Nall v. Brennan

• Decision Date: 03 February 1930
• Docket Number: 27627
• Citation: 23 S.W.2d 1053,324 Mo. 565
• Parties: Alice A. Nall, Executrix of George C. Nall, Appellant, v. W. J. Brennan and J. M. Brennan
• Court: Missouri Supreme Court

23 S.W.2d 1053

324 Mo. 565

Alice A. Nall, Executrix of George C. Nall, Appellant, v. W. J. Brennan and J. M. Brennan

No. 27627

Supreme Court of Missouri

February 3, 1930

Appeal from Circuit Court of City of St. Jouis; Hon. Franklin Miller, Judge.

Affirmed.

Earl M. Pirkey for appellant.

(1) In attempting to prove up the amount of the loan from the deceased to the defendants the plaintiff offered in evidence check stubs in the handwriting of the deceased. The amount of these stubs, with the amount of the canceled checks and note totaled the amount shown by the oral evidence to be the amount of the loan. These check stubs were admissible in corroboration and the court erred in excluding them. (2) The petition alleged that the defendants received from George C Nall as a loan the sum of $ 12,500. The answer was a general denial and not a confession and avoidance. Defendants were therefore precluded from showing that they received the money but for a different purpose. Moreover this evidence does not tend to disprove the claim made by plaintiff. (a) The testimony as to the formation of the corporations, their different transactions and the development of the oil lands was not evidence tending to disprove the loan claimed by the plaintiff and was without the issues made by the pleadings. State ex rel. Central Coal & Coke Co. v. Ellison, 270 Mo. 653; Pyrtle v. Shoe Co., 291 S.W. 172; Moore v. Dawson, 277 S.W. 58; Vance v Morrish, 279 S.W. 173. (b) The testimony had no probative value as to whether the loan was made or not made or what the money which Nall turned over to the Brennans' was for. Its sole effect and tendency of the evidence was to mislead the jury into believing that if Nall received any money from the sale of stock he could not recover the amount loaned. Defendants had a worthless oil lease owned by their Cadillac Company. They borrowed $ 12,500 from Nall and organized the Nall Company, then the Cadillac Company swallowed up the Nall Company, and the stock was increased to $ 150,000 and Nall was given $ 30,000 and each of the defendants $ 30,000 each. This testimony did not show or tend to show or corroborate any claim that the $ 12,500 was an investment. Still farther away is the evidence that some of Nall's private stock was sold. This misled the jury; it distracted their attention from the issue in the case, and made them believe that if Nall received any money from the private sale of his stock he could not recover his loan. Throughout the record is a vast amount of evidence of this character, much of it touching on the drilling of wells and petty transactions on the oil lease in Kentucky. (3) The irrelevant and immaterial evidence admitted thoroughly convinced the jury that the question of whether the deceased was interested in the oil business was decisive of the case, and that if he was interested or took any part in the transaction of the oil company plaintiff could not recover. In order to correct this situation as far as could be done the plaintiff offered Instruction 6. This instruction was essential to correct the belief which the court had impressed on the jury to the effect that plaintiff could not recover if the deceased Nall was interested in either of the oil companies. It was prejudicial error to refuse it. (4) Instruction 3 given at the request of the defendants was error. The petition alleged that the defendants received from George C. Nall as a loan the sum of $ 12,500. The answer was a general denial and not a confession and avoidance, and this instruction therefore was improper, because it was broader than the issues made by the pleadings. Had the answer admitted the receipt of the money, but said that it was for the purchase of the lease, the issue would have been different. But that was not done and the instruction therefore was broader than the pleadings and it was prejudicial error to give it. State ex rel. Central Coal & Coke Co. v. Ellison, 270 Mo. 653. The instruction also did not confine the jury to the one issue in the case but sent them on a roving commission to draw on their imagination as to what the money was for. The instruction was incorrect and prejudicial for this reason also.

Taylor, Chasnoff & Willson for respondents.

(1) There were no errors in the admission of evidence. Madison v. Ry. Co., 60 Mo.App. 599; Hellmuth v. Benoist, 144 Mo.App. 695; Enright v. Schaden, 242 S.W. 89; Cushing v. Powell, 130 Mo.App. 576; Moore v. Dawson, 277 S.W. 58. (2) The memoranda on the check stubs were properly excluded. 10 R. C. L. 1187; 52 L. R. A. 703; Gregory v. Jones, 101 Mo.App. 270; Wells v. Hays, 93 S.C. 168; Reddelien v. Atkinson, 46 Pa. S.Ct. 159; Mackenzie v. Barrett, 148 Ill.App. 414. (3) Appellant's Instruction 6 was properly refused. Champion Co. v. Shilkee, 237 S.W. 109; Curtis v. Bales, 241 S.W. 83; Keppler v. Wells, 238 S.W. 425; Hely v. Hinerman, 260 S.W. 471. (4) Defendant's Instruction 3 was correct. Jennings v. Cherry, 257 S.W. 438. (5) Defendant's Instruction 4 was correct. Moore v. Dawson, 277 S.W. 58.

