Missouri Wesleyan College v. Shulte

• Decision Date: 16 August 1940
• Docket Number: 36529
• Parties: Missouri Wesleyan College, a Corporation, v. W. P. Shulte, Executor of the Estate of Adda Bruntmyer, Appellant
• Court: Missouri Supreme Court

142 S.W.2d 644

346 Mo. 628

Missouri Wesleyan College, a Corporation, v. W. P. Shulte, Executor of the Estate of Adda Bruntmyer, Appellant

No. 36529

Supreme Court of Missouri

August 16, 1940

Appeal from Holt Circuit Court; Hon. R. B. Bridgeman Judge.

Affirmed.

J H. Pettijohn, John R. Eiser and R. H. Musser for appellant.

(1) Since the pledge in this case was to the trustees of Missouri Wesleyan College and the board of education of the M. E Church, the Missouri Wesleyan College was not the proper party plaintiff. Secs. 698, 699, 700, 701, R. S. 1929; Slaughter v. Davenport, 151 Mo. 31; Trumberg v. Haderlein, 167 Mo.App. 720; Lemon v. Wheeler, 96 Mo.App. 656; Culver v. Smith, 82 Mo.App. 395; Peters v. McDonough, 37 S.W.2d 531; Canada v. Daniel, 157 S.W. 1034, 175 Mo.App. 64; 1 Houts on Pleading, sec. 9, pp. 17-18. (2) If under the assignments and transfer made by the Missouri Wesleyan College to Baker University any legal or equitable title to this Bruntmyer pledge was or could be conveyed, then in fact the trustees of Baker University could have been a party plaintiff with the board of education of the M. E. Church or the board of trustees of the Missouri Wesleyan College could have sued for their benefit, but in any event, the real parties in interest, two of them should have been parties, and they only could be claimants against this estate. 1 Houts on Pleading, p. 5; Helm v. Albers, 244 Mo. 38, 147 S.W. 1065; Tennent v. Ins. Co., 133 Mo.App. 45, 112 S.W. 754. (3) The conditions of the pledge were not met, and the consideration thereof having failed, before maturity, the finding should be for the defendant. And, if the recitals of the pledge are such as to import consideration, this having failed, the Missouri Wesleyan College cannot recover. Thatcher v. Lewis, 76 S.W.2d 677; 11 C. J. 372; 2 Perry on Trusts (7 Ed.); Jones v. Jones, 223 Mo. 450; Hadley v. Forsee, 203 Mo. 418; Jones v. Patterson, 271 Mo. 9; Garner v. Home Bank & Trust Co., 107 S.W.2d 224; Rutherford College v. Payne, 184 S.E. 827, 209 N.C. 792; Orphans Home Assn. v. Sharp, 6 Mo.App. 150; Trustees of La Grange College v. Parker, 198 Mo.App. 381; 60 C. J., 961-963-965. (4) Appellant's final contention is that the court erred in refusing to consider Mrs. Bruntmyer's letter of her revocation of the pledge. 60 C. J., p. 954, sec. 8; Hull v. Pearson, 56 N.Y.S. 518, 36 A.D. 588; 60 C. J. 958.

C. H. Harrison and Petree & Wright for respondent.

(1) The note being on its face payable to "The Trustees of the Missouri Wesleyan College," a corporation, the claim was properly filed and prosecuted in the name of the corporation. Finding of facts thereon is conclusive on defendant. Knotts v. Sentinel Life Ins. Co., 67 S.W.2d 798; 14A C. J. 519; Keith, etc., Coal Co. v. Bingham, 97 Mo. 196; North St. Louis Christian Church v. McGowan, 62 Mo. 279. (a) Even though we may admit the equitable title to the note was transferred to Baker University, the claim may be prosecuted by the college. 8 C. J. 829; Nicolay v. Fritschle, 40 Mo. 67; Barry County v. McGlothlin, 19 Mo. 307; Rogers v. Gosnell, 51 Mo. 466; Snider v. Adams Express Co., 77 Mo. 523; Security Natl. Bank v. Fields, 186 S.W. 815; Swift & Co. v. Wabash Ry. Co., 149 Mo.App. 526; Guerney v. Moore, 131 Mo. 650, 32 S.W. 1132; 5 C. J. 979; Labeaume v. Sweeney, 17 Mo. 153. (2) Appellant claims that the note is without consideration, and intermingled with the claim of no consideration, is an intimation that the conditions of the note were not met. Plaintiff claims (a) that the only condition of the subscription, to-wit, that the sum of $ 450,000 should be subscribed by the time named in the note, was established by the proof provided in the note, and there was no evidence to the contrary. 60 C. J. 963, 966. (b) That the note imports a consideration. Sec. 2958, R. S. 1929; Scottish Rite Temple Assn. v. Lucksinger, 101 S.W.2d 511; Caples v. Branham, 20 Mo. 244; Trustees of Christian University v. Hoffman, 95 Mo.App. 488, 69 S.W. 474; Hardin College v. Johnson, 221 Mo.App. 285, 3 S.W.2d 264. (c) That the findings of fact of the trial court, requested by defendant, are sustained by the evidence, and are binding on the appellate court. Knotts v. Sentinel Life Ins. Co., 67 S.W.2d 798; Cantley v. American Surety Co., 38 S.W.2d 739. (d) That there were other considerations for the note established by the evidence, to-wit: Subscriptions made by others in the same campaign; the college was operated for years, and large amounts of money were expended in the operation of the college, on the strength of this and other like subscriptions; relying on this and other like subscriptions, the college incurred liabilities. Scottish Rite Temple Assn. v. Lucksinger, 101 S.W.2d 511; Trustees of Baker University v. Cleveland, 86 F.2d 14; School District v. Sheidley, 138 Mo. 672, 40 S.W. 656; Koch v. Lay, 38 Mo. 147; Hardin College v. Johnson, 221 Mo.App. 285, 3 S.W.2d 264. (3) Plaintiff claims that consideration did not fail because the college ceased to operate a school. Evidence and admissions of defendant show that the college still retains its charter and that it still has outstanding obligations. Goode v. St. Louis, 113 Mo. 257; Koch v. Lay, 38 Mo. 147; Old Colony Trust Co. v. Third Universalist Society, 91 A. L. R. 837; Academy of Visitation v. Clemens, 50 Mo. 167; Goode v. McPherson, 51 Mo. 126; Mott v. Morris, 249 Mo. 137, 155 S.W. 434; Glaze v. Allen, 213 S.W. 784; 11 C. J. 307; Buckley v. Monch, 187 S.W. 31; Hadley v. Forsee, 203 Mo. 418, 101 S.W. 59; Catron v. Scarritt Collegiate Institute, 264 Mo. 713, 175 S.W. 571; Starr v. Morginside College, 186 Iowa 790, 173 N.W. 231, 63 A. L. R. 881. (4) The court did not err in refusing to give effect to the attempted revocation of the pledge by Mrs. Bruntmyer. 60 C. J. 968, sec. 39; 25 R. C. L. 1408, sec. 14; Koch v. Lay, 38 Mo. 147; Workman v. Campbell, 46 Mo. 305; Corrigan v. Detsch, 61 Mo. 290; School District v. Sheidley, 138 Mo. 672, 40 S.W. 656; McClanahan v. Payne, 86 Mo.App. 284; Christian University v. Hoffman, 95 Mo.App. 488, 69 S.W. 474; Brokaw v. McElroy, 162 Iowa 288, 143 N.W. 1087, 50 L. R. A. (N. S.) 835.

