Niehaus v. Madden, 37623.

• Citation: 155 S.W.2d 141
• Decision Date: 30 October 1941
• Docket Number: No. 37623.,37623.
• Parties: THERESA V. NIEHAUS, Plaintiff-Appellant, v. THOMAS R. MADDEN, Administrator of the Estate of HENRIETTA A.S. BORCK, and EDWARD STOFFREGEN, Defendants-Respondents, and CHARLES FREDERICK STEIDE, and the unknown consort, heirs, devisees, donees, alienees or immediate, mesne or remote, voluntary or involuntary, grantees of said HENRIETTA A. STOFFREGEN-BORCK, also known as DR. HENRIETTA A.S. BORCK, Cross-Defendants.
• Court: Missouri Supreme Court

155 S.W.2d 141 THERESA V. NIEHAUS, Plaintiff-Appellant,
v.
THOMAS R. MADDEN, Administrator of the Estate of HENRIETTA A.S. BORCK, and EDWARD STOFFREGEN, Defendants-Respondents, and CHARLES FREDERICK STEIDE, and the unknown consort, heirs, devisees, donees, alienees or immediate, mesne or remote, voluntary or involuntary, grantees of said HENRIETTA A. STOFFREGEN-BORCK, also known as DR. HENRIETTA A.S. BORCK, Cross-Defendants. No. 37623. Supreme Court of Missouri. Division One, October 30, 1941.

[155 S.W.2d 142]

Appeal from Circuit Court of City of St. Louis. — Hon. Harry F. Russell, Judge.

AFFIRMED.

Charles A. Lich and James T. Blair, Jr., for appellant.

(1) The affirmative defenses pleaded in defendants' answers are without merit. (a) Laches is not a defense. Carlin v. Bacon, 16 S.W. (2d) 46; Dillman v. Davison, 239 S.W. 505. (b) The Statute of Limitations does not apply. Remmers v. Remmers, 239 S.W. 509. (c) The Statute of Frauds is inapplicable. Benjamin v. Cronan, 93 S.W. (2d) 975. (d) The defenses of laches, Statute of Limitations and Statute of Frauds cannot be considered because these defenses are not pleaded in answer of defendant Stoffregen, the real party in interest. Johnson v. Antry, 5 S.W. (2d) 405; Hecker v. Bleish, 3 S.W. (2d) 1008; Beebe v. Columbia Axle Co., 117 S.W. (2d) 624. (2) The court's holding that the proof did not sustain plaintiff's oral adoption is against the great weight of the evidence and contrary to law. (a) There is positive, direct, cogent and convincing evidence of the existence of a contract to adopt the plaintiff before she went into the Borck home. Remmers v. Remmers, 239 S.W. 509; Dillman v. Davison, 239 S.W. 505. (b) In negotiating the adoption contract Dr. Borck and his wife were joint adventurers, and the husband's acts are binding upon his wife as well as himself. Daily v. Scott, 74 S.W. (2d) 881; Hobart Lee Tie Co. v. Grodsky, 46 S.W. (2d) 859; Denny v. Guyton, 40 S.W. (2d) 562; Adair v. Terminal Railroad Co., 220 S.W. 920, 282 Mo. 130; 22 C.J. 396, 397. (c) Length of plaintiff's residence in the Borck home is immaterial. Rauch v. Metz, 212 S.W. 357; Dillman v. Davison, 239 S.W. 505; Remmers v. Remmers, 239 S.W. 509. (d) Evidence shows that the Borcks sent plaintiff away. (e) Unnecessary for plaintiff to assume the name of adoptive parents and to address them as mother and father. Craddock v. Jenkins, 223 S.W. 924; Signaigia v. Signaigia, 205 S.W. 23; Jenkins v. Gordon, 256 S.W. 136; Ahrens v. Matthews, 85 S.W. (2d) 377. (f) Negative evidence to the effect that Henrietta Borck had not told certain witnesses that she had adopted the plaintiff is improper and should have been excluded. Remmers v. Remmers, 239 S.W. 509; Pursifal v. Pursifal, 257 S.W. l.c. 118. (g) Failure to mention plaintiff in will is not competent evidence bearing upon the contract of adoption. Pursifal v. Pursifal, 257 S.W. 117; Remmers v. Remmers, 239 S.W. 509. (h) Analysis of type B cases in which adoption has been denied. Thornton v. Miller, 151 S.W. (2d) 1101; Stillman v. Austin, 148 S.W. (2d) 573; Keller v. Lewis County, 134 S.W. (2d) 48; Taylor v. Hamerick, 134 S.W. (2d) 52; Benz v. Cronin, 93 S.W. (2d) 975; Furman v. St. Louis Union Trust Co., 92 S.W. (2d) 726; Kidd v. St. Louis Union Trust Co., 74 S.W. (2d) 827; Lamb v. Feehan, 276 S.W. 71; Burnett v. Clark, 252 S.W. 625; Arfstrum v. Baker, 214 S.W. 859; Wales v. Holden, 209 Mo. 552; Grantham v. Gossett, 182 Mo. 351; McElvain v. McElvain, 171 Mo. 244. (3) The plaintiff was not mentioned in the will of Henrietta A.S. Borck, nor was she provided for therein, and hence was a pretermitted child. Sec. 526, R.S. 1939; Remmers v. Remmers, 239 S.W. 509; Wetherall v. Harris, 51 Mo. 63; State v. Allen, 247 S.W. 411; Pounds v. Dale, 48 Mo. 270; Thomas v. Black, 113 Mo. 66; Neal v. Davis, 99 Pac. 69; Palmeter v. Reid, 254 Pac. 359; Wadsworth v. Brigham, 259 Pac. 302; Bower v. Bower, 31 Pac. 59; Bowman v. Bowman, 49 Fed. 329. (4) Supreme Court must weigh evidence and make its own finding of fact. (a) Supreme Court should not defer to Chancellor's findings of fact where primary and most other evidence was not oral but submitted in shape of deposition. (b) Court having held plaintiff was provided for by will and was not pretermitted heir, question of oral adoption became moot, and therefore Supreme Court should not defer to findings of fact made by Chancellor on question which he considered moot. Wegemann Realty Co. v. St. Louis, 47 S.W. (2d) 770.

