Prasse v. Prasse

Decision Date21 December 1934
Docket Number31450
Citation77 S.W.2d 1001
CourtMissouri Supreme Court

Holland, Lashly & Lashly and Stout & Spencer, all of St Louis, for appellant.

Taylor R. Young and Foristel, Mudd, Blair & Habenicht, all of St Louis, for respondent.


HAYS Judge.

This is a bill in equity seeking to establish an alleged partnership, the dissolution thereof and an accounting, and a money judgment. From the decree rendered as prayed, the defendant appealed.

The parties married on November 27, 1907, at the ages, respectively, of twenty-one and twenty-three years, the wife being the older. They separated in August, 1928. The separation was immediately followed by the institution, and subsequent dismissal, of a proceeding by the wife for divorce. The present suit was brought shortly thereafter.

The bill charges, in substance, that the parties were engaged as partners in the real estate business and in the operation of a meat market, in the city of St. Louis. That they acquired, February 10, 1923, for a valuable consideration, a certain vacant lot (describing it) in the city, known as Nos. 4030-4034 Palm street, to hold until the death of the survivor, with remainder to their children; 'that by consent and agreement plaintiff and defendant said partnership real estate was taken in the name of defendant' (italics ours); that said copartnership, with its own funds, constructed on said lot two four-family apartment buildings at a cost of $ 32,000; that on December 21, 1926, said copartnership acquired, with partnership funds, the residence property of defendant's mother, located on Jefferson avenue and known as 3521 North Jefferson avenue; 'that under the terms of their partnership agreement the title to this property was taken in defendant's name, but she holds same in trust for said partnership'; that plaintiff and defendant had been engaged as partners in the operation of a meat market in the city, in which they invested $ 5,500, and defendant has, through connivance with said bank and Carl Prasse, son of the parties, converted said business to her own use.

Defendant answered under oath admitting she was the owner of an undivided half interest in a certain other property, known as 5312 Hamilton avenue, which plaintiff had alleged he was in possession of and as to which he sought no relief. She denied plaintiff's charges generally and alleged that the rents from the Jefferson avenue and Palm street properties which she had in her possession were wholly insufficient to cover the amount she expended in taxes, etc., and in the support of herself and minor children, from whom he had separated and whom he failed to maintain; that the meat market had become the property of their son, Carl, pursuant to their promise given him when, as a boy fourteen years old, he began to work for wages and turned same over to them. She alleged also laches on the part of plaintiff.

The reply was a general denial.

The creation of the alleged partnership relation is dependent entirely upon the testimony of plaintiff, which we state in narrative form: On an evening, three months before the marriage, during a call he made at defendant's mother's home, his wife to be was seated on his lap. In relation to what then occurred, he further testified under his counsel's inquiries. Being asked if they then and there made any arrangement, he answered, 'Yes.' He told her to take charge of finances and he would do everything else. She said, 'All right.' He told her he would turn the money over to her. She was an experienced bookkeeper and knew all about banking and he knew very little. He told her 'to handle the financial end of it' (being asked, 'Of what?' he answered, 'The marriage contract'), and, if anything was done afterwards, he would attend 'to everything except the financial end.' He said to her, 'I expect to get some little money from my folks sooner or later, and when I do we will put it in real estate. When I do, you handle the banking end and I the other. She said 'All right'. The only thing she objected to was taking the money before we were married and banking it for me. She got me to do that myself.' Being asked whether anything was said as to what their respective interests were to be, he answered, 'Everything was figured on a fifty-fifty basis, I told her then. She said, 'All right'. I told her then I expected to get property from my folks -- if not property then I would get equity -- and I would try to sell the equity and put it into real estate and that is when the question came up about banking.' Questioned as to savings, he said, 'They were figured. I told her then I didn't want any woman I couldn't trust. I trusted her explicitly (sic), and I said, 'I will turn over all my money to you all the time, and you take care of it.' ' Questioned further as to what was to be done with the money and about investments, he testified, 'The money was to be put in a joint account in our joint names so either of us could do anything necessary to be done with the money; that we were going ahead in real estate. We didn't mention it as real estate; it was to buy a flat or house we talked about. Everything was to go fifty-fifty. Everything was to be equal.'

