Lowe v. Montgomery

• Decision Date: 24 November 1928
• Docket Number: 26370
• Parties: Harley A. Lowe, Administrator of Estate of Isaac N. Lowe, Appellant, v. E. E. Montgomery and Bank of Blue Springs
• Court: Missouri Supreme Court

11 S.W.2d 41

321 Mo. 330

Harley A. Lowe, Administrator of Estate of Isaac N. Lowe, Appellant, v. E. E. Montgomery and Bank of Blue Springs

No. 26370

Supreme Court of Missouri

November 24, 1928

Appeal from Jackson Circuit Court; Hon. Nelson E. Johnson Judge.

Affirmed.

Burrus & Burrus and Gossett, Ellis, Dietrich & Tyler for appellant.

(1) The trial court should not have admitted the testimony concerning the general character and reputation of respondent Montgomery, plaintiff not having first introduced any evidence concerning that subject. The court evidently gave weight to this improperly admitted testimony, and because it was admitted that deference should not be accorded to the decision below, which ordinarily is done in cases wherein the proof raises doubts not solvable from the cold written record. The issue in this case was upon the particular wrongdoing of respondent, charged in the case, and whether or not he had general reputation for previous good character was immaterial. It was sufficiently presumed in absence of attack upon it by plaintiff, and the only effect upon the mind of the trial court which such evidence could have was prejudicial to plaintiff. Its admission destroys any possible deference to the decision of that court. Dudley v McCluer, 65 Mo. 241; Black v. Epstein, 221 Mo. 305; Kennedy v. Holladay, 25 Mo.App. 503. (2) The testimony of witnesses that I. N. Lowe, the decedent, repeatedly, both before and after the date of the alleged purchase of the twenty shares of bank stock, declared his continued ownership, subject to the pledge it had long been under, and his resolve not to sell it, was admissible in the nature of res gestae, including the state of his mind and understanding on the subject. This evidence should therefore be weightily considered by this court. Thompson v. Ish, 99 Mo. 160; Swope v. Ward, 185 Mo. 316. They are more than declarations, and are real acts. Bagnell v. Bank, 76 Mo.App. 121. (3) Whether this evidence of Lowe's declarations concerning the continued fact of his such ownership and resolve was admissible or not, the other evidence of undeniable physical facts and exercise of his ownership, the continuation of his paying interest on the debt for which he pledged it, the continuation of his record ownership and receipt of dividends, the queer character of the alleged personal debt to respondent, the wholly unnecessary secrecy of the alleged purchase transaction, the presumption of continued ownership once shown, the confidential relations of banker, tax-paying agent, near relationship, apparent trust reposed, comparative mental equipment and business experiences of the two men, all the features of the affair, with strongly preponderating force, support plaintiff's case against the unsatisfactory evidence of defendant by admission of declarations of the deceased man, given in remarkable feats of memories, deficient on concomitant facts easily remembered, or by partial witnesses under serious obligations or ties to respondent. On presumption of ownership continuing once admitted, see Zwisler v. Storts, 30 Mo.App. 163; Jansen v. Stone, 60 Mo.App. 402. On lack of weight and unreliability of admissions of a dead person, see Cornet v. Bertelsman, 61 Mo. 123; Kinney v. Murray, 170 Mo. 706; Collins v. Harrell, 219 Mo. 306. Fraud is protean in form and disclosed by "master facts" regardless of its secrecies. Stonemetz v. Head, 248 Mo. 263. (4) Respondent was not a competent witness. Death having removed the other principal actor, a wisely established and long prevailing rule of the law made the other incompetent to testify. The computation figures of the alleged personal indebtedness were not book entries or data kept in any ordinary course of business, yet the offer to prove by him, with this exhibit as a part of such offer, discredits the claim itself. As, also, does the studied effort as well in the refusal to disclose a consideration either in pleading or on inquiry of the witness Thomason when the claim of ownership first came to ordinary light on December 5, 1921, with the demand for registration of the alleged new stock ownership. Sec. 5410, R. S. 1919; Bagnell v. Bank, 76 Mo.App. 121.

Sebree, Jost & Sebree and Henry L. Jost for respondent E. E. Montgomery.