Igoe, Carroll, Keefe & McAfee and Detjen & Detjen for respondents.

(1) The rule of privilege was not applicable to the testimony of attorney Flanagan, and the trial court improperly excluded it. State v. Hedgepeth, 125 Mo. 14, 28 S.W. 160; Gebhart v. United Railways, 220 S.W. 677; Cummings v. Commonwealth, 298 S.W. 943; Debolt v. Blackburn, 328 Ill. 420; Champion v. McCarthy, 81 N.E. 88. (a) The appellate courts, where all of the evidence is to be reviewed, will consider errors against the respondent in determining whether the judgment should be sustained. St. Charles v. Denker, 275 Mo. 607, 205 S.W. 208; Higgins v. Higgins, 243 Mo. 164, 147 S.W. 962; City v. Goehring, 12 S.W. (2d) 761; Randle v. Railway, 64 Mo. 325; Crabtree v. Bankers, 128 S.W. (2d) 1089; Goodrick v. Harrison, 130 Mo. 263, 32 S.W. 661. (2) The trial court correctly held that appellant did not prove the making by Henrietta Borck of any oral contract of adoption, and its judgment should be affirmed. (a) Appellant concedes that the evidence does not establish an "adoption by estoppel." (b) In order to establish an oral contract of adoption and obtain specific performance thereof, proof of the making of the contract must be clear, cogent and convincing, and the terms and conditions of the contract must be clearly shown and cannot be left to inference. Taylor v. Hamrick, 134 S.W. (2d) 52; Grantham v. Gossett, 182 Mo. 651, 81 S.W. 895; Lamb v. Feehan, 276 S.W. 71; Barnett v. Clark, 252 S.W. 625; Furman v. St. Louis Union Trust Co., 338 Mo. 1177, 92 S.W. (2d) 726; Arfstrum v. Baker, 214 S.W. 859; Gipson v. Owens, 286 Mo. 33, 226 S.W. 856; Kidd v. St. Louis Union Trust Co., 335 Mo. 1029, 74 S.W. (2d) 827; Jenkins v. Gordon, 256 S.W. 156; Asbury v. Hicklin, 181 Mo. 658, 81 S.W. 390; Thornton v. Miller, 151 S.W. (2d) 1101; Benjamin v. Cronan, 338 Mo. 1177, 93 S.W. (2d) 975; Wales v. Holden, 209 Mo. 552, 108 S.W. 89. (c) Dr. Edward Borck's acts and conduct in bringing appellant to his home were not binding upon Henrietta Borck under either the theory of joint adventure or agency. Ratification to be relied upon must be pleaded and must be clearly proven. Denny v. Guyton, 327 Mo. 1030, 40 S.W. (2d) 562; 33 C.J., p. 841; 2 C.J., sec. 204, pp. 562-4; Badger v. Pugsley, 61 S.W. (2d) 425. (d) The conduct of the parties...