Laughlin v. Laughlin

• Decision Date: 26 May 1921
• Docket Number: No. 21741.,21741.
• Parties: LAUGHLIN v. LAUGHLIN.
• Court: Missouri Supreme Court

232 S.W. 114

LAUGHLIN v. LAUGHLIN.

No. 21741.

Supreme Court of Missouri, Division No. 2.

May 26, 1921.

Motion for Rehearing Denied June 23, 1921.

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

Suit by Elmyr A. Laughlin against Henry D. Laughlin. From judgment for defendant, plaintiff appeals. Affirmed.

Facts.

This is a suit brought by Elmyr A. Laughlin, son, against his father, Henry D. Laughlin, in the circuit court of St. Louis county, Mo., March 14, 1917. The petition was amended by interlincation. The cause was tried on said petition as amended, but on account of its great length it will not be set in have verbs, for reasons hereinafter appearing making it unnecessary.

It is sufficient to say that it pleads transactions large in number and amounts, complicated, with page after page of exhibits containing a wilderness of figures, and covering a period of 15 years, from 1900 to 1915, when the rupture between these parties which led to the suit occurred. It alleges that

"Neither party has kept a true or full account of said subject-matter, and that neither is able by himself to state a full, fair, or accurate account with respect thereto, and that a true balance can be ascertained only as the result of an accounting and discovery."

It embraces also an action for slander against defendant, in which plaintiff lays his damages at $25,000. It concludes with a prayer for a money, judgment or credits therefor in the instant suit.

Defendant filed a general and a specific denial of the averments of the petition, made admissions of some of the averments in the petition, and further pleaded that he had given to plaintiff as gifts money and property amounting to $100,000. Plaintiff replied with a general denial of the new matter set up in the answer. Defendant filed in this court an additional abstract of the record, which, taken in connection with plaintiff's abstract, presents very fully the facts of the cause.

The cause was tried to the court, who rendered a decree unsatisfactory to plaintiff and within four days thereafter he filed a motion for a new trial, which, on February 3, 1919, was overruled, and said cause was duly appealed to this court March 29, 1919. The facts will be further noted in the opinion following.

A. E. L. Gardner, of Clayton, and W. N. Brady, of Chicago, Ill., for appellant. Abbott, Fauntleroy, Cullen & Edwards, of St. Louis, for respondent.

Opinion.

MOZLEY, C. (after stating the facts as above).

1. The trial court rendered an opinion which is preserved in the record which we set out in full:

This suit by son against father, between whom most friendly and intimate personal and business relations existed from before the time when the son became of age in 1900 until the rupture in 1915. The severance was progressive, as evidenced by correspondence from the early part of the year, becoming more hostile and bitter on the part of the son and more argumentative and critical on the part of the father until "finis" was written early in January 1916. Then this suit for an accounting, filed April 14, 1917, including among claims of indebtedness a count for alleged slander. Objections on account of misjoinder were waived.

In the evidence there is much expression of sentiment which would appeal to the feelings rather than to the judgment. The written argument on one side stresses such appeal, and at places is abusive, and upon matters outside the record; and so far as it is such must be disregarded by the court. Otherwise the argument is full and specific. On the other side the proprieties are carefully observed and the argument confined to the issues, summarizing and submitting conclusions without going much into details.

The purpose of the parties, understood between them, was that defendant would assist the plaintiff to start in business, giving him properties and money to work with from time to time to the extent ultimately of $100,000, and advising and assisting as to the management and control of the business and properties. In this way properties to the value of . about $50,000 to $58,000 were given to plaintiff, and he operated in several enterprises. Plaintiff would seek the advice and assistance of defendant, and defendant would volunteer aid and advice to plaintiff. After giving a business or manufacturing plant to plaintiff, or placing him in charge of it, with a promise to give it or an interest in it to him, defendant would discover a new and supposedly better enterprise which he would advise plaintiff to take instead of the former, and he would install plaintiff in the new, relieving him of the old. From time to time defendant would also borrow moneys given by him to plaintiff or earned by plaintiff, and would give or lend plaintiff moneys, so that there was a running account of many items between them, without settlement or offer to settle, and with much uncertainty in the minds of both as to how the account stood, and also as to whether certain properties belonged to plaintiff or to defendant. After this had run on for some 10 years or more to the breaking point in 1915, it appeared to plaintiff and his friends that much that defendant had given had been taken away from him, and this was expressed in the saying, "The judge (meaning defendant) giveth and the judge taketh away." Such is the basis of some of the claims of plaintiff in this suit.

