Linderman v. Carmin

• Court: Missouri Court of Appeals
• Writing for the Court: Cox
• Citation: Linderman v. Carmin, 127 S.W. 124, 142 Mo. App. 519 (Mo. App. 1910)
• Decision Date: 12 April 1910
• Parties: LINDERMAN et al. v. CARMIN.

127 S.W. 124

142 Mo. App. 519

LINDERMAN et al. v. CARMIN.

Springfield Court of Appeals. Missouri.

April 12, 1910.

1. APPEAL AND ERROR (§ 1001) — VERDICT — CONCLUSIVENESS.

While an appellate court may determine what is substantial testimony, it cannot weigh the evidence or set aside a verdict which is supported by substantial testimony, or where the facts admit of different inferences by reasonable men.

2. APPEAL AND ERROR (§ 996) — VERDICT — CONCLUSIVENESS.

Respondent is entitled to every reasonable inference which may be drawn from the testimony in support of the verdict for him.

3. WORDS AND PHRASES — "ADVANCE."

The word "advance," as used in a contract, ordinarily means money furnished with an expectation that it shall be returned, though it may not necessarily have that meaning; Abbott's Law Dictionary defining it as "To furnish value before it becomes due or in aid of an enterprise from which a return is expected."

4. APPEAL AND ERROR (§ 204) — OBJECTIONS BELOW — NECESSITY — ADMISSION OF EVIDENCE.

Where, on the issue whether an advance of money was a loan or a gift, defendant allowed, without objection, one of plaintiff's witnesses to testify to her conclusion that the money was an "advance," defendant cannot urge on appeal that his demurrer to the evidence should have been sustained, because the witness should have given the language of the conversation between the parties.

5. EVIDENCE (§ 313) — DECLARATIONS AGAINST INTEREST.

Declarations against a party's interest are presumed to be true, but such presumption is not conclusive.

6. TRIAL (§ 194) — PROVINCE OF JURY — WEIGHING EVIDENCE — DECLARATIONS AGAINST INTEREST.

Declarations against a party's interest not being conclusive, the court cannot instruct how much weight the jury should give such acts or declarations, as the jury must weigh the testimony, though it is uncontradicted and comes entirely from one party.

7. TRIAL (§ 234) — INSTRUCTIONS — WEIGHING EVIDENCE — PRESUMPTIONS.

Where a permissible presumption is one of fact, the court cannot instruct that it is raised by law, but should instruct that it is for them to decide under the evidence whether they will raise the presumption.

8. EXECUTORS AND ADMINISTRATORS (§ 451) — CLAIMS AGAINST ESTATE — ACTIONS — SUFFICIENCY OF EVIDENCE.

In an action against an administrator to recover money claimed to have been loaned defendant's intestate by his father-in-law to pay his expenses to another state to secure his wife's body and to pay her funeral expenses, whether it was understood that intestate should repay the money held a jury question.

Gray, J., dissenting.

Appeal from Circuit Court, Greene County; Alfred Page, Judge.

Action by H. P. Linderman and others against Charles L. Carmin, administrator. From a judgment for plaintiffs, defendant appeals. Affirmed.

Patterson & Patterson, for appellant. A. F. Drake and Hamlin & Seawell, for respondents.

COX, J.

This lawsuit originated in the probate court of Greene county, in 1908. The plaintiffs are the parents of Vernie Carmin, who was the wife of L. L. Carmin, deceased. The defendant is the administrator of the estate of said L. L. Carmin. The demand presented in the probate court was originally for the sum of $939, made up of five items, to wit: "$220 for money loaned L. L. Carmin to defray traveling expenses to California; $100 to defray funeral expenses of his wife; $129 to defray undertaker's expenses for the burial of the wife of L. L. Carmin; $200 for money had and received; and $300 for money had and received." In the probate court the plaintiffs prevailed and were allowed the claim in full. The defendant appealed to the circuit court, and on trial before a jury, on June 28, 1909, the plaintiffs again obtained a judgment for $439, but subsequently entered a remittitur of $129, leaving the judgment stand for $310. The cause is now here on appeal by the defendant. On the trial in the circuit court, an instruction was given to the jury that plaintiffs were not entitled to recover on the items of $200 and $300 for money had and received, and as the remittitur was entered for the $129 sued for as additional funeral expenses, the only items before us for review are the $220 item for money advanced for traveling expenses to California, and $100 loaned to defray funeral expenses.

