Nelson v. Betts

• Decision Date: 09 March 1886
• Citation: 21 Mo.App. 219
• Parties: ELIZA A. NELSON, Appellant, v. C. F. BETTS ET AL., Respondents.
• Court: Missouri Court of Appeals

21 Mo.App. 219

ELIZA A. NELSON, Appellant,

v.C. F. BETTS ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Mar. 9, 1886.

APPEAL from the St. Louis Circuit Court. W H. HORNER, Judge.

Reversed and remanded.

S. B. GORDON, for the appellant: The cause should have been submitted to a jury. Const. Mo., chap. 2, sect. 28; Rev. Stats., sects. 3600, 3602. “The action is properly brought under the statute and the practice of this state.” Rev. Stats., sect. 3511; Rutherford v. Williams, 42 Mo. 18; Alexander v. Relfe, 74 Mo. 495 to 521; Cadwallader v. West, 48 Mo. 494; Davis v. Luster, 64 Mo. 45; McClure v. Lewis, 72 Mo. 324-5; Dailey v. Jessup, 72 Mo. 145; Massey v. Young, 73 Mo. 270.

T. J. ROWE, for the respondents. If a jury is not demanded, and no exception is taken to the action of the court in trying the case without a jury, this court will presume that a jury trial was waived. The State v. Larger, 45 Mo. 510; Henry v. Beers, 48 Mo. 366. In equity cases it is better for the court to try the whole case than to submit issues of fact to the jury. Looker v. Davis, 47 Mo. 140; Hickey v. Drake, 47 Mo. 369; Burt v. Rynex, 48 Mo. 309. The court is not bound to submit a question of fact to the jury. Lockwood v. Linsford, 56 Mo. 68. The verdict of a jury is not conclusive on the court in an equity case. Page v. Dixon, 59 Mo. 43. An entry that the parties appeared and submitted the case for trial to the court is a sufficient entry to show a waiver of a jury. Bruner v. Marcum, 50 Mo. 405; Tower v. Moore, 52 Mo. 118. Where parties comply with the terms of an agreement that could not have been enforced against them, they can not repudiate it and recover back the money paid upon it merely because it could not have been enforced ( Mueller v. Wiebracht, 47 Mo. 468; Claflin v. McDonough, 33 Mo. 412), or if paid under a mistake of the law. Mutual Savings Institution v. Enslin, 46 Mo. 200; Wolfe v. Marshal, 52 Mo. 167. Usurious interest paid upon a note can not be recovered back and applied as credits upon the note. Kirkpatrick v. Smith, 55 Mo. 389.

THOMPSON, J., delivered the opinion of the court.

The petition is in the form of a bill in equity embracing six paragraphs. The answer was a general denial. There was a trial before the court as in cases in equity, at the end of which the plaintiff stated to the court that a witness who had been subpœnaed for the plaintiff had been unable to attend by reason of sickness; that her testimony would fully corroborate that of the plaintiff in certain particulars, and asked that the further hearing of the case be continued until this witness could attend, which would probably be in a few days. The plaintiff, also, testified that the testimony of the two defendants had been a great surprise to her. The court, as the bill of exceptions recites, “refused said application on the ground that the plaintiff could not recover in the present form of action and pleading on any proofs, for the reason above stated, to wit, that the action was not equitable, as brought, but was a legal action for damages, and should have been brought in the form of a legal action; to which ruling and action of the court the plaintiff then and there excepted.”

The bill of exceptions then goes on to recite as follows: “The hearing of the proofs was then closed, and no other evidence was offered. December 5, 1884, the plaintiff requested the court to assign a time for argument of the case, which the court declined to do, on the ground as then stated that the court regarded the case as already submitted at the close of the hearing of testimony, and that plaintiff could not recover in the present form of action, as before stated by the court; but the court gave permission to the plaintiff to file affidavit and motion for setting aside the submission and receiving further evidence.”

