McGrath v. O'Hare

• Decision Date: 06 May 1913
• Citation: 156 S.W. 826,175 Mo.App. 9
• Parties: MARGARET McGRATH, Appellant, v. DANIEL O'HARE, Executor, Respondent
• Court: Missouri Court of Appeals

156 S.W. 826

175 Mo.App. 9

MARGARET McGRATH, Appellant, v. DANIEL O'HARE, Executor, Respondent

Court of Appeals of Missouri, St. Louis

May 6, 1913

April 8, 1913, Submitted

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

Judgment affirmed.

Louis A. Steber for appellant.

(1) It does not destroy the continuity of an account, because a break occurs between the items. Its continuance and running character would turn on the intention of the parties. Vogel v. Kennedy, 127 Mo.App. 228. (2) The rule is when the account is a running and continuous one and it is fairly inferrable from the conduct of the parties while the account is accruing that the whole may be regarded as one account, then none of the items are barred unless all are. Moore v. Renick, 95 Mo.App. 202; Lancieri v Sprinkling Co., 95 Mo.App. 319; Chadwick v Chadwick, 115 Mo. 581; Ring v. Jamison, 66 Mo. 424; Id., 2 Mo.App. 584; Brylan v. St. Bt. Victory, 40 Mo. 244; Sideway v. Land & Live Stock Co., 187 Mo. 649; Gibson & Bro. v. Jenkins, 97 Mo.App. 27; Vogel v. Kennedy, 127 Mo.App. 229; Roberts v. Neale, 134 Mo.App. 612; Somerville v. Glass Co., 144 Mo.App. 463. (3) The trial court and referee found that the few later items were gifts. That finding has no evidence on which it is based. It is a mere guess. "The burden is cast upon the donee to show in the clearest and most satisfactory manner that the gift in question is one which is in every particular worthy of receiving the sanction of a court." Miller v. Simonds, 72 Mo. 669; Jones v. Falls, 101 Mo.App. 536.

William Hilkerbaumer for respondent.

(1) The finding of the referee has the effect of a special verdict, and as it was approved by the trial court, must not be disturbed unless there is no evidence to support it. Dempsey v. Schawacker, 140 Mo. 680; Feeney v. Chapman, 89 Mo.App. 371; Men's Society v. Fitzwilliams, 12 Mo.App. 445. (2) The plaintiff failed to prove that the money claimed to have been paid to decedent, whether wages or otherwise, was paid to her under such circumstances as to create an obligation to repay the same. Gerding v. Walter, 29 Mo. 426. There was a total failure of proof as to the item of $ 2.50, dated between December 1 and December 31, 1905. (3) Because of the relation of parent and child existing between them the presumption is that the payments by plaintiff of her wages to her mother and the support and clothing furnished by the latter to plaintiff, did not create the relation of debtor and creditor between them. Bircher v. Boemler, 204 Mo. 554; Fry v. Fry, 119 Mo.App. 476. (4) The last four items of the alleged account are shown by plaintiff's own pleadings and proof to be so disconnected with the earlier part as to destroy its continuity, and hence they do not draw with them the whole account, and all of the account relating to the payment of plaintiff's wages to her mother is barred by the five-year Statute of Limitation. Rev. Statutes 1909, sec. 1893; Chadwick v. Chadwick, 115 Mo. 581; Sidway v. Land Co., 187 Mo. 649; Loeffel v. Hoss, 11 Mo.App. 133; Chapman v. Hogg, 135 Mo.App. 654; Macke v. Davis, 61 Mo.App. 524; Vogel v. Kennedy, 127 Mo.App. 228. (5) The first of the four items dated in 1900 is also shown by the pleadings and proof to be entirely separate and distinct from the remaining three, and is clearly no part of a running account, and is therefore barred by the five-year statute. See citations under 4.

REYNOLDS, P. J. Nortoni and Allen, JJ., concur.

OPINION

REYNOLDS, P. J.