The defendant testified, on the contrary, that, before they were married, they had never had any talk about becoming partners or going into the real estate business, or any other business; that, however, he had requested her to keep the money and take care of the finances.

The evidence shows that after the marriage of the parties the defendant managed their monetary, as well as their household affairs. Plaintiff followed his trade of cabinet maker, later that of journeyman carpenter, and turned his wages over to the defendant who deposited the same in bank. Defendant so deposited, too, the small sum she received for a few weeks' stenographic work she performed in the first year. She also deposited in the same way the interest received on her previous savings of $ 500, the principal having been invested in bonds. And through the whole of their married life she likewise deposited the rents received from the properties in question and the proceeds of properties sold in that period. The deposits were made in a St. Louis Bank, and were carried by the bank in two separate accounts, one a checking and the other a savings account, and both were carried in their joint names, thus: 'Edward Prasse and Cora Prasse, either or the survivor.'

For nine years immediately following the marriage, 1907-1916, the parties lived in part of the Jefferson avenue home of Mrs. Sotier, at a reduced rent. In this period and in January, 1914, what is known as the Clara avenue dwelling house was bought. The purchase price was $ 1,600, of which $ 400 was paid out of the joint fund augmented by the interest as it accrued on said bonds, $ 500 realized from selling the bonds themselves, and $ 700 furnished by defendant's brother as an unsecured loan. This property was kept rented out. Also it was improved from time to time. When finally sold, it brought, net rents considered, $ 5,000, all of which went into said joint account and became a part of the purchase money of the Hamilton and Ashland avenues properties acquired in 1917 and 1921, respectively.

The Hamilton avenue holding, vacant when acquired, was subsequently improved by the erection thereon of a dwelling house, eventually all paid for out of the joint fund. On the trial the then value was placed at $ 3,800 by plaintiff and at $ 4,000 by defendant.

The Ashland avenue holding, also vacant when acquired on June 17, 1917, was afterward likewise improved by the erection of a dwelling house thereon. It was subsequently sold for $ 3,850. This sum was used partly to alter and repair the Clara avenue holding and partially for the Hamilton property.

After living nine years in Mrs. Sotier's Jefferson avenue residence, plaintiff and defendant, in 1917, removed to the Clara avenue dwelling, where they remained for six years. Toward the end of the last period, Mrs. Sotier proposed that they move back to her Jefferson avenue residence and occupy a part of the same as before. However, before that, some difference had arisen between the husband and wife over $ 1,200 the husband inherited from his mother. He at once on receiving it set out to dispose of this money by contracting for an $ 800 automobile and a $ 100 player piano, paying for them shortly after the receipt of the money by going through the form of placing it in the joint account and shortly thereafter checking out the same. This conduct displeased Mrs. Prasse and she complained of it -- and remembered it.

Returning to the Palm street lot and the removal to Mrs. Sotier's home, we give in substance the conflicting versions of the parties in regard thereto. According to plaintiff's version, a few weeks before the removal Mrs. Sotier said to him, in his wife's presence, that she would give him (meaning himself and wife, as he took it) the lot on Palm street if he would come back to Jefferson avenue and take care of her and her place; that his wife agreed they would move back and would build on the lot; that in a few weeks they did move there; that the transfer of the Palm street property was attended to by Mrs. Sotier and defendant; that defendant told him that the property was in both their names; that he did not learn it was not in both until he took out the building permit for the construction of the apartments. When he learned the title was in her alone, he immediately declared that he was not going to put his money on the lot without his name on the deed.

Defendant testified that in 1921, two years before they removed from Clara avenue to her mother's home on Jefferson avenue her mothe...

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