The plaintiff thereafter filed an affidavit, by her attorney, to the effect that the testimony of the two defendants directly contradicted that of the plaintiff and was wholly unexpected by the plaintiff and her attorney and was a surprise to them; that the absent witness, already alluded to, whose affidavit was attached, had been subpœnaed, but was too ill to attend at the trial; that, as her testimony was merely corroborative of that of the plaintiff, which neither the plaintiff nor her attorney believed, or had reason to believe, would be contradicted, the plaintiff reluctantly consented to go to trial without her presence; that this witness was now sufficiently recovered to attend and would be able to attend on the further hearing of the case. The affidavit of the absent witness was also subjoined, stating the facts to which she would testify if allowed so to do, and those facts were simply corroborative of the facts testified to by the plaintiff. The bill of exceptions does not recite any disposition of this motion, but it recites as follows: “On February 16, 1885, the court decided and adjudged that said action could not be maintained in the then present form of the pleadings, the petition presenting a cause in equity when in fact it was a legal cause of action, and the petition should have so presented it, and for damages in the usual form of a legal action; and thereupon ordered that, for that reason solely, the action be dismissed by the court, unless the plaintiff should, within three days, voluntarily dismiss the same, and that in case of a voluntary dismissal, the same to be without prejudice to plaintiff's rights.” To this ruling the plaintiff excepted.

Subsequently, on March 30, 1885, the plaintiff having declined voluntarily to dismiss her action according to the permission above given, the court entered an order dismissing the same.

It is too plain for argument that the court committed no error in refusing to allow the case to be re-opened in order to hear corroborative evidence, after it had been heard and submitted by the parties. The whole matter addressed itself to the discretion of the court, and the facts disclosed do not show that the discretion was abused.

Among the grounds assigned in support of the motion for a new trial were, that the court refused and neglected to have the issues of fact tried by a jury, and erred in trying the issues of fact. With reference to this it may be said that the whole theory of the suit was that it was a suit in equity; the record nowhere shows that a jury was requested by the plaintiff, or that any objection was made to the court trying the issues of fact without a jury. But besides this, this objection is not only untenable, but absurd, from the fact, shown by the above recital, that the court never tried the case at all. The case was in the form of a suit in equity praying for equitable relief; and the court, being of opinion that the only substantial relief which could be granted would be in the form of damages as in an action at law, took the view that the action would have to be dismissed and tried in the form of an action at law. In this view we think the court was in error.

The bill recites, and the testimony establishes, a case of the most shameful oppression and extortion. The plaintiff was a married woman, having in her care a sick child, and her husband was prosecuting against her a suit for a divorce. She was in destitute circumstances, and applied to the defendant, C. F. Betts, for a loan of money upon the security of a mortgage upon her furniture. He went to her house, took an inventory of her furniture, and agreed to lend her twenty-five dollars upon the security of a mortgage on the whole at the rate of ten per cent. per month. He gave her some sort of a paper to sign, which had not been filled out, and she signed it in ignorance of its contents, and supposing that it would be filled out to effectuate the understanding which she had with the defendant, C. F. Betts. The defendant, or some one else, afterward filled this instrument out, and being a notary public, the defendant, C. F. Betts, afterwards annexed an acknowledgment to it. The instrument, as thus filled out, purports to be a mortgage in favor of the defendant, R. H. Betts, made by the plaintiff upon her furniture to secure a certain promissory note of hers, of even date with the mortgage, not for the sum of twenty-five dollars, but for the sum of $37.50, payable thirty days after date. The mortgage contained a clause stipulating that the furniture should remain in the hands of the mortgagor until default, and contained other clauses which seem to be usual in chattel mortgages. A month later, when the plaintiff went to pay the first installment of monthly interest and have the loan renewed, she found that, instead of $2.50, which would be ten per cent. upon twenty-five dollars, she was required to pay $3.70. They told her that the additional charges were for drawing up the mortgagee, recording it, and going out to her house, and that she must pay interest at the rate of ten per cent. a month on the whole; that is to say, she must pay $3.75; but they were gracious enough to throw off the extra five cents and take $3.70. She paid interest at this rate monthly for several months; then, being in need of more money, she borrowed of a Mrs. Kelly fifteen dollars more, and, with the consent of the defendant, stored the goods with Mrs. Kelly while she made a visit to Kansas City. On returning, she found herself unable to keep up the payment of this usury, and the defendant thereupon notified her that he would take possession of the goods.

About this time the defendant Brandon appears opportunely upon the scene. He was a dealer in second hand furniture, and had received a postal card from some one, he does not know whom--whether from the defendant or from the plaintiff--telling him to go and see the furniture. That was about a month before he finally got the furniture. He learned at the same time that there was a mortgage on it. A month later he purchased the furniture of the plaintiff, according to his own testimony,...