Rankin v. Gaugh

• Decision Date: 21 May 1928
• Docket Number: No. 16212.,16212.
• Citation: 6 S.W.2d 640
• Parties: RANKIN v. GAUGH et al.
• Court: Missouri Court of Appeals

6 S.W.2d 640

RANKIN v. GAUGH et al.

No. 16212.

Kansas City Court of Appeals. Missouri.

May 21, 1928.

Appeal from Circuit Court, Jackson County; Charles R. Pence, Judge.

"Not to be officially published."

Suit by Earle Rankin against George M. Gaugh, Walter W. Gaugh, and Thomas J. Seehorn, administrator de bonis non of the estate of George G. Gaugh, deceased. From an adverse judgment, plaintiff appeals. Affirmed.

A. N. Gossett, of Kansas City, for appellant.

Hackney & Welch, of Kansas City, for respondents.

BLAND, J.

This is a suit in replevin in which plaintiff seeks to regain the possession of a certificate for 583 1/3 shares of the capital stock of the Kansas Flour Mills Company, a corporation. At the commencement of the suit the sheriff took the certificate from the defendants, George M. and Walter W. Gaugh, and delivered it to plaintiff under the writ. The trial resulted in a verdict and judgment for defendants and a finding that defendant Seehorn, administrator of the estate of George G. Gaugh, deceased, was entitled to the return of the stock certificate and the value of his special interest therein was fixed at $2,500 with interest from April 13, 1922, making a total of $2,942.45. Judgment was rendered that plaintiff return to defendant Seehorn as administrator the certificate or pay him its value at his election, and for costs. Plaintiff has appealed.

The answer of defendants, George M. and Walter W. Gaugh, consists of a general denial. The answer of the defendant administrator consists of a general denial and a plea that the possession of the stock certificate was held as a pledge made by plaintiff to the deceased, George G. Gaugh, during his lifetime to secure a loan of $2,500 made to plaintiff by deceased. The answer of the administrator also demands the return of the certificate of stock, the value of the special interest being laid at $2,500 and interest.

The evidence shows that plaintiff, who resided in New York City, sent his wife, who was the daughter of George G. Gaugh, deceased, to Kansas City for the purpose of procuring a loan of $5,000 on the certificate of stock in question, belonging to plaintiff; that she arrived at that place on July 2, 1922; that on July 3, 1922, she applied to her father for a $5,000 loan on the stock certificate; that she and her father went to the Kansas Flour Mills Company in Kansas City and were unable to sell the stock or obtain a loan thereon from that company; that deceased thereupon agreed in the presence of his son, the defendant, George M. Gaugh, to lend plaintiff the sum of $2,500 and the son told her that he would try to raise her more money later on; that the $2,500 loan was made by deceased and that his daughter turned over the stock certificate to him to be held as collateral security for the loan. It appears that no note was given. Plaintiff was wired to make a draft for $2,500 upon deceased, which he did, and the draft was paid on July 8, 1922, by deceased. It was admitted at the trial that the stock certificate belonged to plaintiff and when it was brought to Kansas City it had been indorsed and signed in blank by plaintiff and remained so at the time of the trial. Defendant, George M. Gaugh, testified that the certificate of stock was turned over to him by his father about a week before plaintiff's wife returned to New York, which was on August 30, 1922; that after she returned to New York she wrote said defendant urging him to see her father and that he and her father borrowed the additional money as she and her husband were in urgent need of it.

Mrs. Rankin, testifying by deposition for plaintiff, stated that the $2,500 in question was a gift from her father to her and not a loan. This was denied by the defendant, George M. Gaugh, who testified that he was present when the arrangement was made and that it was a loan and that the stock certificate was placed with his father as collateral security for the loan and that his father gave him the certificate that he might arrange to get a loan of $5,000 upon it; that he did arrange to get a loan of $5,000, borrowing the money himself to lend to plaintiff and Mrs. Rankin, the two to sign a note therefor to the witness; that out of this $5,000 deceased was to be repaid his $2,500; that he wired either plaintiff or his wife on September 11, 1922, concerning the securing of the $5,000 and the conditions upon which he would lend the money but got no answer. The evidence shows that the father died early on the morning of September 12 at Excelsior Springs.

