Pullis v. Somerville

• Decision Date: 25 February 1909
• Citation: 117 S.W. 736,218 Mo. 624
• Parties: PULLIS v. SOMERVILLE.
• Court: Missouri Supreme Court

117 S.W. 736

218 Mo. 624

PULLIS v. SOMERVILLE.

Supreme Court of Missouri, Division No. 1.

February 25, 1909.

Rehearing Denied March 31, 1909.

1. REFERENCE (§ 42)—REFEREES—OATH.

Under Rev. St. 1899, § 703 (Ann. St. 1906, p. 710), directing that the oath of a referee be taken "before some officer duly authorized to administer an oath," and that "it be filed and returned with the award," it is not necessary that the oath should be marked "Filed" by the clerk of the court.

2. MONEY LENT (§ 7)—ACTIONS—SUFFICIENCY OF EVIDENCE.

Evidence in an action to recover money loaned held to sustain a finding of the referee and judgment of the court for plaintiff.

3. INTEREST (§ 12)—LIABILITY FOR MONEY WRONGFULLY USED.

Where money was given defendant for investment, and he deposits it with his own money and checks against it as his own money, he is liable for interest thereon.

4. DEEDS (§ 208)—EVIDENCE OF ACCEPTANCE.

Evidence in an action to recover money loaned held not to show an acceptance of deeds of property which defendant alleged that he had transferred to plaintiff.

5. LANDLORD AND TENANT (§ 183)—IMPLIED AGREEMENT TO PAY RENT.

Where plaintiff occupies a place during several months, with a view to buying the same if she is satisfied with it, and at the end of the time leaves it, not being satisfied, no agreement for the payment of rent will be implied from the circumstances.

6. REFERENCE (§ 89)—REQUISITES AND SUFFICIENCY OF REPORT—SEPARATE FINDINGS ON EACH ITEM.

Where defendant, in an action for money loaned, answers "that at the request of plaintiff defendant paid out from time to time various sums of money for her on account, as appears by detailed statement attached and marked `Exhibit A,'" and the exhibit is so vague as not to give the referee an intelligent understanding of what the various items mean, and many of the items testified to by defendant do not show under what item in the exhibit they should be placed, it is not necessary for the referee to make a separate finding for each of the items in the exhibit.

7. PLEADING (§ 310)—EXHIBITS—OPERATION AND EFFECT.

An exhibit is no part of the pleading, and per se tenders no issue calling for a separate verdict.

8. DEEDS (§ 200)—DELIVERY AND ACCEPTANCE —ADMISSIBILITY OF EVIDENCE.

In an action for money loaned, defendant alleged the transfer of certain houses to plaintiff as part payment of her account against him. Plaintiff contended that she did not accept the deeds of the premises, and it was shown in evidence that her counsel took the deeds to examine the title, under an agreement to accept them if satisfactory, and her counsel testified that on his investigation he found that the property had recently been transferred by defendant to an insolvent relative, and that at the time of the transfer suits were pending against defendant which soon ripened into judgments against him, and that a title guaranty company refused to guarantee the title, and a number of court records were introduced showing judgments against defendant, and a certified copy of a deed from defendant to his relative was also introduced. The deeds by which defendant offered to transfer the property to plaintiff were deeds of his relative. Held, that the evidence was admissible as bearing on the question of whether plaintiff had accepted the deeds.

9. MONEY LENT (§ 7)—ACTIONS—ADMISSIBILITY IN EVIDENCE.

In an action for money loaned, defendant alleged that he had transferred to plaintiff, without her knowledge and consent, certain worthless shares of stock in a mining company. Held, that evidence to show, not only the condition of the company at the time of the alleged transfer, but that it grew worse as time went on, and also evidence of its condition two years after the date of the alleged transfer, at which time plaintiff ascertained that the stock had been transferred to her, was properly admitted as bearing on the question of defendant's good faith in trying to sell the stock to plaintiff.

10. REFERENCE (§ 100)—REPORT—OBJECTIONS AND EXCEPTIONS.

Exceptions to the report of a referee that "referee has erred in all his calculations of interest," and that "the referee has erred in his method of calculation of interest, the same being contrary to the law of this state," and that the referee ought to have allowed defendant interest on each item of his credits from the date of payment, do not raise the objection that the referee allowed plaintiff compound interest.

11. INTEREST (§ 58) — COMPUTATION — RESTS IN COMPUTATION.

Where there are mutual running accounts, interest may be given on both sides until a balance is struck, and then interest runs only on the balance, and, when a part payment is made on a debt, interest should not be computed on the money paid, but only the balance due on the debt.