(1) Montgomery's possession of the certificate bearing an apparently regular assignment thereof to him as of April 6, 1921, raises the legal presumption that the assignment had been lawfully and honestly made as of that date, and that Montgomery thereby became the owner thereof. O'Neil v. Mining Co., 174 F. 533; 14 C. J. 671; Watson v. Woody Ptg. Co., 56 Mo.App. 151; Wilson v. Ry. Co., 108 Mo. 609. (2) By this indorsement of the certificate the title thereto passed to Montgomery of the date thereof, and this notwithstanding that Montgomery did not fully perform his contract with Lowe until November 17, 1921, when he made the final payment thereunder of $ 1000 to the Citizens Bank, and the title passed to Montgomery notwithstanding Lowe remained the owner of the certificate on the corporation's books and received the September, 1921, dividends. O'Neil v. Mining Co., 174 F. 530; 7 R. C. L. sec. 243, p. 265, also Sec. 239, p. 261; Keller v. Eureka Mfg. Co., 43 Mo.App. 88; Wilson v. Ry. Co., 108 Mo. 609; 6 Fletcher Cyc. on Corps. 6335; Raleigh Invest. Co. v. Bunker, 285 Mo. 440; 14 C. J. 663; Moore v. Bank of Commerce, 52 Mo. 377; Miller v. Ins. Co., 50 Mo. 55; Merchants Nat. Bank v. Richards, 6 Mo.App. 463; Mitchell v. Bank, 282 S.W. 732; Trust Co. v. Home Lmbr. Co., 118 Mo. 458. (3) The burden was on plaintiff executor to prove to the satisfaction of the court as the trier of the facts, that defendant "on learning of the death of said Isaac N. Lowe wrongfully and fraudulently . . . wrote or caused to be written on said stock . . . an indorsement of transfer purporting to transfer all of said shares of stock" to said Montgomery. 14 Am. & Eng. Ency. Law (2 Ed.) 190; Taylor v. Crockett, 123 Mo. 307; Page v. Dixon, 59 Mo. 43; Kilpatrick v. Wiley, 197 Mo. 159. (4) The finding and judgment of the trial court was for the right party in that plaintiff totally failed to establish his charge. (5) Evidence of Montgomery's general reputation for honesty and upright dealings was properly received, since the charge in plaintiff's petition made that an issue. Turner v. Overall, 172 Mo. 293; Ross v. Grand Pants Co., 170 Mo.App. 291; Summers v. Keller, 152 Mo.App. 637; Walker v. Ins. Co., 62 Mo.App. 220. But even if the evidence was improperly admitted this court will not reverse the trial court on that ruling. Renkel v. Lubke, 246 Mo. 392; Estes v. Fry, 94 Mo. 272. If the admission of the evidence be error then this court will ignore it as not affecting the final result. Gobel v. Kitchen, 217 Mo.App. 354; Goodrick v. Harrison, 130 Mo. 269; Reynolds v. Kroff, 144 Mo. 433.

OPINION

Lindsay, C.

Appellant, as administrator of the estate of Isaac N. Lowe, deceased, claims title to twenty shares of the capital stock of the Bank of Blue Springs, in Jackson County, which, at the time of the death of Isaac N. Lowe, stood in his name upon the books of said bank. The certificate for these shares was numbered 43.

Defendant E. E. Montgomery claims to be the owner of said shares by purchase from Isaac N. Lowe, and assignment and delivery of the certificate evidencing said shares. The petition, after alleging ownership of the shares by Isaac N. Lowe, alleged that a long time before his death he, for convenience and safety and for the purpose of borrowing small sums of money thereon, left the certificate with defendant Montgomery and the Citizens' State Bank of Blue Springs, of which defendant Montgomery was president; that defendant Montgomery had great influence over the mind of Isaac N. Lowe, by reason of the fact that they were near of kin, and defendant had formerly been a trustee of a portion of the estate of Isaac N. Lowe, left him by the will of his father, A. W. Lowe, and that Isaac N. Lowe's mind had been greatly impaired by the habitual use of intoxicating liquor and he trusted and relied implicitly upon defendant Montgomery; that while said stock remained in the custody of defendant Montgomery, Isaac N. Lowe would frequently from time to time borrow small sums of money on said stock from defendant Montgomery or the bank of which he was president, executing his note therefor and permitting said bank stock to stand as collateral security until the indebtedness was paid; that such transactions were carried on for a long time until shortly before the death of Isaac N. Lowe; that a short time before his death, Isaac N Lowe paid to defendant Montgomery all the indebtedness he owed him; that defendant Montgomery on learning of the death of Isaac N. Lowe, being in possession of said bank stock, wrongfully and fraudulently wrote an indorsement of transfer of said stock over the signature of Isaac N. Lowe thereon, purporting to transfer said stock to himself. The plaintiff asked cancellation of the transfer, and delivery of the stock to him, and, that, pending determination of the rights of the parties, the Bank of Blue Springs be restrained from transferring said shares on its books. Defendant Montgomery answering, alleged the purchase by him of said stock from Isaac N. Lowe for a valuable consideration, and the assignment and delivery of it to him. He also alleged demand made after the death of Isaac N. Lowe upon the Bank of Blue Springs that the stock be transferred to him upon the books, and refusal of the bank to make the transfer. He further alleged that the Bank of Blue Springs in refusing to make such transfer on its books, was acting at the instigation of plaintiff and was conspiring with the plaintiff to the injury and damage of defendant, whereby he...