Laughlin v. Laughlin

• Decision Date: 21 January 1922
• Citation: 237 S.W. 1024,291 Mo. 472
• Parties: JULIAN LAUGHLIN, Appellant, v. HENRY D. LAUGHLIN
• Court: Missouri Supreme Court

237 S.W. 1024

291 Mo. 472

JULIAN LAUGHLIN, Appellant, v. HENRY D. LAUGHLIN

Supreme Court of Missouri

January 21, 1922

Appeal from St. Louis Circuit Court. -- Hon. John W. McElhinney Judge.

Affirmed (in part); reversed and remanded (in part, with directions).

E. McD. Stevens for appellant.

(1) The trial court erred in finding for respondent on the first count of the petition, by applying the Statute of Limitations to appellants' side of an account that ran to June 18 1914, when suit was filed on October 22, 1917, because the acount began as far back as January 1, 1878, when it was shown to be a continuous account from 1878 to 1914, and was so treated by both parties in their correspondence and agreement to arbitrate up to the year 1917. Chadwick v Chadwick, 115 Mo. 581; Ring v. Jamison, 66 Mo 424; Bank v. Thayer, 184 Mo. 61. (2) The court erred in finding for respondent on the second count of appellant's petition, as to the Monegaw Springs lands; when respondent admitted that all this 1650 acres of land belonged to appellant; that respondent had no interest in it; that the title was put in his name for some forgotten reason; that he conveyed these lands to others by warranty deeds; and that he paid not one dollar of the proceeds to appellant; whereby a resulting tract was established, and appellant's evidence showed clearly that appellant discovered respondent's frauds only three days before this suit was filed, and the doctrine of laches does not apply. R. S. 1909, sec. 2869; McMurray v. McMurray, 180 Mo. 526; Sauter v. Leveridge, 103 Mo. 615; Orr v. Wilmarth, 95 Mo. 212; State ex rel. Shipman v. Allen, 132 Mo.App. 98, 113; Silvig v. Hendrickson, 193 Mo. 265. (3) The court erred in finding for respondent on the second count of appellant's petition, as to appellant's half interest in Sac River farm; in the face of appellant's overwhelming testimony as to his possession and sole ownership in the entire tract; as corroborated by other witnesses, and also by respondent's admission that he heard of Sac River farm solely through his brother, the appellant, and knew something of appellant's services to the former owner, Funkhouser; also with respondent's admitted intention and promise to allow appellant "something" for putting him onto a good thing, wherein appellant had already reduced the mortgages from $ 11,000 to $ 2,500, and respondent put nothing into it, other than assuming payment of the $ 2,500 deed of trust; when the running account showed that respondent caused appellant to pay the taxes, $ 350; cost of building the barn, $ 925; insurance, $ 100, and a draft of $ 500 for cattle put on the farm by respondent. None of which sums were ever returned to appellant. (4) The court erred in finding for respondent on the second count of appellant's petition as to the $ 2,000 of Straight Creek Coal Co. stock, under appellant's testimony and respondent's admissions in his correspondence with appellant. (5) The court erred in not finding that respondent was a trustee ex maleficio as to the Monegaw Springs and Sac River farm properties. (6) The court erred in finding for respondent on his unsupported testimony as against his written contracts, letters, drafts, notes, requests for money, and the testimony of eight opposing witnesses. (7) The court erred in excluding the answer of T. C. Laughlin to the 4th and 5th interrogatories in his deposition and in excluding the answers of Jesse B. Payne to his 8th and 9th interrogatories. Because parol evidence is admissible to establish the facts as to a resulting trust, as such trusts are not within the Statute of Frauds and are expressly excepted. R. S. 1909, sec. 2869; Plumb v. Cooper, 121 Mo. 668; Cardit v. Maxwell, 142 Mo. 266; Leahey v. Witte, 123 Mo. 207; Cason v. Cason, 28 Mo. 47; Richardson v. Champion, 143 Mo. 538; Damschroeter v. Thias, 51 Mo. 100; Shaw v. Shaw, 86 Mo. 594. (8) The court erred in holding that the Statute of Limitations would run in favor of a defendant, who, being a resident of Missouri previously to 1889, absents himself from the State from about 1888 until some indefinite time after 1900 on a transaction that occurred before 1900. R. S. 1909, sec. 1897; Orr v. Wilmarth, 95 Mo. 212; McMurray v. McMurray, 180 Mo. 526; Sauter v. Leveridge, 103 Mo. 615. Independent of Section 1897, the common law suspends the statute during absence from the State. Cobb v. Houston, 117 Mo.App. 645. And appellant and respondent, having entered into an arbitration agreement in 1898, in which all technicalities were waived, prevents the statute from running, independent of respondent's absence from the State. Bridges v. Stephens, 132 Mo. 524. (9) The trial court erred in not finding that respondent was a trustee as to the 1650 acres of Monegaw Springs land, and as to appellant's half interest in Sac River farm, and in the $ 2,000 of Straight Creek Coal Co. stock. (10) The court erred in finding for respondent on respondent's third counterclaim, as the finding was against the law and the evidence of this case.

