Pledge v. Griffith
| Decision Date | 02 April 1918 |
| Docket Number | No. 14857.,14857. |
| Citation | 202 S.W. 460,199 Mo. App. 303 |
| Parties | PLEDGE v. GRIFFITH |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Pike County; Edgar B. Woolfolk, Judge.
Suit by Sue R. Pledge against Lemmie C. Griffith. From a judgment for plaintiff, defendant appeals. Reversed, and remanded.
J. E. Thompson, R. L. Motley, and Hostetter & Haley, all of Bowling Green, for appellant. Pearson & Pearson, of Louisiana, Mo., for respondent.
Plaintiff's petition alleges that plaintiff "formerly owned some shares of stock in the Farmers' State Bank, of Bristow, Okl.; that they were held for her in the name of her brother, J. A. Pledge, now deceased; that in the fall of 1910 she authorized Lemmie C. Griffith, defendant, to sell the same for her; that he did sell the same, and received therefor the sum of $600, and the accumulated dividends on said shares of stock, the exact amount of which the plaintiff says she does not know, but which she alleges to be $150; that defendant has refused to turn over to her the proceeds of the sale of said stock and accumulated dividends, although often requested to do so; that he has paid to her the sum of $36 for which he is entitled to a credit." Judgment is prayed for $750, with interest "from date of demand, to wit, the _____ day of ____, 1910, less credit of $36." The answer first contains a general denial and then sets up that for many years prior to the time when defendant attained his majority, J. A. Pledge was the curator of defendant's estate and had possession of funds belonging to defendant amounting approximately to $3,500; that J. A. Pledge, as such curator, used funds of defendant in his hands in the purchase of 20 shares of stock of the bank mentioned in the petition, taking the certificates in his own name; that in the fall of 1910, while defendant was a minor, J. A. Pledge, being desirous of settling with defendant as curator, sold said 20 shares of stock, and delivered the proceeds to defendant in part settlement with defendant as curator It is further averred that all of the transactions above mentioned took place while defendant was a minor, and that defendant was a minor "at the time plaintiff alleges the contract between her and this defendant was made, and that the proceeds of the sale of this bank stock were used by this defendant, and that this defendant is in no manner liable to plaintiff in any sum." The trial, before the court and a jury resulted in a verdict and judgment in favor of plaintiff in the sum of $717, and the defendant appeals. After the case reached this court plaintiff died, and the cause has been revived in the name of her administrator, E. G. Pledge.
Plaintiff, Sue R. Pledge, was an aunt of the defendant, being a sister of defendant's mother, Mrs. Griffith. She is frequently referred to in the testimony as "Aunt Sue." J. A. Pledge, who died in 1913, was a brother of plaintiff and defendant's mother. He is referred to as "Uncle Arch." He was the curator of an estate belonging to defendant, his nephew, then a minor, and who did not attain his majority until April 24, 1911. It appears that prior to 1903 all of these persons lived together as members of one family at the Griffith home in Pike county, Mo. It is said that in 1903 J. A. Pledge went to Oklahoma, intending to remain there permanently, though he made frequent trips to Pike county, and that in October, 1904, the other persons mentioned also moved to Oklahoma, where they lived until August, 1905, when they returned to this state. It is said that Pledge did not again take up his residence in Missouri until some time in 1909, although he went "back and forth" in the meantime. After his return all of the said persons again resided together in Pike county, at the Griffith home, until after defendant became of age in 1911.
J. A. Pledge made some investments in Oklahoma. Whether or not he had funds of his own invested there is not clear. The evidence shows, however, that he had in his hands moneys belonging to plaintiff and her sister, Mrs. Griffth, as well as funds belonging to his said ward; and that he was supposed to have purchased stock of the First State Bank of Bristow, Okl., for plaintiff and her sister, as well as for the defendant, his ward. In December, 1910, J. A. Pledge being then, it is said, in failing health, defendant and Senator W. J. Buchanan, cashier of a bank at Eolia, Pike county, went to Oklahoma for the purpose of "looking after" J. A. Pledge's business, "in trying to get a line on it." Defendant and his companion found, at the Bristow bank in Oklahoma, in a certain box, certificates for 20 shares of stock of said bank, of the par value of $100, issued to J. A. Pledge. This stock and certain other papers of Pledge were brought back to Eolia. It was found also that Pledge had on deposit in the bank at Bristow between $1,200 and $1,300. This money was withdrawn on a check executed by Pledge, and was turned over to the defendant. The certificates of stock mentioned were indorsed by Pledge, and were sold by defendant through Senator Buchanan to E. L. Jones, cashier of the Bristow bank, in January, 1911, defendant receiving $2,400 therefor. It is plaintiff's contention that 5 of the shares of stock thus sold belonged to her, and that she is entitled to recover the proceeds of the sale thereof.
