Peters v. McDonough

• Decision Date: 31 March 1931
• Docket Number: 27635
• Parties: Christine E. Peters, Josephine J. Webb and Laura MacIvor v. Nellie F. McDonough, Appellant
• Court: Missouri Supreme Court

37 S.W.2d 530

327 Mo. 487

Christine E. Peters, Josephine J. Webb and Laura MacIvor v. Nellie F. McDonough, Appellant

No. 27635

Supreme Court of Missouri

March 31, 1931

Appeal from Circuit Court of City of St. Louis; Hon. John W Calhoun, Judge.

Reversed.

Igoe Carroll, Higgs & Keefe for appellant.

(1) The evidence does not prove the case pleaded. (a) The allegation of the petition that "defendant did have and receive from one Mary A. Peters for and on account of plaintiffs the sum of $ 7,714.28," would not be supported by proof that defendant received $ 12,147 to which Mary A. Peters had no title or right, but which belonged to plaintiffs' father. Such a discrepancy between pleading and proof is fatal to the case. Collins v. Hutchings (Mo. App.), 194 S.W. 733; Nave v. Dieckman (Mo. App.), 208 S.W. 273. (b) That the petition comprehends no such claim as disclosed by this evidence was urged upon the court below in numerous objections to the admission of evidence, and particularly by defendant's objection made early in the trial to the admission of testimony concerning the bonds, which objection the court erroneously overruled. (2) Even if the money and bonds involved were in fact owned by Louis F. Peters at the time of his death, plaintiffs, as heirs, could not recover in this suit, because: (a) They could not maintain an action at law to recover a three-sevenths part of assets of his estate which have never been administered or distributed. Pullis v. Pullis, 178 Mo. 683; Toler v. Judd, 262 Mo 344. (b) The equitable title of heirs, while sufficient to justify a voluntary distribution among them of personal property of which they are in possession and against which there are no debts, is no basis for an action at law to recover undistributed assets. Richardson v. Cole, 160 Mo. 372; McCracken v. McCaslen, 50 Mo.App. 85; Bell v. Farmers & Traders Bank, 188 Mo.App. 383, 174 S.W. 196. (c) And an action for that purpose, to which less than all the heirs were parties and with no showing in the pleadings that the estate was free of debts, would be an anomaly, whether at law or in equity. Weber v. Strobel (Mo. Sup.), 225 S.W. 925. (3) If plaintiffs had a right to recover money as heirs it would avail them nothing under the petition in this suit, because: (a) The cause of action pleaded is joint, one based upon an obligation to plaintiffs jointly. But the evidence, even if accepted as they would have it, does not show any joint right to a three-sevenths part, or any part, of the money involved. Clark v. Zane, 165 Mo.App. 505; Slaughter v. Davenport, 151 Mo. 26. (b) Any joint right to recover assets of the estate of Louis F. Peters would be vested in all the heirs, and an action thereon could not be maintained except by all. Weber v. Strobel (Mo. Sup.), 225 S.W. 925; Frumberg v. Haderlin, 167 Mo.App. 717. (c) Since the evidence does not show an obligation to plaintiffs jointly, while the petition declares upon such an obligation, there is a failure of proof of the case pleaded -- not a mere misjoinder -- and the defendant's demurrer to the evidence should have been sustained. Yore v. Yore, 240 Mo. 451; Clark v. Zane, 165 Mo.App. 505; Wintergerst v. Court of Honor, 185 Mo.App. 373; Welsh v. Fraternal Aid Union, 214 Mo.App. 443, 253 S.W. 187; Park v. Park (Mo. Sup.), 259 S.W. 417; Slaughter v. Davenport, 151 Mo. 26. (4) As a matter of fact (and of law) the evidence is insufficient to support a finding that the money and bonds received by defendant from her mother were owned by Louis F. Peters. (a) There is no competent direct evidence of such ownership, nor do the facts and circumstances shown justify an inference to that effect. Forrester v. Moore, 77 Mo. 651; Burdette v. May, 100 Mo. 13. (b) To the contrary, the presumption is that Mary A. Peters was the owner of the money and negotiable bonds of which she had exclusive possession. Hartwell v. Parks, 240 Mo. 537; Lipscomb v. Talbot, 243 Mo. 1; Fitzgerald v. Parker, 85 Mo. 81. (c) And the facts that this assault on defendant's title to the money was made more than fifteen years after receipt of it and that the parties who could have supplied primary evidence of the facts are dead fortify the presumption in defendant's favor. These factors are considered by this court, although this is a law and not an equity case, because the question involved is as to the propriety of drawing inferences to supply necessary facts. Burdette v. May, 100 Mo. 13; Rosenwald v. Middlebrook, 188 Mo. 94; Kirk v. Middlebrook, 201 Mo. 289. (d) The fact that defendant compromised a claim asserted by her mother to a part of the $ 10,000 theretofore given defendant, shows no admission of fact and has no probative value. 2 Wigmore on Evidence, sec. 1061, pp. 522, 524; Smith v. Shell, 82 Mo. 220.

