McMahon v. Welsh

• Citation: 112 S.W. 43,132 Mo.App. 593
• Parties: MARY W. McMAHON, Respondent, v. JAMES B. WELSH, Appellant
• Decision Date: 29 June 1908
• Court: Kansas Court of Appeals

112 S.W. 43

132 Mo.App. 593

MARY W. McMAHON, Respondent, v. JAMES B. WELSH, Appellant

Court of Appeals of Missouri, Kansas City

June 29, 1908

Appeal from Jackson Circuit Court.--Hon. James H. Slover, Judge.

Judgment affirmed.

Johnson & Lucas for appellant.

(1) The peremptory instruction given by the court of its own motion (in such language as to render useless the discussion of the instructions asked by appellant) was erroneous. R. S. 1899 sec. 4340; Glaves v. Wood, 87 Mo.App. 97. (2) This instruction forced the jury to believe respondent's testimony on all other issues, in spite of its contradictions. When there is any substantial testimony on issues, they should be submitted to the jury. Mowry v Norman, 204 Mo. 191. (3) The instructions asked by appellant should have been given, because they properly presented the law and the issues in the case.

Frederick J. Chase for respondent.

(1) Where there is no evidence to sustain an issue, it is the province of the trial court to take that issue from the jury by proper instructions; and where there is very slight evidence, but not sufficient to permit a verdict to stand the court should take the same action. Bank v. Hainline, 67 Mo.App. 483; Bank v. Bennett, 114 Mo.App. 691; Alexander v. McNally, 112 Mo.App. 563. (2) Where there is no conflict in the evidence on an issue and the credibility of witnesses not involved the issue becomes a question of law to be passed on by the court. Bank v. Bennett, 114 Mo.App. 691. (3) Where defendant introduces in evidence an endorsed note to prove an issue, he must prove the endorsement. Bank v. Pennington, 42 Mo.App. 355; Mayer v. Old, 51 Mo.App. 214. (4) To constitute an estoppel the party must have been induced to act by reason of the matters and things which he pleads as an estoppel. Grabill v. Bearden, 62 Mo.App. 459; Konta v. Stock Exchange, 189 Mo. 39; Baker v. McInturff, 49 Mo.App. 509; Blodgett v. Perry, 97 Mo. 273; State ex rel. v. Sitlington, 51 Mo.App. 259. (5) Under section 4340, Revised Statutes 1899, the husband can reduce his wife's personal property to his possession only with her express written assent, and her endorsement of a promissory note is not such assent. Case v. Espenschied, 169 Mo. 215; Moeckel v. Heim, 46 Mo.App. 340; McGuire v. Allen, 108 Mo. 403; Hurt v. Cook, 151 Mo. 416.

OPINION

BROADDUS, P. J.

The respondent's statement of the case is fair and complete with the exception as to the testimony of defendant. It is as follows:

"This suit was brought for the conversion of a promissory note of the face value of $ 1,700, secured by a deed of trust on Kansas City real estate, dated March 9, 1902, and made by Zelina Florence Ahern and John E. Ahern in favor of Mary W. McMahon, plaintiff. This note was given to renew a former loan between the same parties, made in the year 1897, to this plaintiff from money received from her father's estate. After the extension of the note in suit in November, 1902, the plaintiff placed it with the deed of trust securing the same, in her trunk with her other valuable papers and kept the trunk securely locked.

"At this time plaintiff was living with her husband, John A. McMahon, and continued to live with him until January, 1904, when they were separated, and in May, 1907, she obtained from him a decree of divorce. Before they separated and shortly prior to November 29, 1903, plaintiff's husband, without her knowledge or consent took the note in suit from the plaintiff's trunk where she kept it under lock and key, and pledged the same to one George F. Winter to secure his individual loan. Plaintiff knew nothing about this transaction until about Christmas, 1903, while searching for some papers she discovered that the note was gone. She immediately accused her husband of taking the note, and he admitted that he had done so and lost the money he had raised on it in a bucket shop, and threatened plaintiff if she accused him "he would commit suicide and would not go alone." The evidence showed that he had frequently threatened the life of the plaintiff and her daughter, and that plaintiff had lived in terror of the man for many years, and that she was afraid to notify Mr. Winter in what manner the note had been taken from her.

"In about a month after plaintiff discovered the loss of the note she left her husband, and went to the home of her relative in Dundas, Canada, where she remained, except for part of one year when she was in Hartford, Conn., until the early part of 1907, at which time plaintiff came to Kansas City and instituted her suit for divorce and this suit for conversion.

"On April 28, 1904, while plaintiff was in Canada, the defendant, James B. Welsh, who was in the real estate, loan and insurance business in Kansas City, made a loan to plaintiff's husband, John A. McMahon, of $ 1,500 and took as collateral security the note in suit which was brought to him by Mr. McMahon. At that time there appeared to be on the back of the note certain interest credits and words "pay to Jno. A. McMahon or order, Mary W. McMahon, pay to Geo. F. Winter or order, Jno. A. McMahon. Without recourse Geo. F. Winter."

"On May 28th, one month after defendant received the note, the makers thereof paid with the consent of plaintiff, the interest on the note in suit of $ 51 to Crutcher & Welsh, the defendant's agents, and continued to pay to the defendant or his agents the interest on the note in suit up to May 27, 1906.

"On October 27, 1904, the defendant let McMahon have $ 200 more on his note and retained the note in suit as collateral security for $ 1,700. Before loaning this money the defendant, although well acquainted with the plaintiff and her husband, and well knowing that they were husband and wife, never communicated with her about the matter, nor did he go to see the makers of the note or Mr. Winter, who had previously held the same, but took the security because he thought it a safe loan on good property, and worth its face value. The defendant testified that he had never seen any of the letters prior to the time he paid out the last money which he loaned to plaintiff's husband; and that he knew nothing of plaintiff's claim until something like a year after he made the loan to plaintiff's husband.

"The plaintiff's evidence was that her signature was a forgery, though very like hers; that it was not on the note when she put her papers in her trunk, which she kept securely locked; that the words "Pay to Jno. A. McMahon or order" was plainly in the handwriting of her husband as were the words "Pay to Geo. F. Winter or order;" that she never gave her husband consent to have the note or take it and that she was "Mortally afraid of her husband."

"On March 1, 1907, the plaintiff, through her agent and attorney, demanded of the defendant the return of her note, and upon his refusing to do so brought this suit for conversion. The defense was that the note was duly endorsed and delivered to the defendant as collateral security for John A. McMahon's note; that for more than ten years plaintiff had permitted her husband to deal with the note as his own; that plaintiff had directed the makers to pay interest to defendant's agents and was thereby estopped to claim ownership in the note.

"A trial on these issues was had in the circuit court, the cause submitted to a jury and a verdict returned for $ 1,776.50, from which this appeal is taken."

At the close of the testimony the court of its own motion gave the following instruction:

"The jury are instructed that if they shall find, from the greater weight of the evidence with respect to its credibility, that the plaintiff herein made a loan to Zelina F. Ahern and John E. Ahern of $ 1,700 of her own money, and that the note sued for and introduced in evidence was given for said loan, and that the defendant was, on the first day of March, 1907, in...