Pullis v. Somerville

• Decision Date: 31 March 1909
• Citation: 117 S.W. 736,218 Mo. 624
• Parties: ANGELINE E. PULLIS v. WILLIAM SOMERVILLE, Appellant
• Court: Missouri Supreme Court

117 S.W. 736

218 Mo. 624

ANGELINE E. PULLIS v. WILLIAM SOMERVILLE, Appellant

Supreme Court of Missouri, First Division

March 31, 1909

Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.

Affirmed.

H. A Loevy for appellant.

(1) The referee erred in his finding that plaintiff did not accept deeds to the two Westminster Place houses. (2) The referee's method of calculating interest is illegal. Darling v. Potts, 118 Mo. 528. Especially as he has allowed compound interest which is not lawful unless specially contracted for in writing. R. S. 1899, sec. 3711; Storage Co. v. Glasner, 169 Mo. 46; Riney v Hill, 14 Mo. 500; Stoner v. Evans, 38 Mo. 461; Gas Co. v. St. Louis, 82 Mo. 202, 11 Mo.App. 78; Way v. Priest, 87 Mo. 182; State ex rel. v. Donegan, 94 Mo. 70; State ex rel. v. Shaw, 1 Mo.App. 519; Poulson v. Collier, 18 Mo.App. 605; James v. Hiatt, 80 Mo.App. 46; Call v. Moll, 94 Mo.App. 391. Even where interest is by contract payable annually, it cannot be compounded. Stoner v. Evans, 38 Mo. 461; Williams v. Carroll Co., 167 Mo. 16. (3) The referee erred in deducting defendant's share of Sophia Crawford's estate, because: (a) Appellant never assigned same by formal instrument of writing. (b) Appellant flatly refused to execute same when requested to do so several times. (c) Respondent disdainfully refused during the hearing to recognize the assignment because it was speculative and valueless. (d) Such an estate is not assignable at common law which prevails in Ireland, the locus quo of this property. (4) Referee erred in not allowing defendant credit for $ 5,000 value of Andes Mining Stock, because: (a) He had in fact assigned same to her shortly after company was organized. (b) He delivered certificates for same to her attorney promptly on latter's request therefor in 1900 in part payment. (c) Same was worth par (if not more) when he assigned it. (d) It was not a stock-jobbing scheme. (5) Referee erred in not making a special and distinct finding for or against allowance of each item of credit claimed by defendant. State ex rel. v. Peterson, 142 Mo. 534; Darling v. Potts, 118 Mo. 528; Edwards v. Garnhart, 56 Mo. 84. (6) Referee erred in not allowing defendant interest on amounts paid by him to plaintiff. The rule is either interest on both sides of the account or none to either side except on the balance when ascertained. Darling v. Potts, 118 Mo. 526. (7) Referee erred in not charging plaintiff for use and occupation of the country place she occupied for one year. R. S. 1899, sec. 4113; O'Fallon v. Boismen, 3 Mo. 405; Warne v. Prentiss, 9 Mo. 544; Edmonson v. Kite, 43 Mo. 176; Edwards v. Electric Co., 76 Mo.App. 618. (8) The record does not show that the referee took the oath in writing mandatorily required by statute. R. S. 1899, sec. 703.

Rassieur, Schnurmacher & Rassieur for respondent.

