Piggott v. Denton
| Decision Date | 11 January 1932 |
| Docket Number | 17339 |
| Citation | 46 S.W.2d 618 |
| Parties | PIGGOTT v. DENTON. |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court, Vernon County; Chas. A. Hendricks, Judge.
Action by Ida M. Piggott against Wesley Denton. Judgment for defendant, and plaintiff appeals.
Affirmed, and case ordered transferred to the Supreme Court.
C. A Calvird, of Clinton, and J. A. Silvers, of Butler, for appellant.
C. A Denton, D. C. Chastain, and De Armond & Maxey, all of Butler, and Hallett & Hallett, of Nevada, Mo., for respondent.
This is an appeal from a final judgment rendered against plaintiff upon her refusal to plead further after the sustaining of a demurrer to her petition.
The petition, which was filed on December 29th, 1930, is as follows:
"Plaintiff, Ida M. Piggott, states that heretofore defendant, Wesley Denton, was acting for and on behalf of plaintiff, as her agent, and adviser in loaning money belonging to plaintiff and investing plaintiff’s money in loans on real estate security, and was so acting as plaintiff’s agent and adviser, in connection with the particular investment herein set forth.
Plaintiff states that she had full confidence in the honesty, fidelity and business judgment of defendant and of his loyalty to her business interests in management of her financial affairs, and believed and relied upon defendant’s statements, representations and recommendations concerning her said financial affairs, and particularly so with reference to funds hereinafter mentioned.
Plaintiff further states that on about the ______ day of April, 1921, plaintiff intrusted to the defendant the sum of Six Thousand Dollars, to be invested by defendant for plaintiff in a promissory note for that sum, bearing seven per cent. interest payable annually, and falling due on the 1st day of April, 1928; said promissory note having been executed by one J. R. Linville and wife, Anna Linville and was secured by a trust deed on a tract of land located in Cass County, Missouri to-wit:
The South half of the South East Quarter and the North East quarter of the South East quarter, section twenty-three, Township forty-four, Range, thirty-three; containing one hundred twenty acres, more or less, which trust deed constituted and was a first lien on said real estate and was then, and now would be sufficient security to insure the repayment of the sum of money loaned as shown by the promissory note aforesaid.
Plaintiff states that said sum of money, so intrusted to defendant as aforesaid was in fact invested by defendant in the above mentioned promissory note and trust deed, for this plaintiff on about April 5th, 1921. That defendant retained the custody of said promissory note and trust deed as agent for plaintiff.
That thereafter, and while said promissory note and trust deed were in full force and effect, owned by plaintiff, but in the actual custody of and accessible to defendant, said defendant, in breach of his duty to plaintiff and in fraud of her rights relative thereto and without the knowledge or consent of plaintiff, on about February 23rd, 1923, caused, suffered and permitted said promissory note and trust deed securing the same, to be sold, assigned and delivered to the Rutland Savings Bank, a corporation located in the State of Vermont.
That thereafter, on about the _______ day of March, 1926, said note was paid to said Rutland Savings Bank and the deed of trust securing the same was duly released and satisfied of record by said bank, and said note and deed of trust became, was and is lost to this plaintiff.
Plaintiff states that said defendant at all times concealed from this plaintiff the fact that said promissory note had been sold, assigned and delivered as aforesaid but misled and deceived plaintiff in respect thereto, and the knowledge of such sale, assignment, payment and satisfaction of record thereof and the consequent loss to plaintiff as aforesaid, was not known to plaintiff until about the ______ day of _____, 1930, because of the false, misleading and deceptive statements and conduct of defendant relative thereto, and his fraudulent concealment of the facts mentioned herein.
Plaintiff states that after she became aware of the fact that said promissory note and trust deed securing the same had been lost to her by the sale and assignment as aforesaid, she demanded of defendant the payment of her said Six Thousand Dollars, with interest thereon, and payment thereof was refused by defendant and the whole sum remains past due and unpaid.