Prior to Mrs. Rankin's return to New York deceased gave her the following writing:

"August 29, 1922. Received of Karolee Rankin 583 1/3 shares Kansas Flour Mills Co. common stock to be kept in my deposit box for safekeeping and returned to her in case of my death.

                          [Signed]  Geo. G. Gaugh
                

"Witness Karolee Rankin.

"In event of my death to be delivered to Earle Rankin above 583 1/3 shares K. F. M. Co. common stock.

                                [Signed]   Karolee Rankin."
                

Mrs. Rankin testified that late in the day of September 12th she received a wire that her father had died and she and her husband immediately came to Kansas City, arriving there on or about September 14, 1922. She and plaintiff testified that they were met at the station on their arrival by defendant, George M. Gaugh, who took them to the house of his brother, Walter W. Gaugh. Plaintiff testified that after arriving at the house both brothers stated that they had the certificate of stock in question in their possession; that Walter W. Gaugh had taken it from their father's safe deposit box on the day of the latter's death. Mrs. Rankin testified that George M. Gaugh made this statement. Defendant, George M. Gaugh, denied making any statement to plaintiff or his wife about the certificate of stock or about his brother taking anything out of the safe deposit box. He testified that he had the certificate of stock in his custody until his father's death and kept it in his own safe deposit box in the Missouri Savings Bank. He testified that he did not know until after his father's death of the said writing, dated August 29, 1922, given by his father to his sister, Karolee Rankin.

Defendant, Walter W. Gaugh, testified that he never had the certificate in his possession; that he did not take it out of his father's safe deposit box; that he had never made any statement that he had done so or had taken anything else out of the box; that he last saw the certificate about July 3, 1922; that he and his father were "joint lessees" of a safe deposit box in the Commerce Trust Safe Deposit Company; that he was in this box on September 12, 1922, after he had learned of his father's death but took out nothing from it except some private papers belonging to the witness, consisting of letters from the witness' first wife to himself and an insurance policy on her life; that he did not molest anything else in the box; that he did not recall going from the Commerce Trust Safe Deposit Company to the safe deposit box in the Missouri Savings Bank. It appears that he and his brother had a box in their joint names at the latter bank. The two companies were located in the same block.

The assistant manager of the Commerce Trust Safe Deposit Company, testifying for plaintiff, stated that a box of this company was rented to George G. and Walter W. Gaugh and that the record of that company showed that Walter W. Gaugh was in the vault at 2:48 p. m. of Sept. 12th; that all the records of the entries into the box during the year 1922 were signed by deceased except the one on September 12th. The chief clerk of the Missouri Savings Bank testified that there was a safe deposit box in that bank held by George M. and Walter W. Gaugh and the record of the bank showed that the box was entered on Sept. 12 at 2:56 p. m. but the records did not disclose who entered the box at that time.

The evidence shows that George G. Gaugh, deceased, was married on two occasions and died leaving a wife and a former wife from whom he was divorced and that the latter had remarried; that the former wife was the mother of deceased's children mentioned herein; that on the death of deceased, his wife, Maude Gaugh, was appointed administratrix of his estate; that she was removed on Dec. 30, 1922, and defendant, George M. Gaugh, was appointed administrator de bonis non; that he was removed and the defendant, Thomas J. Seehorn was appointed administrator on July 15, 1924, and was administrator at the time of the trial of this suit.

The testimony shows that aside from the $2,500 in question, plaintiff owed deceased a $500 note. Defendant, George M. Gaugh, testified that the first time he disclosed to the probate court that he held the $500 note and the certificate of stock as collateral for the $2,500 debt of plaintiff, was in his semiannual settlement in that court made on March 12, 1923, after this suit was commenced; that he testified concerning these papers in a deposition that was taken in other litigation between the parties in the latter part of October, 1922, and that that was the first time that he had informed the administratrix concerning them; that he kept the $500 note in his possession without disclosing it to Maude Gaugh, the administratrix of his father's estate "because it was a sort of a joke and they (plaintiff and his wife) never would pay it and we had it at the office." He testified that he did not disclose to the administratrix that he had in his possession the stock certificate because plaintiff and his wife "claimed they did not owe it and said they weren't going to pay it." Plaintiff testified that when he and his wife arrived in Kansas City after deceased's death, they were informed by...