Such mutual trust and confidence existed between the parties that they made no effort to keep track of the account between them, or to define their relations to the different properties. The plaintiff was afflicted with an attack of meningitis in the latter part of 1914, from the effects of which his recollection of these matters has been impaired. And the defendant's mind was so engrossed with other business matters of his own that he has not kept in memory these matters of business with his son. So the court is asked to determine what the parties cannot remember and agree upon themselves, from what they do remember and testify to in connection with the other evidence.

Exhibit A.

In stating the account, plaintiff has set out as debts the items for which he has issued checks to defendant or to others for account of defendant, as he offers evidence to prove, with such credits as he from investigation supposed defendant was entitled to. After production of checks issued by defendant, plaintiff has withdrawn the credits in his first statement which are not shown by any such check. Defendant insists on the credits originally stated, and claims items of credit or indebtedness shown by other checks covering a longer period. As to some of the checks given for large items, there is no recollection by the parties or any witness as to what they were given for. The checks may have been for money loaned or in payment of indebtedness. The important items in dispute will be specifically mentioned.

The E. H. L. Items.

The so-called Insull note, probably for $10,000, was turned over by Mrs. Ella H. Laughlin, mother of plaintiff, to him for the defendant. Plaintiff converted into cash for $9,708.33, and turned this over to defendant. In return defendant was to transfer to Mrs. Laughlin 100 shares of stock at the par value of $10,000 in the Northern Hotel Company, and until he did so he was to pay the amount of dividends on that amount of stock. He failed to deliver the stock, but paid amounts equal to the dividends, for a time at $200, and later at $250, per quarter year. These payments were made by defendant by his checks to plaintiff, and by plaintiff at or about the same times by his checks to Mrs. Laughlin for the same amounts. When plaintiff went away in 1914, and at other times, the defendant dealt with Mrs. Laughlin by correspondence, or through other agency, and has adjusted the matter with her, to some extent, at least, partly before and partly since this suit was brought.

The plaintiff acted as an intermediary between defendant and Mrs. Laughlin, who were estranged from each other, and with both of whom he was on friendly terms. They were the real parties to the transactions. The principal item of September 11, 1305, $9,708.33, should be eliminated, because it was an indebtedness to Mrs. Laughlin. The items of interest paid in lieu of dividends could also be eliminated if they were the same on both sides of the account, but they are so only in part, and the evidence does not in all cases show what payments by defendant were on this account.

The items of September 9 and 22, 1905, for $5,000 each, and the item of credit November 19, $9,854.17, are claimed to be connected with the Insull note transaction. The evidence fails to show this, or to show what these items were for. The two $5,000 items are proved by checks, different from the check for $9,708.39. The item of $9,854.17 is not proven by check or otherwise, and should not be allowed defendant.

The Notes Returned.

The first two items of $3,000 and $5,000 were for checks given for loans on the notes of same dates, returned with the letter of February 8, 1915, to be destroyed. This matter is old and uncertain; the notes appear to have been satisfied in some way. The items should not be allowed.

The Dam or Water Power Items.

These belong properly in the separate account with reference to the dam under exhibit B, paragraph 5. But, since the title to that property was taken, by defendant, the items may be allowed here as payable by defendant, and taken into account under said paragraph 5. They amount to $1,443.43.

The Farm items.

These items were for improvements and expenses upon plaintiff's farm. To a considerable extent, the improvements were made by defendant, or at the direction of defendant for his own benefit, to provide a hunting lodge and "playground" for himself and friends. To some extent they were made by plaintiff for his own benefit. Plaintiff paid items to the amount of $568.84 by his own checks, and at about the same time caused...