Kostuba v. Miller

• Decision Date: 26 January 1897
• Citation: 38 S.W. 946,137 Mo. 161
• Parties: Kostuba v. Miller, Appellant
• Court: Missouri Supreme Court

38 S.W. 946

137 Mo. 161

Kostuba v. Miller, Appellant

Supreme Court of Missouri, First Division

January 26, 1897

Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.

Affirmed.

J. E. & J. F. Merryman and William Moore for appellant.

(1) The petition is one at law to which defendant interposed a general denial, and also an equitable defense, but the court ignored the equitable defense and tried the case on the legal issues alone. This court has more than once decided, where the answer to an action at law sets up an equitable defense and prays for affirmative relief, the cause becomes an equitable suit and is governed by the rules of procedure applicable thereto. Wendover v. Baker, 121 Mo. 273; Freeman v. Wilkerson, 50 Mo. 554; Conran v Sellew, 28 Mo. 320; Ellis v. Kreutzinger, 31 Mo. 432; Richardson v. Pitts, 71 Mo. 128; Stivers v. Horne, 62 Mo. 473; Allen v Logan, 96 Mo. 591. (2) The court failed to find the facts on which to base the conclusions of law that Martin Graf was of unsound mind and incapable of attending to business at the time of the transaction. (3) The law does not require any particular degree of understanding to make a contract. All that is required is sufficient capacity to understand the business he was engaged in, and, in determining whether Martin Graf was at the times he indorsed the certificates of deposit, unable and incapable of understanding the business transaction in which he was engaged, will take into consideration all the facts and circumstances surrounding the grantor, and the obligations that he was under to defendant for the services rendered, and the care, attention, and nursing given her aged father. Dickson v. Kempinsky, 96 Mo. 252; Keithly v. Keithly, 85 Mo. 217; Jackson v. Hardin, 83 Mo. 175; Brinkman v. Rueggesick, 71 Mo. 553; Benoist v. Murrin, 83 Mo. 175; Moore v. Moore, 67 Mo. 192. (4) Child may recover for services if he produce proof of services from which a promise of payment may be inferred. McMillen v. Lee, 78 Ill. 340; Freeman v. Robinson, 38 N. J. 383; Murky v. Brewster, 10 Hun (N. Y.), 16; 17 Am. and Eng. Ency. of Law, 340; Smith v. Myers, 19 Mo. 433.

John A. Gilliam for respondent.

(1) If defendant seeks to rebut presumption arising from relationship that no charge for caring for infirm parent is intended, she should be required to show a state of facts overcoming the natural presumption that she did not intend to charge for the services. Erhart v. Dietrich, 118 Mo. 418; 24 S.W. 188; Snyder v. Free, 114 Mo. 360; Morris v. Barnes, 35 Mo. 112; Hart v. Hart, 41 Mo. 441; Guenther v. Birckicht, 22 Mo. 439; Bank v. Aull, 80 Mo. 199. (2) Even if this counterclaim for services were treated as an equitable defense, for which construction we fail to see a scintilla of reason, the courts of Missouri have decided that it is still an action at law. Kerstner v. Vorweg, 32 S.W. 298; Carter v. Prior, 78 Mo. 222. (3) Appellant treated it as a law case below. She can not shift her ground. Bank v. Gallaher, 43 Mo.App. 482; Ellis v. Harrison, 104 Mo. 170; Harper v. Morse, 114 Mo. 317. (4) Doctor Hochdoerfer had fully qualified as an expert, and the allowance of the question as to Graf's insanity was solely within the discretion of the court and its finding is conclusive. Thompson v. Ish, 99 Mo. 160; Gates v. Railroad, 44 Mo.App. 488; Turner v. Harr, 114 Mo. 335; State v. Cole, 94 N.C. 958; Flynt v. Bodenhamer, 80 N.C. 205. (5) This being a trial before the court great rigidity of rule as to admission of evidence is not required, as it is not to be expected that the court will be easily misled. McCullough v. Ins. Co., 113 Mo. 606; Hellman v. Bick, 55 Mo.App. 168. (6) This case will clearly come within the rules as to evidence laid down in the following cases. Laumeier v. Gehner, 110 Mo. 122; Julian v. Calkins, 85 Mo. 202; Lane v. Lane, 113 Mo. 504; Crook v. Tull, 111 Mo. 283. (7) If the question of undue influence was not as fully gone into in the declarations as appellant wanted, she should have asked further declarations thereon. Cochran v. Thomas, 33 S.W. 6. (8) Having submitted to the trial court in her declarations of law, the question of undue influence as a question of fact, she can not now allege it to be a question of law. Ellis v. Harrison, 104 Mo. 270.

