Purdy v. Pfaff

Citation104 Mo. App. 331,78 S.W. 824
CourtCourt of Appeal of Missouri (US)
Decision Date02 February 1904
PartiesPURDY v. PFAFF.<SMALL><SUP>*</SUP></SMALL>

Appeal from Circuit Court, Lawrence County; Henry C. Pepper, Judge.

Action by Ida N. Purdy against Albert F. Pfaff. From a judgment for defendant, plaintiff appeals. Affirmed.

Washington Cloud, for appellant.

REYBURN, J.

The sole question presented for the decision of this court necessitates the reproduction of the plaintiff's pleadings, although they are somewhat lengthy. Plaintiff brought this action to November term of the circuit court of Lawrence county, by filing the following petition: "Plaintiff states: That on June 1, 1900, and for a long time prior thereto, George A. Purdy was and had been postmaster at Peirce City, Missouri, under an appointment of the President of the United States for a term ending January 21, 1902. That as such he had executed bond to the United States in the sum of $6,000, by which he had bound himself, his heirs and executors, to perform and to cause to be performed all the duties of said office during his said term and until his successor should be duly appointed and take charge of said office. That the defendant and others were his securities in said bond, and by its terms become liable to the penalties of the same if default was made, and the principal in said bond should not pay the same. That the duties of said office were, in part, that a suitable room and place should be maintained, with boxes, safes, and other furniture and fixtures to receive all mailable matter coming, see that it was properly stamped, cancel the stamp, and forward the same to its proper destination; to receive and distribute all such matter as might, through the regular channels of the mail, come to said office; to sell stamps and postal cards, issue money orders, and collect fees and commission therefor; to rent the boxes and collect the rentals due on same; to pay off all legitimate expenses, including his own salary and commissions, and remit the balance to the United States treasury. That for his services he received about one hundred and fifty dollars, out of which he had to pay two clerks and all other expenses. That all the fixtures and furniture was furnished by the postmaster at his own cost, and was his own individual property. That the said Purdy was on said date employing two clerks, for which he paid them $30 and $15, respectively, and the said clerks were doing all the work required in said office. Plaintiff says that on the 1st day of June aforesaid the said George A. Purdy died, leaving the said office, with all its fixtures, furniture, and belongings, in charge of the plaintiff, as his widow and executrix, but more immediately in charge of the clerks aforesaid, who were there and continued thereafter to perform all the work in said office at the same salary, till the successor of said Purdy was appointed and took charge of said office on the 1st day of April, 1901. That, in order that the securities on his said bond and the estate of Purdy be fully protected, and the contract therein contained be fully executed till such time as the successor should be appointed, it was arranged between the plaintiff and the bondsmen for the defendant to be in personal charge of said office, and to act for them (pro tem.), and do such acts and duties as could only have been done by the said George A. Purdy personally, take charge of the receipts of said office, collect the compensation allowed to said Purdy, pay all the expenses, all of the same, and after receiving a reasonable compensation for his service, pay the remainder to plaintiff. That under said arrangement, agreement, and understanding the defendant collected each month the sum of one hundred and fifty dollars, paid to the clerks forty-five dollars, which was all the expenses for which the office was liable, appropriated the balance of one hundred and five dollars each month to his own use, and continued to do this for ten months, and has failed to account for the said sum of $1,050 so received, or to pay the same, or any part thereof, to the plaintiff, although required so to do. That the said George A. Purdy left a will, by which he devised all his property and personal effects to this plaintiff, who was also appointed and named there as his executrix, which will was on the 4th day of June, 1900, duly probated in Lawrence county, and letters testamentary were granted to plaintiff. That on the 1st day of October, 1901, plaintiff demanded of defendant the amount sued for. Wherefore plaintiff prays judgment for one thousand and fifty dollars, with the interest thereon from the 1st day of October, 1901, at the rate of six per cent., and for costs."

Defendant's general demurrer was awaiting the action of the court, when, by leave of court, plaintiff substituted an amended petition, thus: "Plaintiff, for amended petition, states: That on the 1st day of June, 1900, her husband, George A. Purdy, was postmaster at Peirce City, Missouri, under an appointment of the President for a term ending January 21, 1902, and had at a large outlay furnished the office with the latest and most improved fixtures and furniture for conveniently operating the office, and had procured the assistance of clerks, whom he had trained until they were fully competent to carry on said office, for all of which he received about $1,800 per year, out of which he paid his clerks $45 per month. He had executed a bond to the government in the sum of $6,000, conditioned that said office should be carried on during his term according to law, and the defendant, Albert Pfaff, and R. T. Brite, Frank Wicks, Barney Mullrenin, Chas. Hellweg, Fred Albert, were his bondsmen. That on the said 1st day of June, 1900, the said George A. Purdy died testate, giving to p...

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19 cases
  • Bentrup v. Johnson
    • United States
    • Missouri Court of Appeals
    • March 5, 1929
    ... ... amended ones, and the third amended petition in this case is ... identical with the original petition. Purdy v ... Pfaff, 104 Mo.App. 331; Steele v. Brazier, 139 ... Mo.App. 319. (2) Even if the third amended petition were a ... departure, the ... ...
  • Smith v. Harbison-Walker Refractories Co.
    • United States
    • Missouri Supreme Court
    • January 5, 1937
    ... ... 449; Arrowood v. Delaney's ... Estate, 295 S.W. 522; Liese v. Meyer, 143 Mo ... 547; Ross v. Land Co., 162 Mo. 317; Purdy v ... Pfaff, 104 Mo.App. 331. (2) The court erred in ... submitting this case to the jury for the reasons: (a) There ... was no proof either ... ...
  • Steele v. Brazier
    • United States
    • Missouri Court of Appeals
    • December 6, 1909
    ...with the original petition, though no objection was raised to the first amended petition on the ground of departure. [Purdy v. Pfaff, 104 Mo.App. 331, 78 S.W. 824.] amendment in this case of the first cause of action was not a departure. The statement of the plaintiff's cause of action in h......
  • Bentrup v. Johnson and Lehmann.
    • United States
    • Missouri Court of Appeals
    • March 5, 1929
    ...and not with intervening amended ones, and the third amended petition in this case is identical with the original petition. Purdy v. Pfaff, 104 Mo. App. 331; Steele v. Brazier, 139 Mo. App. 319. (2) Even if the third amended petition were a departure, the defendants by answering and going t......
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