Ellison, C. Lindsay and Seddon, CC., concur.

OPINION

ELLISON

This action was brought by the plaintiff as executrix of the will of George C. Nall, deceased, to recover money alleged to have been lent by the testator to the defendants, W. J. Brennan and J. W. Brennan. The verdict and judgment being for the defendants, the plaintiff has appealed.

The petition alleges that between November 12, 1919, and May, 1920, the defendants received from the said George C. Nall, as a loan, the sum of $ 12,500, which amount they promised and agreed to repay to him within ninety days; that payment was demanded after the same became due, and default made. It further recites the due appointment and qualification of the plaintiff executrix. The answer was a general denial. The respondents' statement of the evidence is a fair one and is adopted with slight changes made in it.

The main witness for the plaintiff was the attorney for the Nall estate, John E. Turner. He testified that in the spring of 1919 he had been interested in the oil business in the shallow oil fields of Kentucky, and had discussed these fields with his friend, the testator, George C. Nall. In April or May, 1919, Nall brought to his office W. J. Brennan, then a stranger to Turner. Nall seemed to be under the impression that Turner had had experience in the oil business and wanted to talk things over. They inquired of Turner about the situation in the shallow oil fields of Kentucky and asked his ideas about the probabilities of making money there. It was mentioned that W. J. Brennan wanted to borrow from Nall some money for himself and his son J. M. Brennan, for use in the purchase of the Meador oil lease in Kentucky, but that W. J. Brennan did not know how much they would need. Turner said Nall and Brennan discussed the Meador lease, the purchase price of which, according to Turner, was $ 13,500, payable $ 1,000 down and the balance in monthly payments of $ 2500 each. Turner testified W. J. Brennan said they could repay the money within ninety days after the last payment, and that Nall agreed that he would let them have the money.

Turner further testified that when the last $ 2500 payment on the lease was to be made, in April, 1920, W. J. Brennan and Nall again came to his office and Brennan asked Nall for a check for $ 2500, but Nall didn't have the money. Brennan said he would take Nall down to the National Bank of Commerce and arrange for Nall to borrow the money. They went to the bank and borrowed the money. Nall and Brennan both signed the note. On this occasion Nall stated to Brennan he had now let him have a total of $ 12,500.

Turner further testified that in the first conversation in Turner's office Brennan and Nall said they did not want to be bothered with the details of managing the property, and that those matters would be turned over to and handled by J. M. Brennan. Turner said that, not being asked to do so, he prepared no contract and made no memorandum of the matter and refrained from suggesting to Nall there should be some written evidence touching the proposed loan. He further said that in the same conversation it was understood Nall was to invest $ 1000 in the Meador lease, and when the lease was purchased and paid for it was to belong to the Brennans.

Turner further declared that after Nall's death he, as the attorney for the executrix, called upon J. M. Brennan and inquired about payment of the loan, nobody else being present. Brennan did not deny owing the money and promised to repay it. Alfred Nall, a son of the testator, gave testimony to the same effect, concerning a conversation he had with J. M. Brennan on another occasion.

Turner identified, and appellant introduced in evidence, three bank checks given by George C. Nall, all payable to and indorsed by J. M. Brennan; one being for $ 1,000, dated November 12, 1919; another for $ 2500, dated December 11, 1919, and the third for $ 2500, dated March 17, 1920, and also a note given in renewal of the note made by Nall and Brennan to the National Bank of Commerce in April, 1920. The appellant also offered to introduce a book of check stubs, containing check stub No. 1613, on which was written the following: "No. 1613, Jan. 13, 1920, to Brennan oil, 2500.00;" also another book of check stubs, containing check stub No. 1631, on which the following was written: "No. 1631, 2-15 1920, to J. M. Brennan Oil Co., 1500.00." Objections being made to these two exhibits, they were excluded by the court, the plaintiff duly excepting. All these exhibits taken together showed payments running along at approximately monthly intervals, aggregating $ 12,500.

The respondents were introduced as witnesses and an attempt was made to show by both of them that...