Moskovitz v. Reynolds

• Decision Date: 05 March 1923
• Docket Number: No. 14602.,14602.
• Parties: MOSKOVITZ v. REYNOLDS.
• Court: Missouri Court of Appeals

248 S.W. 618

MOSKOVITZ v. REYNOLDS.

No. 14602.

Kansas City Court of Appeals. Missouri.

March 5, 1923.

Appeal from Circuit Court, Jackson County; Samuel A. Dew, Judge.

"Not to be officially published."

Action by Anna Moskovitz against Thomas H. Reynolds. Judgment for defendant, and plaintiff appeals. Affirmed.

Bruce Barnett, of Kansas City, for appellant.

Lathrop, Morrow, Fox & Moore, of Kansas City, for respondent.

TRIMBLE, P. J.

A demurrer to plaintiff's petition was sustained, whereupon she appealed.

The petition alleged that on October 2, 1919, the White House Beverage Company, a corporation, executed to plaintiff its note for $5,000 for a loan; that the company, on and prior to November 2, 1919, owned certain personal property worth over $30,000, and carried thereon insurance amounting to $25,000; that the property was destroyed by fire on said last-named date while the policies were in force, whereby a demand and chose in action arose in favor of plaintiff against the insurance companies; that on November 10, 1919, said White House Beverage Company executed to plaintiff in writing an assignment of said insurance to secure the payment of said promissory note; that thereafter plaintiff agreed to waive and surrender her rights under the assignment on condition that every creditor of the White House Beverage Company would agree in writing that all the policies of insurance should be assigned to the defendant Reynolds as trustee for all the creditors of the White House Beverage Company, including the plaintiff, and that said trustee should distribute the proceeds of said insurance among said creditorsy including plaintiff, in proportion to their respective demands ; that the creditors never entered into any agreement thus required, and the conditions of her agreement to release were never met, and plaintiff never released her said assignment of said policies.

The petition then alleged that, notwithstanding said condition was never met, the defendant, as a pretended trustee for the said creditors and for the said White House Beverage Company, collected and received from the insurance companies the sum of $17,500 on said insurance. Wherefore the petition prayed that—

"Of the moneys received by defendant as aforesaid from said insurance companies the sum of $5,000, together with interest thereon at the rate of 6 per cent. per annum from the 2d day of October, 1919, be declared to be the property and money of this plaintiff, and to be held by defendant as trustee for the benefit of this plaintiff, and that plaintiff have judgment against defendant for such amount accordingly."

The alleged assignment in writing was not attached to or filed with the petition, nor was a copy thereof filed.

It might seem from the prayer of the petition that the action was in equity, or wherein equitable relief is sought. If so, it states no cause of action in equity, since it nowhere is alleged therein that plaintiff...