Albert E. Hausman for respondents.

(1) The reasons urged for a reversal are purely technical, and Sec. 1513, R. S. 1919, applies. Schultz v. Schultz, 316 Mo. 739. (2) The cause was tried in the lower court upon the theory that the cause of action was several, and that plaintiffs were tenants in common; and that the petition set forth several causes of action, and defendant having adopted that theory in the trial court cannot adopt a different theory in this court. In re McMenamy's Guardian, 307 Mo. 98; Ostrander v. Messmer, 315 Mo. 1165; Bank of Moberly v. Neals, 295 S.W. 73. Appellant, by filing her motion to dismiss the cause as to Mathilda O. Holcomb upon the ground that the cause of action in so far as Mathilda O. Holcomb was concerned, was barred by limitation, because Mathilda O. Holcomb had been divorced more than five years prior to the bringing of the suit, distinctly adopted the theory that the causes of action set forth were several, for had a joint cause been pleaded, the bar would have extended to all parties or to none. Keeton v. Keeton, 20 Mo. 530; Walker v. Bacon, 32 Mo. 144; Ridon v. Frion, 7 N.C. 577; Cameron v. Hicks, 141 N.C. 21. (3) The petition complies with Sec. 1220, R. S. 1919, in that it sets out the names of the parties to the action and a plain and concise statement of the facts constituting the cause of action, together with the relief demnded. Appellant never contended that the petition should be made more definite and certain and filed no motion to that effect. In the absence of such motion, the petition was amply sufficient, and the judgment should not be disturbed. Donahue v. Bragg, 49 Mo.App. 273; Warfield v. Hume, 91 Mo.App. 541. (4) Appellant cannot now urge the point that plaintiff pleaded one cause of action and proved another, for the reason that no such objection was urged against any evidence admitted. Ford v. Wabash, 318 Mo. 723; Davenport v. Casey, 222 S.W. 791. (5) This court will not allow a defendant to lie in ambush until he appears in this court before disclosing his real position in the case. The appellant pleaded, and tried this case, upon the theory that the petition set forth a several cause in favor of each of the three plaintiffs who were several distributees of the estate of Louis F. Peters.

OPINION

Atwood, J.

This case comes to the writer on reassignment after second hearing. It is an appeal by defendant from a judgment against her for $ 9,784.24 in an action for money had and received. The case was tried on the second count of plaintiffs' amended petition, which is as follows:

"For their second cause of action plaintiffs state that Christine E. Peters is now and at all times herein mentioned was the wife of Christian Peters; that Laura MacIvor is now and at all times herein mentioned was the wife of Walter I. MacIvor; that Josephine J. Webb is now and at all times herein mentioned was the wife of Walter Webb; that Mathilda O. Holcomb was until the 8th day of February, 1915, the wife of John R. Holcomb.

"That from January, 1908, and thereafter, to December 24, 1911, the defendant did have and receive from one Mary A. Peters for and on account of plaintiffs the sum of $ 7,714.28, which sum she has held since for the use and benefit of plaintiffs.

"That on the 22nd day of July, 1924, the plaintiffs did demand payment of said sum, but defendant has failed and refused to pay said sum or any part thereof and still fails and refuses to pay said sum; wherefore plaintiffs pray judgment against defendant for the sum of $ 7,714.28 with interest thereon at the rate of 6 per cent per annum since 1911 together with their costs."

Before the issues were finally made defendant filed motion to dismiss the cause as to plaintiff Mathilda O. Holcomb, which motion was sustained. Defendant went to trial upon her amended answer which consisted of a general denial, coupled with pleas of the five-year and ten-year Statutes of Limitation barring maintenance of the action. The reply was a general denial.

The evidence showed that Louis F. Peters died June 22, 1909 leaving his widow, Mary A. Peters, and his daughters, Christine E. Peters, Josephine J. Webb, Laura MacIvor, Mathilda O. Holcomb, Goldie Schott and Nellie F. Peters, as his sole surviving heirs at law, all of whom as far as this record shows are still living, but only five of whom were ever made parties to this action. His estate was administered in the Probate Court of the City of St. Louis, and the administrator was discharged on December 22, 1911, without leaving any unpaid allowed demands against the estate. For a year or more prior to his death Louis F. Peters was physically and mentally incapacitated and was cared for by his wife Mary A. Peters and their daughter Nellie F. Peters (now Nellie F. McDonough, defendant-appellant herein), who lived with him in the family home, the other five daughters having married and moved away. On January 24, 1908, Mary A. Peters deposited in her own name with the Mississippi Valley Trust...