Wherefore, plaintiff asks judgment against defendant for the sum of Six Thousand Dollars, with interest thereon at the rate of Seven per cent. per annum from the ______ day of ______, 1923, and for costs herein."
The grounds of the demurrer were that the petition failed to state a cause of action and that it disclosed on its face that the alleged fraud was committed more than five years prior to the date of the filing of the petition and there was not sufficient statement of facts in the petition "to prevent the commencement of the Statute of Limitations on the 23rd day of February to extend the time of the running" of the five year statute of limitation (section 862, R. S. 1929).
An analysis of the petition shows that in the first paragraph thereof it is alleged that the defendant acted as plaintiff’s adviser in loaning her money and investing her money in loans on real estate security and was acting in this capacity "in connection with the particular investment herein set forth." There is no allegation anywhere in the petition that defendant was authorized to sell any of her securities. Taken as a whole there is only one inference to be drawn from the petition, that is, that he had no authority to sell any of her securities or reinvest her money except with her express consent. The second paragraph mentions that defendant managed plaintiff’s financial affairs, but there is no statement anywhere in the petition what financial affairs he managed except possibly, in paragraph one. The only specific financial affair mentioned in the petition was the investment of the $6,000.00 in the Linville note and mortgage as described in paragraph 3 of the petition.
The third paragraph of the petition alleges that plaintiff directed defendant to invest her money in the Linville note and mortgage and paragraph five alleges that he did so. The last mentioned paragraph also alleges that "defendant retained custody of said promissory note as trustee and agent for plaintiff." There is no allegation that in the management of plaintiff’s financial affairs the defendant retained the note but, at most, that because of his management of her financial affairs she relied upon defendant’s statements concerning her said affairs, particularly with reference to the investment of the $6,000.00. It, therefore, appears that there is no allegation of the management of plaintiff’s financial affairs except, possibly, as her adviser in loaning her money and investing her money in loans on real estate security. There is no allegation that in the management of her financial affairs defendant retained custody of the note and mortgage in question. There is no allegation of any matter tending to show that he was required to do anything in reference to the retention of the custody of the papers; it is not even alleged that he was charged with the collection of the interest on the note.
The use of the words "trustee" and "agent" in the petition in that part alleging that defendant retained custody of the note and deed of trust as "trustee" and "agent" for plaintiff, is a statement of the conclusion of the pleader and its truth is not admitted by the demurrer. Schindler v. Sorbitz (Mo. App.) 268 S.W. 432; Furlong v. Druhe (Mo. App.) 2 S.W.2d 162; Baum v. Stephenson, 133 Mo.App. 187, 197, 113 S.W. 225. The petition will be construed as though these words did not appear. Jones v. Schaff Bros. Co., 187 Mo.App. 597, 174 S.W. 177. We, therefore, have a petition in which it is alleged that defendant, who had acted as agent for plaintiff in purchasing a specific promissory note and deed of trust, retained custody of the note and deed of trust for plaintiff, without stating any facts showing that any duty rested upon defendant in connection with the keeping of the note in his custody. No reason is alleged for the retention of the papers by defendant, nor can any be implied from the allegations of the petition, so far as doing anything for plaintiff with reference to the retention of the papers that would constitute agency in defendant. When defendant retained custody of the papers for plaintiff, with her consent, after his work in making the loan was completed, his agency terminated and he became a mere bailee of the note and mortgage, gratuitous so far as the allegations in the petition show. Herd & Son v. Bank, 66 Mo.App. 643.
If the relationship between the parties was that of bailor and bailee at the time the defendant sold the note and mortgage on February 23rd, 1923, no demand for its return was necessary for the starting of the running of the statute had begun at that time. Bollman v. Peake, 96 Mo.App. 253, 69 S.W. 1058. See also 37 C. J. p. 840 Note 27 (b). The only thing that would have prevented its running would have been some fraud on the part of the defendant in preventing plaintiff from learning of the sale of her note. This might consist of concealment or misrepresentation, but mere silence was not enough. However, such acts of concealment or misrepresentation should have been set out in the petition. This was not done except by way of conclusions.
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