Kopp v. Moffett

• Citation: 167 S.W.2d 87,237 Mo.App. 375
• Parties: William H. Kopp, Respondent, v. Louise McGrew Moffett, Appellant
• Decision Date: 14 December 1942
• Court: Court of Appeals of Kansas

167 S.W.2d 87

237 Mo.App. 375

William H. Kopp, Respondent, v. Louise McGrew Moffett, Appellant

Court of Appeals of Missouri, Kansas City

December 14, 1942

Appeal from Jackson Circuit Court; Hon. John F. Cook, Judge.

Reversed and remanded.

A E. Watson and Martin J. O'Donnell for appellant.

(1) The court erred in refusing to sustain appellant's plea to the jurisdiction. Sec. 143 of Regulations 74 Income Tax Revenue Act of 1928, pp. 228, 259; Article 6, Sec. 34, Const of Mo.; Sec. 2437, R. S. Mo. 1939; Huckleberry v Ry., 324 Mo. 1038, 1039; Secs. 189, 220, R. S., Mo. 1939; Woerner's Am. Law of Adm. (3 Ed.), sec. 514, p. 775; Stephens v. Cassity, 104 Mo.App. 210; St. Louis Printing Co. v. Aufderheide, 226 Mo.App. 680; Hewitt v. Duncan, 226 Mo.App. 254, 259; Thompson v. Thompson, 217 S.W. 863, 864; Scott v. Royston, 223 Mo. 568; Smith v. St. Louis Union Trust Co., 340 Mo. 979. (2) The court erred in not holding, that respondent's alleged cause of action was barred by the five-year Statute of Limitations. Sec. 1014, R. S. Mo. 1939. (3) The court erred in refusing appellant's peremptory Instruction B. See authorities under Points (1) and (2); State ex rel. v. Shain, 344 Mo. 1003, 130 S.W.2d 491; McMaster v. Gould, 240 N.Y. 379, 386. (4) The court erred in modifying respondent's Instruction No. 1. State ex rel. v. Shain, 344 Mo. 1003, 130 S.W.2d 491. (5) The court erred in giving respondent's Instruction No. 1 as modified by the court. Seither v. St. Louis Dairy Co. (Mo.), 300 S.W. 280; Ward v. First Nat. Bank of Dexter, 27 S.W.2d 1066, 1070; Thomas v. Stott, 114 S.W.2d 142, 144; Moyes v. St. Louis, I. M. & So. Ry. Co., 186 S.W. 1027, 1031; Usona Mfg. Co. v. Shubert Christy Corp., 132 S.W.2d 1101. (6) The court erred in refusing to give appellant's Instruction No. 14 and in modifying same by inserting the word "impliedly" in lieu of the word "individually." State v. Wilcox (Mo.), 179 S.W. 479, 481. (7) The court erred in sustaining respondent's motion to amend his petition, filed March 4, 1940, long after the lapse of the term at which the verdict and judgment were entered, and long after appellant's motions for a new trial and in arrest were filed; and erred in overruling appellant's motion to strike respondent's motion to amend for the reason that there was no evidence warranting said amendment; and for the further reason that Sec. 822, R. S. Mo. 1929 (now Sec. 974, R. S. Mo. 1939) which respondent seeks to invoke has no application under the facts presented. Sec. 974, R. S. Mo. 1929; Walter v. Seafield, 167 Mo. 537, 546; Warren v. Chicago, B. & Q. Ry. Co., 122 Mo.App. 254. (8) The order striking the amended petition from the files and order overruling the motion to vacate said order amounted to a final judgment which was res judicata of the issues raised in said motions and operated to terminate the action. Reilly v. Russell, 39 Mo. 152; State ex rel. v. Buckner, 207 Mo.App. 48, 53; Johnson v. Latta, 84 Mo. 139, 142.

Glen A. Wisdom for respondent.

(1) The executrix is liable personally for the services performed by another which she ordered unless the authority of the excutrix to make the contract is conferred by (a) the will, (b) statute, or (c) the court. There was no order of the probate court authorizing the employment. Yeakle v. Priest, 61 Mo.App. 47; Powell v. Powell, 23 Mo.App. 365; Richardson v. Palmer, 24 Mo.App. 480, 488; Summer v. Williams et al., 8 Mass. 199; Ferrin v. Myrick, 41 N.Y. 319. (2) As to defendant's individual liability see authorities under point (1) particularly: Yeakle v. Priest, 61 Mo.App. 47; Taylor v. Davis, 110 U.S. 335; Richardson v. Palmer, 24 Mo.App. 480, 488; Silsby v. Wickersham, 171 Mo.App. 128. And authority under point (4). White v. Hughes, 88 S.W.2d 268, 271.

OPINION

Sperry, C.

