Raymuth Real Estate & Building Co. v. Robinson

• Citation: 204 S.W. 276,199 Mo. App. 515
• Decision Date: 04 June 1918
• Docket Number: No. 15145.,15145.
• Court: Missouri Court of Appeals
• Parties: RAYMUTH REAL ESTATE & BUILDING CO. v. ROBINSON.

204 S.W. 276

199 Mo. App. 515

RAYMUTH REAL ESTATE & BUILDING CO. v. ROBINSON.

No. 15145.

St. Louis Court of Appeals. Missouri.

Argued and Submitted May 8, 1918.

Opinion Filed June 4, 1918.

Rehearing Denied June 19, 1918.

Appeal from St. Louis Circuit Court; Wm. M. Kinsey, Judge.

Suit by the Raymuth Real Estate & Building Company, a corporation, against C. J. Robinson, administrator cum testamento annexo of the estate of Sylvester J. Fisher, deceased. From judgment of dismissal, plaintiff appeals. Affirmed.

Thos. S. MePheeters, of St. Louis, for appellant. John M. Wood, of St. Louis, for respondent.

REYNOLDS, P. J.

This is a suit in equity, by which it is attempted to charge the assets of the estate of Sylvester J. Fisher, deceased, in the hands of his administrator, with a special lien against those assets, on the claim that moneys collected by Fisher in his lifetime, as rentals on the property of plaintiff, went to swell and increase the assets of Fisher during his lifetime, and had passed into the possession and control of defendant as administrator, and "are now in the possession and control of said administrator and so mingled with the funds, property and assets of said Fisher in his hands that it is not possible to separate, identify or distinguish plaintiff's funds in his possession, or that said funds of plaintiff were paid out by said Fisher during his lifetime in the course of his business and used in paying his debts and obligations of various kinds, thereby enhancing the value of the estate received by this defendant as administrator and plaintiff declares that it believes that either said funds of plaintiff as aforesaid actually passed into the hands of said administrator as aforesaid, or that said funds of plaintiff were paid out by said Fisher during his lifetime as aforesaid, but this plaintiff is not informed as to which of said alternatives is true," and that the estate of Fisher is insolvent and that there are large claims, exceeding its assets, against it.

The cause was tried before the court as in equity.

At the trial of the cause, the defendant administrator being sworn as a witness in behalf of plaintiff, plaintiff offered and read in evidence the answer of defendant, as also a former answer, but that is not in the abstract.

Counsel, after stating the formal averments of the petition as to incorporation of plaintiff and appointment of defendant, and that he is now in charge of the estate, having taken possession of the assets, real and personal, owned by Fisher at the time of his death, and that up to the time of his death he was engaged in the business of a real estate agent, under the name of Fisher & Company, and as such was in charge of the apartment building mentioned, collecting rentals thereon and accounting to plaintiff and remitting them monthly to plaintiff," and that at the time of his death was in possession of $1,056.66, representing rentals belonging to plaintiff, and that he had mingled these funds with his own and other funds, so that they cannot be now distinguished, summarized the testimony of the administrator, to the effect that he is such administrator and had taken charge of such assets as he could find and sold and converted them into cash; that in his last annual settlement, filed just a week previous to the trial, that is, about March 28th, 1915, more than three years after the death of said Fisher, he had on hand in cash the sum of $8,187.89;that in addition he held 193 shares of the stock of Fisher & Company Real Estate Company, a corporation, which he thought ought to be worth about $100.00 a share. The witness testified that Fisher carried on his real estate business under the name of Fisher & Company, and that he had a separate corporation, a holding company called the Fisher & Company Real Estate Company, in which, as stated, he held 193 shares of stock of the par value of $100.00 per share, and the corporation was capitalized for $20,000.00.

He further testified that claims had been allowed against the estate up to October 16th, 1913, amounting to $65,660.98;that of these claims there was only one first-class claim, which was for funeral expenses, amounting to $705.00, and that there was only one second-class claim for medical services, amounting to $184.00, and that there were no claims of the third and fourth class, but that all the claims allowed, except the two mentioned, were of the fifth and sixth class.

He testified further that there were no, suits pending in which a similar claim for preference was made.

He further testified that no cash came into his hands as administrator and that he took over nothing but real property and personal property other than cash.

On cross-examination defendant testified that he had received no money out of the safe or from the National Bank of Commerce, representing money collected for the account of Fisher, himself, or any of Fisher's clients. Practically all of the general or fifth and sixth class claims allowed against the estate were similar to plaintiff's, that is to say, rents collected by Fisher and deposited and mixed with his personal funds.

He further testified that a judgment was secured by Joseph Wright, executor of one Susie M. Rodgers, for $13,000, including interest and costs, and that judgment was against Fisher personally and against the Fisher & Company Real Estate Company, a corporation; that it was a reference case and the case was pending in court on the exceptions to the referee's report at the time of Fisher's death and culminated in judgment after his death. That between January 3rd and January 20th, Fisher collected for plaintiff, on account of rents, the sum of $1,056.36, and that amount was placed in Fisher's safe or deposited in the Bank of Commerce or both, and mingled with Fisher's personal funds and the funds of other clients; that during January, 1912, and for many years prior to his death, clients of Fisher were paid by him either in cash taken out of the funds so mixed and deposited in the safe, or by check against the funds so mixed and deposited in his bank accounts; and a part of the personal expenses of Fisher were also paid out of these funds in the same way;that on January 1, 1912, Fisher had in his safe the sum of $130.90, and in bank $574.95, being his own money, in addition to cash in the safe and on deposit belonging to clients; that during the month of January, prior to his death, Fisher, in addition, collected for his personal account and mingled with his clients' funds the further sum of $561.11; that during the same month he collected for his clients alone $30,003.86, $4,651.00 of which amount was collected between January 20th and 23rd.

Whereupon counsel for plaintiff stated that to save time he would admit that all of the allegations in the answer as regards the amounts collected or paid out or mingled were correct, including the source from which the money came, and the dates.

Witness Robinson, continuing, testified that the value of the stock of the Fisher & Company Real Estate Company, which he held amounted to about $16,000, and was in the form of cash; that the corporation was a defendant in the suit brought by Wright, executor of Susie M. Rodgers, in which case judgment for $13,000 was recovered; that it was also a defendant in the McCausland Case, which was for about $30,000, pending before a referee; that the McCausland Case did not proceed against Fisher as an individual or against his estate.

The above and foregoing, together with the answer was all the evidence introduced or heard in the trial of the cause.

The answer, in substance, admitted that Sylvester J. Fisher died January 23rd, 1912, testate; that by the course of dealings between plaintiff and Fisher, the latter would collect rental from the building and remit to plaintiff, after deducting his commission of one and a half per cent. as such agent. It is also admitted that it was the practice of Fisher in his lifetime, as hereafter more fully set forth, to mingle with his individual funds and trust funds collected for numerous other patrons, the rentals collected for plaintiff. It is further admitted that the estate of Fisher is insolvent and that the claims that have been allowed against the estate aggregate a sum many times larger than the assets of the estate. Further answering, however, the defendant denies that the money mentioned in the petition as having been collected and received by Fisher for plaintiff, or any part thereof, has been received, or came into the hands of defendant since his appointment as administrator, and defendant denies that the moneys of plaintiff and of other customers of Fisher and his personal funds, which were mingled and mixed in said depositories, or any part thereof had been received by defendant since his appointment as administrator of the estate, defendant averring that the only moneys he had received as such administrator had been derived from collections made for the estate and from the sale of property belonging to the estate; and that at the time of the death of Fisher, he had no money whatever on hand. Further answering, denying all the averments in the petition, except as above...