Ostmann v. Ostmann

• Decision Date: 13 November 1944
• Docket Number: No. 38980.,38980.
• Citation: 183 S.W.2d 133
• Parties: OSTMANN et al. v. OSTMANN.
• Court: Missouri Supreme Court

183 S.W.2d 133

OSTMANN et al. v. OSTMANN.

No. 38980.

Supreme Court of Missouri, Division No. 2.

November 13, 1944.

Appeal from Circuit Court, St. Charles County; Theodore Bruere, Judge.

Action by Edwin Ostmann and others, minors, by Lydia Ostmann, their next friend, and Lydia Ostmann, against Louis Ostmann to quiet title. Verdict and judgment for plaintiffs, and defendant appeals.

Affirmed.

B. H. Dyer, of St. Charles, for appellant.

Niedner & Niedner and Robert V. Niedner, all of St. Charles, for respondents.

BARRETT, Commissioner.

In June 1928 Carl Ostmann owned twenty-two and nine-tenths acres of land in St. Charles County. It was valued at approximately $900. About half the land was marshy and unsuitable for cultivation and in 1930 it was determined that fish ponds or fish lakes should be constructed on the marshy eleven acres. Carl's brother, Louis, the respondent, was a road contractor and a mover of dirt. He owned drag lines, a tractor and equipment suitable for moving dirt. In 1930 Louis began excavating the ponds. He worked about two months that year. Again in 1931 he worked about three months and the ponds were enlarged and a levee was built. The ponds consisted of two long ditches and a shorter ditch at either end of the tract, a sort of a square with one embankment forming a levee. During the years 1930, 1931, 1932 and 1933, until Carl died, Louis and Carl collected fees from people for the privilege of fishing in the ponds. About once a week they divided the proceeds, two-thirds to Louis and one-third to Carl. They claimed to their brother, Fritz, that they made $800 out of the fishing the first year.

Carl died in December 1933. 1934 was a drought year and there was no fishing. In 1935 there was a flood and fishing in the ponds was resumed. Louis began collecting for the fishing that year and Lydia Ostmann, Carl's widow, began questioning Louis' right to do so. In subsequent years Carl's children sometimes collected for the fishing and sometimes Louis or his children collected for the fishing but there was no accounting of the proceeds among them.

The brother, Fritz, testified that Carl had told him that his (Carl's) agreement with Louis was: "He said, Louis was supposed to get part out of the fishing and part out of the hay for putting that road up there that they could go across on, and he would get a per cent out of the fishing. * * * He said, `He had the agreement they would do this work and get their shares out of the fishing. He wasn't going to pay out no cash, he wasn't out no cash money, that Louis was to go in there and do the work and was going to get a share out of the fishing.'" Fritz testified that they were to divide the fishing proceeds fifty-fifty and the hay one-third to each of the three brothers, Fritz and Carl being partners in the business of farming.

In 1935 Lydia Ostmann and her children, as Carl's heirs, instituted this suit to quiet the title to the 22.9 acres, alleging that Louis claimed some interest in the land. Upon the trial of the cause and in substantiation of his claim of an interest in the land Louis produced a four page penciled contract. The contract had been written by Louis and purported to be signed by Louis and Carl. Louis says there had been a previous written contract but they had torn it up and written a new one as they agreed on terms and as the work and conditions changed. Louis says that part of the contract was written in 1931 and part of it in 1932. The first part embodied the old contract. It was signed, Louis says, out at the fish ponds on the hood of his car. He claimed to have made a carbon duplicate which he gave to Carl but it was never discovered.

The contract described the land. It recited:

"That the party of the first part agrees to have the party of the second part dig ditches and ponds to be used for fish ponds one levee to be used for road to crop land, payment to be made as follows no cash, but the party of the second part to have the rights as the party of the first part to collect from persons fishing, and one half of hay or any other crops harvested from the above mentioned land located outside of ponds.

"It is further agreed by the party of the first on this second day of April 1931 that the party of the second part has spent Seventeen Hundred Eight One Dollars and Fifty Cents cash in labor, gas, oil, cables and repairs not allowing anything for wear on dragline.

"The party of the first gives the party of the second part his heirs two thirds interest in fish pond made by the party of the second part, the Seventeen Hundred Eighty One Dollars and Fifty Cents being twice the purchase price of the above described land. No person not being one of the above mentioned family will be permitted to collect for fishing."

The contract contained a provision for the first party's paying $1781.50 for which he was "again (to) have full title to the above mentioned land." The first party was to pay all taxes and maintain a bridge. There was also a provision that any hay raised on the land was to be divided into thirds.

Louis testified that Carl signed the contract and that the signature to the contract, "Carl Ostmann," was Carl's signature. Lydia Ostmann testified that the signature on the contract, "Carl Ostmann," was not Carl's signature and that he had not signed the contract.

The court gave the jury but a single instruction. No other instruction was offered or given. It is as follows:

"The Court instructs the jury that the only matter for your consideration in this case is whether or not one Carl Ostmann, now deceased, and Louis Ostmann wrote their respective signatures on the Defendant's Exhibit one (1), introduced in evidence, and if you believe that the defendant has proven by a preponderance of the evidence, and by that is meant the greater weight of the evidence, that Carl Ostmann signed said Exhibit, then your verdict will be in the following form, to-wit:

"We, the jury find that Carl Ostmann executed and signed defendant's Exhibit one (1).

"But if you believe that defendant has not proven by a preponderance of the evidence and by that is meant the greater weight of the evidence that Carl Ostmann did sign said Exhibit, then your verdict will be in the following form, to-wit:

"We, the jury find that Carl Ostmann did not execute and sign defendant's Exhibit one (1)."

The jury signed and returned a verdict in the latter form and the court entered judgment for Lydia Ostmann and her children and thereby found that Louis had no interest in the land. Louis now contends that the court erred in giving the instruction. He does not object to the theory of the law embodied in the instruction nor to the manner in which the factual issue was submitted. Neither does he contend that the instruction erroneously misplaces or shifts the burden of proof. His contention is that the instruction unduly reiterates and overemphasizes the burden of proof, leaving the impression that the court was apprehensive that the jury might not be strict enough in its requirements...