Brace J. Barclay, P. J.

OPINION

Brace, J.

This suit was instituted on the twenty-third of December, 1893, by Charles J. Kostuba as guardian and curator of Martin Graf an insane person; after the case was brought to this court by appeal, Graf died, and the St. Louis Trust Company was appointed and qualified as his administrator, and substituted as party plaintiff and respondent herein.

The petition is in four counts. The court found in favor of the defendant on the issues in the first two counts, and in favor of the plaintiff on the third and fourth counts, and from the judgment on the finding on these counts in favor of the plaintiff the defendant appealed.

The third count charges, in substance, that Martin Graf on the fifth day of September, 1892, being then ninety-two years of age and of unsound mind, and having on deposit in the National Bank of Commerce in St. Louis, the sum of $ 5,150, was induced by the undue influence of the defendant over his weak and incapable mind, and without any valuable consideration, to transfer and deliver the same to her. That the same, in equity, was received by her to the use of the said Graf, has been demanded and payment thereof refused, and judgment for that amount with interest is prayed for.

The fourth count charges that in like manner and by like means she received from the said Graf the further sum of $ 5,000 on the third day of July, 1893, which he then had on deposit in the Laclede National Bank of St. Louis, for which amount judgment is also prayed.

The first and second counts on which the issues were found for the defendant were also for moneys had and received by the defendant from the said Graf, obtained as is charged in like manner and by like means, the first for $ 3,500, obtained on the second day of January, 1889, and thereafter invested in premises known as 2324 Scott avenue, St. Louis, Missouri; the second for the sum of $ 2,500 obtained at divers times, in sums of $ 500 each, during the years 1890, 1891, 1892, and 1893.

The answer of the defendant, after admitting the appointment of plaintiff as guardian, and that she is the daughter of said Graf, denies the allegations contained in each count of the petition, interposes a plea of the statute of limitations to the first count, and for further answer to the petition, it is therein alleged:

"That on or about the thirty-first day of May, 1871, defendant, at the special instance and request of Martin Graf, her father who was then about seventy (70) years of age, and in consequence of his age and weakness of body, needed the special care and attention of this defendant, and, at his special instance and request, defendant moved to his house, in the city of St. Louis, and became his servant, and then and there undertook to take charge of all the household duties; to cook, wash, and in every respect to perform all the labor attendant on keeping the house in order; also to take personal charge and to give her time, attention and care to her aged father, in the daytime as well as the night. And from the day and year aforesaid, till the seventeenth day of October, 1893, this defendant continued to perform all the labor in doing the work of said house as well as the cooking and washing, and giving her watchful care and attention to her father. And this defendant says that her services done and performed as aforesaid, were well worth the sum of one thousand ($ 1,000) dollars per year. Therefore, defendant says that she denies each and every allegation in plaintiff's petition, charging her with obtaining any money or property from the said Martin Graf at the various times charged in plaintiff's petition, by undue influence and persuasion. And defendant says, at no time did she ever attempt to exercise any undue influence over the mind of Martin Graf. She admits that at various times from the thirty-first day of May, 1871, to the seventeenth day of October, 1893, the said Martin Graf, her father, gave her various sums of money, but it was in consideration of the work and labor and services performed by this defendant for the said Martin Graf, as aforesaid, all of which was actually necessary for the preservation of the property and the well-being and comfort of her said father, Martin Graf.

"This defendant admits that sometime from the fourth day of September, 1886, to the fourth of September, 1888, her father Martin Graf, advanced her the sum of about thirty-five hundred ($ 3,500) dollars, with which she purchased a home for herself, and for the purpose of taking care of her aged father; all of which was done with the knowledge and consent of her said father, he superintending the purchase of said property and having the deed made to this defendant. And at the time he gave to his other children, to wit, to Mrs. Hoover, the sum of four thousand ($ 4,000) dollars, and to her other sister, Mrs. Bottoner (Mrs. Bardenheir) the sum of four thousand five hundred ($ 4,500) dollars.

"Defendant further says, that she denies that she ever received any money or property of any kind or description from the said Martin Graf when he was not mentally capable of making disposition of said property. That in every transaction that she ever had with him, he was fully capable of understanding the transaction in all its bearings, and this defendant never did by any act, deed or persuasion obtain any property wrongfully and illegally from the said Martin Graf. That the labor and services performed as aforesaid by defendan...