The facts of the case are as follows: The deceased, L. L. Carmin, married the daughter of the plaintiffs in 1899, and they afterward moved to Kansas City, and the old folks gave them a restaurant business. They continued in the restaurant business for about a year, when the father of the wife purchased the restaurant, and gave her $500 in cash therefor. After this, the parties had no permanent home, but lived a part of the time with the plaintiffs at Sheffield. The daughter, Vernie, left her husband in 1906, and was last heard from at Sulphur Springs in September, 1906, from which place she wrote a card to her folks, stating she would write again in a few days. The next heard of her was in November, 1907, when her parents saw in a newspaper that she had been killed in California. Upon the receipt of this information, her father wired her husband to come to Kansas City. He immediately went to Kansas City, and there was a conversation between him and his father-in-law in regard to going to California after the remains. As a result of this conversation $220 was furnished to Carmin by Linderman, and he went to California. The next heard of him was a telegram asking for an additional $100. The amount was wired to him. When he returned, he brought for burial the body of his wife, and returned to his father-in-law $10, being the amount he had left unexpended. The father made arrangements for the burial, and paid, a few days after the burial, the expenses thereof, amounting to $129.

In order to determine the merits of this controversy, it is necessary for a further understanding of some other financial transactions between the parties. When the wife left the husband in 1906, he made some bitter complaint to her parents to the effect that she had taken his money and property (although it is practically conceded he had none), and he was threatening to put her picture in the newspapers and advertise for her. In order to save this threatened humiliation, a written contract was entered into between the parents and the husband by the terms of which they agreed to give, and did give, him a note for $1,000, due in a year, conditioned that the same should be null and void in case the husband and wife became reconciled within the period, and also the note was accepted by the husband as a full and complete settlement of all property disputes between him and his wife and her parents, and it was further agreed that all property and effects belonging to the wife should be turned over to the parents as security for the note and the husband relinquishing to his wife all of his right, title, interest, and claim in and to the property. The husband, after securing this note and contract, did not turn over to the parents any of the property in his possession, belonging to his wife. After his return from California, he represented to the old folks that if they would take up the old contract, and give him the $1,000, he would see to his wife's property in California, take care of it for them, and also ship her things to them as soon as he got to Springfield. Whereupon they executed to him three notes, one for $300, two for $250 each, and gave him $200 in cash, to take up the $1,000 note. They afterwards paid the $300 note, and two items of the account presented in the probate court were to recover the $200 cash, and the $300 paid in taking up the $300 note. After getting this money and notes, the son-in-law again absolutely failed to carry out his part of the contract. These items, however, were taken out by the court below and are not now before us.

The defendant offered in evidence a letter written by his mother-in-law, Mrs. Linderman, on January 11, 1908, from which we gather that the husband, in violation of the contract upon which he obtained the $200 in cash and three notes, made a claim to the property of his wife, and in this letter the mother-in-law says: "Sheffield, Mo. Jan. 11, 1908. Mr. L. L. Carmin — Dear Sir: Lu, we were surprised when we got the letter from Mr. Barnett. We trusted you to go out there and paid every cent for you, never thinking that you would swear to the statement you did. Now this compels us to make oath as to where Vernie got the money. Her pa payed her five hundred dollars for the restaurant, and the other she made by hard work in the restaurant. Her pa was with her when she went to the New England Bank here in K. C., the morning of the 27th of Sept. 1905, and had the money changed for the thousand dollar bill, which you made oath on the witness stand that she stole from you, and that it came from your mother's estate. Lu, how could you have sworn to such a falsehood. Vernie told me, and you did too, that she gave you the money to keep for her while in Hot Springs, she was going out somewhere, and you never would give it back to her, and, of course, as it never was yours, only in your trust, you should have given it back to her without her having to take it. Now as we are paying you the thousand dollars and you are out nothing, not even a meal while you was out in California, you never told the people out there that we was paying all of your expenses for you. We are so sorry that we ever had you go there, but we trusted you and thought you would do what was right, but found we was deceived by you. I don't know what kind of a turn this will make in California, but we are duty bound as parents to Vernie to protect her now in regards to how she came by the money. The poor child's life has been a failure. But I pray to the God above who knows all things that the poor little thing's spirit is now at rest, and now, Lu, I will close, hoping to hear from...