Bradley, C. Hyde and Dalton, CC., concur.

OPINION

BRADLEY

This cause was commenced in the Probate Court of Holt County, and is based on a claim of Missouri Wesleyan College, in the principal sum of $ 10,000, against the estate of Adda Bruntmyer, deceased. Claimant appealed to the circuit court from the finding and judgment of the probate court, and in the circuit court, at trial without a jury, the claim was allowed in full, plus interest, and from the judgment entered the executor of the estate appealed. Hereinafter we refer to the claimant as plaintiff and to the executor as defendant.

Plaintiff has filed motion to dismiss the appeal on the ground that defendant's abstract does not comply with our Rule 13 in that (as claimed) it does not "set forth a copy of so much of the record as is necessary to be consulted in the disposition of the assigned errors." We do not think that the abstract offends sufficiently against Rule 13 to justify dismissal of the appeal, hence the motion is overruled.

Defendant makes eleven separate assignments, but all are, in effect, embraced in the assignment on the refusal of a demurrer to the evidence at the close of the case.

Missouri Wesleyan College, prior to its closing (May 5, 1930), was located at Cameron, Missouri, Clinton County, and offered and gave a four years college course from 1897 to 1926, and a two years college course from 1926 until it closed. A campaign, ending midnight May 9, 1918, was put on to raise money for the college, and during that campaign, and on April 15, 1918, Fred and Adda Bruntmyer (husband and wife) signed the instrument upon which this cause is based, which instrument is as follows:

"Missouri Wesleyan College

Board of Education

$ 435,000

15,000

Estate Pledge

April 15, 1918

Missouri Conference Educational-Jubilee Campaign."

"In consideration of my interest in Christian education and in consideration of others subscribing, for the purpose of providing onehalf million productive endowment, and paying all indebtedness in behalf of Missouri Wesleyan College, located at Cameron, Missouri, and for the general work of the Board of Education of the Methodist Episcopal Church, as herein specified, I hereby subscribe and will pay to the trustees of Missouri Wesleyan College of Cameron, Missouri, ten thousand dollars ($ 10,000.00), which sum shall become due one day after the decease of the last survivor and shall be payable out of their estate, the same being subscribed under the following further terms and conditions, namely:

"1. This subscription shall become binding and a bona fide obligation when the total asking of $ 450,000, including all amounts subscribed, since April 1, 1916, shall have been secured by midnight of May 9, 1918. Official findings of executive committee (of the college) shall be final.

"2. Each of the above institutions in interest shall share pro rata as cash is received from subscriptions secured on a basis of 95.7% and 4.3%.

"Fred Bruntmyer

"Mrs. Adda Bruntmyer."

Fred Bruntmyer died December 26, 1933; Adda died July 23, 1934, and demand was filed in the probate court November 8, 1934.

Defendant relies on three propositions: (1) That plaintiff cannot maintain this cause; (2) that there was a total failure of consideration; and (3) that Adda Bruntmyer, prior to her death, revoked the subscription. The first proposition is based on three separate contentions: (1) That the subscrpition instrument is made payable to the trustees, and for that reason the college, under its corporate name, cannot prosecute the cause; (2) that prior to commencing the cause, plaintiff was merged...