William H. Kopp, plaintiff, sued Louise McGrew Moffett, defendant, and Louise McGrew Moffett, executrix of the estate of T. S. Moffett, deceased, for services claimed to have been rendered by plaintiff as an accountant in auditing the books and filing income tax returns in connection with the estate of defendant's deceased husband, T. S. Moffett. In a second amended petition, upon which trial was joined, Louise McGrew Moffett, alone, as an individual, was sued. Judgment was for plaintiff in the amount of $ 1125.20, which includes interest. Defendant has appealed.

T. S. Moffett died December 22, 1930. Deceased was at the time of his death, interested in the following partnership firms: Moffett Brothers in Kansas, Moffett Brothers in Missouri, Moffett Brothers & Andrews, Moffett Bros., Cattle and Lumber Company, and Andrews, Moffett & Lewis and also in Moffett Bros. & Andrews Commission Company, Incorporated. He was also, at that time, administering the estate of Moffett Brothers, a partnership in which deceased had been a partner with his deceased brother, John Moffett.

At the time of his death deceased was an active partner in the firm of Andrews, Moffett & Lewis, and after his death the books of that firm, as well as deceased's own private books, were kept in his former office but the Commerce Trust Company had charged of the books of Moffett Brothers Estate, Moffett Brothers & Andrews, Moffett Brothers Cattle Land and Lumber Company, and Moffett Brothers & Andrews Commission Company, a corporation. Prior to the death of John Moffett, a brother of deceased, the books of all of these firms were kept in deceased's office in the Livestock Exchange Building in Kansas City, Missouri. Defendant, for many years prior to February 17, 1931, had been chief bookkeeper and in charge of the books of Thomas Moffett and of Andrews, Moffett & Lewis, and of other business firms in which T. S. Moffett was interested. After the death of T. S. Moffett defendant, who was the executrix of the estate and the sole legatee under the will, had in charge only the books of deceased and the books of the former partnership of Andrews, Moffett & Lewis; but as to the latter firm she had charge of the books that related to transactions prior to her husband's death only, the books from that date forward being in charge of and kept by Mr. Andrews, a surviving partner.

There was evidence tending to prove that in 1925 plaintiff was engaged by T. S. Moffett, and others of the partnership, to audit the books of the various firms and to file Federal and State income tax returns therefor; that it was then agreed between plaintiff and deceased, and others interested, that plaintiff's remuneration for such services would be $ 25 per day, and that a "day" was to consist of seven hours of work; that defendant was then employed in said office as a bookkeeper and knew of this agreement; that plaintiff. in 1925, made an audit of the books and instructed defendant and others of the office force in the installation of a bookkeeping system which was still in effect at the time of the trial; that in 1926 and 1927 plaintiff audited the books above mentioned, assisted in filing income tax returns thereon, and was paid at the above mentioned rates; that each year after the first he would merely call the office by telephone to find out when it would be convenient to his clients to do said work, and then would go down and do the work, he being paid therefor on the terms above mentioned; that in 1928 plaintiff took one C. A. Pearson, an accountant and an employee of plaintiff, to the Moffett offices, introduced him to defendant and others in charge, and arranged for Pearson to thereafter do said auditing and income tax work, under plaintiff's supervision, upon the terms and conditions which had, theretofore, prevailed; that Pearson did said work in 1928, 1929 and 1930; that the custom was, in the years of 1929 and 1930, sometime after January 1, Pearson would call defendant by telephone, would ask when the books would be ready for him to audit and make out income tax reports, and defendant would tell him when the books would be ready; that Pearson would then go down and do the work and plaintiff was paid for such work done in 1929 and 1930, according to above mentioned arrangements, and at above mentioned rates; that prior to February 17, 1931, Pearson called defendant, in the same manner as had been his custom in previous years, and asked when the books would be ready to audit and to make out income tax returns; and that he called twice without being able to complete arrangements, because of some reason, but on the third call defendant informed him that the books were ready for him to go to work on. The procedure followed at this time was identical with that followed in 1929 and 1930.

Pearson testified that nothing was said in this telephone conversation about rates of pay; that he went to the Moffett office, pursuant to arrangements so made with defendant, and there talked with defendant and was given access to the books; that defendant did not tell him to do anything different from the way it had been done in previous years and did not give him any additional instructions; that he audited the books of T. S. Moffett, deceased, and of Andrews, Moffett & Lewis; that he also made out and filed income tax returns thereon; that he dictated letters to the United States Internal Revenue Department, and to the State Auditor, requesting two different extensions of time for filing said reports, all of which letters were signed by defendant; that he personally filed said income tax returns; that he spent a total of 142 hours in said work. He testified that the books of T. S. Moffett and of Andrews, Moffett & Lewis were in the office of which defendant had charge; that defendant did not tell him that she could not afford to pay for auditing the books at that time and did not tell him to limit his work to making out income tax returns alone; that all of the work he...