--The original petition in this cause was filed on the 17th of January, 1908, and demanded judgment on an account made up of many items, beginning November 18, 1893, aggregating $ 1500. Judgment was prayed in the original petition for this amount and interest, the latter placed at $ 1000, a total of $ 2500. On the 4th February, 1908, the death of the defendant was suggested and in October of that year the cause was revived against her executor, and on the 7th of May, 1909, an amended petition was filed in which it is alleged that beginning with November, 1893, and until the month of October, 1899, plaintiff had deposited, loaned and turned over to her mother all of her weekly wages each week, from which was to be deducted $ 3.60 a week for board and lodging, showing weekly balances and interest to January 16, 1908, amounting to a total of $ 2538.40. It is further alleged in the amended petition that between January 1, 1900, and January 16, 1908, on dates not specified with great particularity, plaintiff had advanced or loaned to her mother, or paid out on account of her mother, various small sums, $ 3.75 at one time, $ 4 at another time, $ 2.50 at another time, and $ 2.03 at another time, within the period last stated, and judgment is asked for these amounts and interest thereon from the dates of the payments. It is further in evidence, but not in the petition, that in 1899 plaintiff gave her mother ten dollars for a wrap.

The answer to the amended petition, denying every allegation, avers that whatever sums of money plaintiff paid to her mother, except the items after October 1, 1899, the last charge in the account for wages alleged to have been turned over to her mother, were voluntary contributions for the support and maintenance of her mother's family, of which plaintiff was a member, and in return for which plaintiff received board, lodging, clothing and expense money, and that the payment of the money and the furnishing of the board, lodging, clothing and expense money, was treated by the plaintiff and her mother as a discharge by them respectively of the reciprocal duties arising from the relation of parent and child, members of the same family, without regard to whether the one exceeded the other in value. The answer further pleads the Statute of Limitations as a bar.

The cause being at issue was referred to a referee with directions to try all the issues therein and report his decision to the court. The referee proceeded to hear the testimony in the cause, no witnesses being produced by defendant. At the conclusion of the hearing the referee submitted his report which in substance is as follows:

That plaintiff, then Miss Margaret Talty, now Mrs. Margaret McGrath, lived with her mother, Mrs. Bridget Talty, and worked for the St. Louis Paper Box Company for sometime before she became of age, which occurred in November, 1893 and thereafter until September 30, 1899, with the possible exception of two or three weeks. Plaintiff kept no account of her payments to her mother, so far as appears by the evidence in the case, nor did her mother. The evidence of plaintiff touching the payments by her to her mother and the items and dates of them, consisted in the production of the pay rolls and books of her employer. These showed that her earnings varied from $ 4.50 to $ 11.65, on one occasion reaching as high as twelve dollars, but the greater part of the time varying between six dollars and ten dollars. These wages were handed to the plaintiff in a sealed envelope which as a rule she opened when received, counted the contents and then on reaching home handed them over to her mother. This was a general custom but was not always followed. If there was loose change in the envelope plaintiff occasionally took it out. At other times she would make small purchases for herself out of the money before handing the envelope to her mother, but she took home the greater portion of her wages to her mother, who on some occasions said in the presence of others that she would save the money for plaintiff. She also said to some of those present that she deducted three dollars a week for plaintiff's board, giving her ten cents a day for car fare and also would give her spending money. "How much of the wages received by plaintiff," reports the referee, "she thus turned over to her mother the evidence does not disclose, nor how much the mother expended out of such wages for clothing for plaintiff, or how much she gave her for spending money, does not appear. Beginning with October, 1899, plaintiff paid her mother three dollars a week for board and kept the remainder of her earnings for herself. During the entire time the plaintiff turned over either her entire wages or a part of her wages to her mother, she lived with her mother, who had no other income but the plaintiff's wages, and who supplied the food, lodging and clothing and did her washing and ironing. Plaintiff was married in 1900, and for a short time thereafter lived with her husband in the house belonging to and next door to her mother. In May, 1900, plai...