Abbott, Fauntleroy, Cullen & Edwards for respondent.

(1) Plaintiff's action is not an action brought to recover a balance due on a mutual open and current account where there have been reciprocal demands between the parties. The account sued on has none of the characteristics or features of a running account. R. S. 1909, sec. 1893; Chapman v. Hogg, 135 Mo.App. 654; Leoffel v. Hoss, 11 Mo.App. 133; Sidway v. Lumber Co., 187 Mo. 649; 17 R. C. L. secs. 91, 92, pp. 730, 731; 2 Wood on Limitations (4 Ed.) secs. 277, 280, p. 426. (2) The provision of our statute with reference to the absence of the debtor from the State applies only if he is a resident when the cause of action accrues. Mathews v. Appleberry, 57 Mo.App. 615; Fike v. Clark, 55 Mo. 105; Mastin v. Tilleston, 33 Mo.App. 622; Thomas v. Black, 22 Mo. 330; Scroggs v. Daughtery, 53 Mo. 497; Orr v. Wilmarth, 95 Mo. 212, 8 S.W. 258; Smith v. Bogliolo, 5 Mo. 344. (3) The fact that the debtor is outside of the State does not prevent the running of the statute, where the residence of the debtor remains within the State, so that service can be had on him which will authorize a personal judgment. Bensley v. Haeberle, 20 Mo.App. 648; Venuci v. Cademartori, 59 Mo. 352. (4) Where a party goes to another State with the intention of returning, leaving in Missouri his family and property, the Statute of Limitations is not suspended as to him during his absence. Garth v. Robards, 20 Mo. 523, 64 Am. Dec. 203. (5) When a running account is balanced and adjusted by one of the parties thereto, with the knowledge of the other, it becomes an account stated, and its items become subject to the Statute of Limitations, though the balance is not paid, but is transferred to a succeeding account, the balance in such case being treated as an item of a new running account. Estes v. Hamilton-Brown Shoe Co., 54 Mo.App. 543; Agan v. File, 84 Hun, 607, 32 N.Y.S. 1066; Baird v. Crank, 98 Cal. 293. (6) Where cause is submitted to the court without a jury, and no declarations of law are asked and none given and no findings of fact, the only possible question on appeal is whether there is any substantial evidence to support the judgment rendered. Moore v. Carlisle, 209 S.W. 309. (7) When a prima-facie case is not made by plaintiff, and no instructions are asked or given, this court will not review evidence to determine its sufficiency to sustain plaintiff's case. Davis v. Dawson, 273 Mo. 512. (8) Where an action tried to the court was not presented on an agreed statement of facts, and reasonable minds differ as to the evidence, the application of the law to the facts cannot be reviewed, unless propositions of law in the form of declarations disclosing the theory on which the case was tried were duly requested. Life Assur. Soc. v. Natl. Bank of Commerce, 197 S.W. 117; Sieferer v. St. Louis, 141 Mo. 592; Sutter v. Raeder, 149 Mo. 307; Sell v. Bretelle, 162 Mo. 382; Jordan v. Davis, 172 Mo. 599, 608.

SMALL, C. Brown and Ragland, CC., concur. Woodson, Higbee, David E. Blair and Walker, JJ., concur; James T. Blair, C. J., and Graves, J., dissent; Elder, J., not sitting.

OPINION

In Banc.

SMALL C.

-- The petition, filed in 1917, is in two counts. The first count is at law for a balance of $ 20,404, due on open and running account, extending from January, 1878, to June, 1914. The second is a count in equity, for an accounting for 20 shares of stock of the face value of $ 2,000 in a coal company, which stock plaintiff loaned to defendant in 1883; also for the proceeds from the sale of two tracts of land in St. Clair County, Missouri, which defendant acquired title to in 1883 and held in trust for plaintiff.

The defense to both counts was a general denial, the five and ten-year Statutes of Limitations, and laches. The answer also contained several counterclaims for money loaned plaintiff by defendant after 1898.

The reply traversed the answer and counterclaims.

The evidence on the first count of the petition is very voluminous. We have examined it carefully. It was conflicting and its probative force rested upon the verbal testimony of the plaintiff and defendant. There was no instrument in writing by which a case was made out for plaintiff by documentary evidence. Nor were defendant's admissions sufficient to make out plaintiff's case.

As to the count in equity: The evidence shows that the plaintiff and defendant were lawyers and brothers, the defendant being the elder. He went to St. Louis and commenced the practice of his profession in 1869. He was married, with a family. Plaintiff, then single, went to St. Louis in 1877, and the brothers occupied the same office for many years. The plaintiff soon acquired a profitable business. As early as 1878, he...