Plaintiff testified that her brother, J. A. Pledge, invested for her $675 which she placed in his hands, and that he purchased with it 5 shares of bank stock in Oklahoma, that he "looked after her business," and that she "left everything to him." This she thought was in 1902 or 1903. She said that her brother, upon one occasion, gave her $60 which purported to be a dividend upon the stock. She testified that shortly before defendant sold the 20 shares of stock mentioned above she had a conversation with her brother, J. A. Pledge, in regard to selling her portion thereof, and later a conversation with her nephew, this defendant, in regard to the matter. As to this latter conversation she testified:
And she testified:
That after defendant returned from Oklahoma he had a further conversation with her and said, "Aunt Sue, I think you are making a mistake; you ought to sell your bank stock; it would make mother feel better if you would sell them both together;" that he said that he was "on a deal with Mr. Jones, cashier of the bank;" and that she thereupon said, "Lemmie, if you think it's best, of course sell it; * * * your Uncle Arch turned it over to you, and you can sell it;" and that defendant said, "All right."
She further testified that defendant afterwards told her that he realized $600 for the 5 shares.
Plaintiff's further testimony is that after defendant had reported to her that the stock had been sold, he told her that Senator Buchanan would lend her money at 6 per cent. to which she objected, saying, "I think I can loan it"; that later defendant came to her and said that he would like to borrow the money, and that he would give her a good note and 6 per cent. interest, and that she agreed to do this; that thereafter she frequently requested defendant to give her the note, and he repeatedly promised to do so, but that she did not succeed in obtaining a note, and did not receive any money from defendant, with the exception of $5 with which to purchase some medicine and $26 to pay for some dental work. On cross-examination plaintiff testified that she never saw the certificates of stock that her brother bought with her money; that her brother invested $675 for her sister, Mrs. Griffith at the same time, but that she did not know whether her sister ever "got any of her money back." When asked if the bank stock bought for her and her sister was not sold by J. A. Pledge in 1907, she answered in the negative. When further asked if she did not know that her brother sold some bank stock in 1907, she said, "That was Lemmie's." She was asked if her money and that of her sister was not used in making the first purchase that her brother made of any bank stock in Oklahoma, and she replied that that was her understanding, though she could not tell just when it occurred. She said that she knew nothing about any subsequent purchase of bank stock by her brother.
Senator Buchanan, called as a witness for plaintiff, testified concerning his trip to Oklahoma with defendant in December, 1910, the finding of the certificates for the 20 shares of stock mentioned above, the sale thereof to E. L. Jones, and the obtaining by defendant of the money on deposit in the Bristow bank to the credit of J. A. Pledge. He further testified that in a conversation with defendant in regard to selling the 20 shares of stock when E. L. Jones offered $120 per share therefor, the defendant told the witness "that he didn't know about Aunt Sue's 5 shares, whether she wanted to sell it; she might want to keep it and use the dividends from it, but he wasn't prepared to answer that day"; but that later defendant told him to "go ahead and sell the stock." When asked if defendant told him how many shares of stock Aunt Sue had, he answered, "Five shares, he said." He stated that this occurred after his return from Oklahoma.
This, in substance, is the testimony in chief in behalf of plaintiff.
Defendant introduced the deposition of E. L. Jones, cashier of the First State Bank of Bristow, Okl. By this witness it was shown that, on or about March 13, 1905, certificates of stock of that bank were issued to J. A. Pledge, as follows, viz.: Certificate No. 36 for 40 shares;...
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