(1) (a) Although respondent's abstract shows that the referee took the oath required by the statute, it is not necessary that such fact should appear from a recital in the record. In the absence of proof or a statement to the contrary appearing in the bill of exceptions, it will be presumed that he duly complied with the provisions of the statute. Green v. Walker, 99 Mo. 73; Hemelreich v. Carlos, 24 Mo.App. 271; State v. Pollard, 14 Mo.App. 583. (b) If the referee had not been sworn, appellant would not be in a position to complain, since such failure to comply with the statute would have been a mere irregularity, and was waived by appellant's taking part in the proceeding before the referee, offering testimony and examining witnesses, all without objection. Bissel v. Warde, 129 Mo. 449; State v. Hope, 100 Mo. 355; State v. Davis, 186 Mo. 533. (c) This claim of error was not made in the proceedings before the referee, nor was it made in appellant's exceptions to the referee's report, in his motion for new trial or in his motion in arrest; it is therefore now too late to raise the question for the first time on this appeal. Carter v. Prior, 78 Mo. 224; Hemelreich v. Carlos, 24 Mo.App. 271; City v. Excelsior Brewing Co., 96 Mo. 677; Gorham v. Railroad, 113 Mo. 408; St. Louis v. Sieferer, 111 Mo. 662. (2) (a) The referee was not required to make a special and distinct finding on each of the 350 items forming the credit of $ 28,611.27, claimed by appellant in the first defense pleaded in his answer. Caruth-Byrnes Hdw. Co. v. Wolter, 91 Mo. 489. (b) In the absence of any statute requiring specific findings, a general finding will be sufficient, unless the order of reference directs otherwise. Caruth-Byrnes Hdw. Co. v. Wolter, 91 Mo. 489; Odd Fellows v. Morrison, 42 Mich. 521. (c) A referee is only required to make separate findings where there are several distinct causes of action stated in separate counts of the petition, or counterclaim. State ex rel. v. Peterson, 142 Mo. 535. (3) (a) The method of calculating interest adopted by the referee was correct. Frost v. Winston, 32 Mo. 494; Williams v. Pettigrew, 62 Mo. 472; In re Murdoch & Dickson, 129 Mo. 499; In re Estate of Camp, 74 Mo. 192. (b) Where a trustee mingles the money of the trust estate with his own, and uses it for his own benefit and in his own affairs, and neither does, nor can, render a separate account of the estate and its earnings, he is properly chargeable with legal interest computed with annual rests. Perry on Trusts, sec. 471; Bobb v. Bobb, 89 Mo. 421; Williams v. Pettigrew, 62 Mo. 472; Cruce v. Cruce, 81 Mo. 676. (c) The rule for computing interest on legal demands, upon which partial payments have been made, does not apply to trustees' accounts. Cruce v. Cruce, 81 Mo. 691. (4) The referee did not err in allowing appellant credit for his interest in the Sophia Crawford estate. Appellant, in his answer, pleaded that he had assigned this interest to respondent, and he is bound by the allegations of his pleading. Oglesby v. Railroad, 150 Mo. 177; Kuhn v. Weil, 73 Mo. 215; Bruce v. Sims, 34 Mo. 251; Bensieck v. Cook, 110 Mo. 182; Wilson v. Albert, 89 Mo. 546. (5) Appellant's claim to a credit of $ 5,000, the alleged value of the mining stock which he owned, and which on February 22, 1898, he transferred on the books of the company to respondent, without her knowledge or consent, was properly rejected by the referee and the circuit court. (a) Appellant pleads in his answer that this sale was made at the "special instance and request" of respondent, but in his testimony he admitted that he had made this transfer without respondent's consent or knowledge, and that respondent did not learn of it until a short time prior to the institution of this suit. (b) Appellant, as trustee of the fund in his possession, had no power or authority to invest it in speculative stocks or in a business venture, the success of which had not become established. The investment was a gross breach of trust, and he is liable for all loss occasioned thereby. Perry on Trusts, sec. 454; Kimball v. Reding, 31 N.H. 374; King v. Talbot, 40 N.Y. 85; Drake v. Crane, 127 Mo. 106; Garesche v. Levering Inv. Co., 146 Mo. 445. (c) Where a trustee makes an investment in his individual capacity and fails to indicate promptly that the investment is on account of the trust in his charge, he will not be heard, after a loss or depreciation of the investment, to say that the investment was made in his representative capacity. State ex rel. v. Roeper, 82 Mo. 63; White v. Sherman, 168 Ill. 589; Perry on Trusts, sec. 452.

OPINION

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 eight 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 six 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 fifty shares of stock of the Andes Mining Company for which he paid $ 5,000;...