, deceased, late of the city of St. Louis, state of Missouri, departed this life on or about the 20th day of January, 1904, leaving him surviving, as his widow, the plaintiff herein; that thereafter, to wit, on the 18th day of April, 1904, the plaintiff was, by the probate court in and for the city and state aforesaid, duly appointed administratrix of the estate of the said Ralph H. Pybus Knapp, deceased; that, under which appointment, she has duly qualified, and is now in charge of said estate as the administratrix thereof. Plaintiff states that in or about the month of May, 1902, the said Ralph H. Pybus Knapp, deceased, placed in the keeping, care, and custody of the defendant a large sum of money, to wit, the sum of $5,000, with and under the understanding and agreement, then had and made, that said sum of money should be held and retained by the defendant for the said Ralph H. Pybus Knapp, and to be repaid and redelivered to the said Ralph H. Pybus Knapp, upon request; that the defendant, since said last-mentioned date, has continued to retain the possession and custody of said sum of money; that, though the payment of said sum of money has been demanded by the plaintiff, as such administratrix, defendant has wrongfully refused, and still refuses to pay the same, or any part thereof, to the plaintiff. Wherefore plaintiff prays judgment for the sum of $5,000, with interest, and the costs of this action." The answer was a general denial. The cause was submitted to the court without the intervention of a jury, who, after hearing the evidence, found the issues for plaintiff and rendered judgment in her favor for $2,180 and interest thereon. After taking the usual preliminary steps, defendant appealed.

The history out of which the litigation grew, briefly stated, is as follows: In 1902, Ralph Knapp, as the elder son of his father, was, under the law of primogeniture, entitled to an estate or interest in an estate in England of the value of about $7,000. He employed the law firm of Dodge & Mulvihill, of the city of St. Louis, to establish his right in the estate. His attorneys were successful, and as soon as the matter was settled in his favor he sailed for England and collected about $7,000 of the estate. He purchased a draft in London for $5,811.43, payable to his mother, and sent it to her. She received the draft, cashed it, and out of the proceeds handed or gave her daughter, the defendant herein, $2,000, which the latter, on January 23, 1903, deposited to her individual credit with the Mississippi Valley Trust Company. Ralph Knapp spent the greater portion of the balance of his inheritance in seeing Europe, and then returned to his home in St. Louis. On his return he refused to pay Dodge & Mulvihill their fee of $1,800. They brought suit against him to recover the fee, and obtained a judgment for the amount claimed. The judgment was collected of Knapp's mother through garnishment proceedings.

It is practically conceded by defendant that Ralph Knapp placed the $5,811.43 in the hands of his mother for the fraudulent purpose of defeating Dodge & Mulvihill in the collection of the debt he owed them. Defendant testified that she had kept a deposit account with the Mississippi Valley Trust Company for several years prior to 1903. The state of her account on May 16, 1903, was as follows:

                Balance                        $   94 77
                Jan. 23, 1903 ................  2,000 00
                Jan. 26, 1903 ................     30 00
                Feb.  4, 1903 ................     67 00
                Feb.  5, 1903 ................             $    7 00
                Feb.  9, 1903 ................              2,180 00
                May  16, 1903 ................                  4 77
                                              _________   _________
                                              $2,191 77   $2,191 77
                

Defendant's evidence shows that her income from all sources was, and had been, for several years, $35 per month. She testified that after her brother returned from England she gave him several checks on her bank account for the purpose of enabling him to pay his bills, and at one time gave him a check for $100. On February 19, 1903, defendant, accompanied by Mrs. Mullins, a friend, went to the Mississippi Valley Trust Company and withdrew $2,180 in currency, which she placed in the bosom of her shirtwaist. Defendant and her friend then walked over to the William Barr Dry Goods Company where they met Ralph Knapp and Charles Ramlose, who had been waiting there for them for about half an hour. When the parties met, Ralph Knapp, addressing defendant, his sister, said, "Well, did you get my money, Sis?" Defendant answered, "Yes, Ralph; I have it here," pointing to the bosom of her shirtwaist. Defendant testified that after she withdrew the money from the trust company she took it home and kept it there. The evidence tends to show that defendant apprehended she might be garnished on process against her brother, and withdrew the money from the trust company to defeat the garnishment. It also shows that on several occasions she stated that she was taking care of her brother's money for the purpose of avoiding the payment of what she said was "an unjust claim against him." On the death of Ralph Knapp, defendant made arrangements for his funeral and stated she had some $400 or $500 of his money with which she intended to pay the funeral expenses, but she never paid them. The evidence for the defendant tends to show that the money sent from England by Ralph Knapp to his mother was in part payment of a debt he owed her, and that out of this money she made defendant a present of $2,000.

It is contended by defendant that the evidence tends to show two theories—one, that the money sent by Ralph Knapp to his mother was in payment of a debt he owed her, and the other, that the money was transferred to her by Ralph for the purpose of defrauding his creditors; and it is strenuously contended there is no evidence that the money was deposited by Ralph Knapp with his mother to be returned to him, and, hence, there is no proof of a bailment. If either theory of defendant is correct, then the judgment should be reversed, for if the money was sent from England to pay a debt, which Ralph owed his mother, of course, it cannot be recovered, nor can it be recovered by Ralph's administratrix if he conveyed it to his mother for the purpose of defrauding his creditors. Brown's Adm'r v. Finley, 18 Mo. 375; Hall v. Callahan, 66 Mo., loc. cit. 322; Zoll v. Soper, 75 Mo., loc. cit. 462; Jackman v. Robinson, 64 Mo., loc. cit. 292; Roan v. Winn, 93 Mo. 503, 4 S. W. 736; Thomas v. Thomas, 107 Mo. 459, 18 S. W. 27; Goldstein v. Winkelman, 28 Mo. App. 432. There is no evidence showing or tending to show an arrangement or understanding that Ralph Knapp's mother should hold the London draft for him, or that she should cash it and hold the identical cash to be returned to him on demand; and defendant contends that for this reason (that the identical thing or property was not to be returned) it is conclusive there is no bailment in the case. The general rule is that there can be no bailment unless the identical thing bailed is to be returned to the bailor. Coleman v. Lipscomb, 18 Mo. App. 443; Potter v. Mt. Vernon Roller Mill Co., 101 Mo. App. 581, 73 S. W. 1005; Trunick v. Smith, 63 Pa., loc. cit. 23. Bailment in most instances is founded on contract, but not in every instance. As said in Hale on Bailments, p. 14: "Wherever possession of a thing is knowingly acquired, unaccompanied by the right of ownership, a bailment relation is established, and the person in possession holds the things acquired simply as bailee." Schouler says: "The simple fact of knowingly holding possession of property which belongs to another will oblige the possessor, no matter how he came by it, to apply a certain care and diligence, and stand to a certain bailment accountability." Schouler's Bailments & Carriers (3d Ed.) § 3.

There is evidence in the record tending to show that defendant knowingly came into possession of the $2,000 in money belonging to Ralph Knapp, unaccompanied with the right of ownership in herself. If so, then she became and was, as to such money, a bailee. But her counsel insists that as she deposited this money with the Mississippi Valley Trust Company to her personal credit, and as there was no understanding that the identical money she received from her mother should be returned to her brother, there was no bailment. In Repplier v. Jacobs, 149 Pa. 167, at...