12. INTEREST (§ 60) — COMPUTATION — "COMPOUND INTEREST."

Computing interest with annual rests constitutes compound interest.

13. TRUSTS (§ 219)—MANAGEMENT—INTEREST ON FUNDS OF ESTATE—COMPUTATION—COMPOUND INTEREST.

Rev. St. 1899, § 3711 (Ann. St. 1906, p. 2080), which allows compound interest only on an express written contract therefor, does not apply to the accounting of a derelict trustee.

14. APPEAL AND ERROR (§ 221)—RESERVATION IN LOWER COURT OF GROUNDS OF REVIEW —ERRORS APPARENT FROM RECORD.

As a plaintiff can only recover on a case made by her own pleading and proof, and in an action to recover money loaned on asking for interest cannot recover compound interest, the objection to the report of a referee allowing compound interest may be taken for the first time on appeal, the error being one appearing on the face of the record.

15. INTEREST (§ 56)—MODE OF COMPUTATION IN GENERAL.

Interest should be calculated on a demand up to the first partial payment and added to the principal, and the payment deducted therefrom, and then interest computed on the remainder to the second payment, and so on until the last partial payment, unless in any case the interest up to any payment shall exceed the payment, in which case the payment is to be deducted from the interest and the excess of interest carried forward without casting interest thereon to the next payment that will discharge the excess.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Action by Angeline E. Pullis against William Somerville. Judgment for plaintiff, and defendant appeals. Affirmed.

H. A. Loevy, for appellant. Rassieur, Schnurmacher & Rassieur, for respondent.

VALLIANT, J.

This is an action to recover moneys loaned by plaintiff to defendant. The first item mentioned in the petition is $3,500, a legacy under the will of Jason Crawford, bequeathed to defendant in trust, to pay the interest to testator's sister, Elizabeth Somerville, during her life, and the principal to the plaintiff at the death of Elizabeth. Elizabeth died September 22, 1883, and plaintiff, then being entitled to the principal, loaned it to the defendant at his request, on the agreement that he would pay it to plaintiff on demand and 8 per cent. interest per annum. The petition also states that in November, 1894, she loaned defendant $25,000, which she at that time received from the Equitable Life Assurance Society of New York, $5,000 from the Massachusetts Mutual Life Insurance Company, and $3,015.16 from the Mutual Benefit Life Insurance Company. The petition admits the payment to her in 1893 of $1,400 on account of the loans, and the same amount in 1895, and avers that in 1895, about four months after the life insurance moneys were loaned as above stated, defendant rendered the plaintiff an account of his indebtedness to her, showing the amount due her for principal and interest $34,500, which sum he agreed and promised to pay on demand, with interest at 6 per cent. per annum. The petition then states that from November, 1894, up to and including September, 1899, the defendant paid plaintiff monthly, on account of the indebtedness, various sums ranging from $150 to $200 per month (she is unable to state it more accurately), and not any more. The prayer of the petition is for a judgment for $34,500 and interest from ____ November, 1894, less such sums as the court may find the defendant may have paid on the account.

The answer is, first, a general denial. Then follows an admission of having received from plaintiff $32,500, which it states defendant was to keep and invest for plaintiff. Then there is a statement that he paid out for her from time to time sums aggregating $28,611.27, of which he files a list marked "Exhibit A"; and in addition thereto that he paid out for rent for her $1,000 a year from 1895 to 1900, inclusive—total $5,000; that in 1898, at her request, he delivered to her 50 shares of stock of the Andes Mining Company, for which he paid $5,000; that in 1899 he paid her amounts collected by him as rent for the house at Westminster place in the city of St. Louis which he had purchased, $100 per month—$1,200; that in 1900 he deeded to her two houses in Westminster place subject to mortgages, the equity in which by agreement was fixed at $12,000; that in 1900 "he assigned to her by way of power of attorney" to collect a portion of an estate in Ireland, valued at $4,000; that he gave sums to her sons at her request from time to time, and paid out expense money for moving her family to New York, and money sent her when she was in Europe aggregating $1,000. Total payments alleged to have been made, $56,811.27, "largely in excess of what was received by him from her, for which, with interest, he prays judgment." The reply joins issue on all of those averments.

The suit was filed to the December term, 1900, of the St. Louis circuit court. At the February term, 1901, March 18th, defendant filed his amended answer, as above, and by stipulation filed the cause was on that day referred to George E. Smith, Esq., to try all issues and report. The trial was long, running through several years apparently, and the referee...