Roth v. Roth

• Decision Date: 02 July 1940
• Docket Number: No. 25384.,25384.
• Court: Missouri Court of Appeals
• Parties: ROTH v. ROTH.

142 S.W.2d 818

ROTH v. ROTH.

No. 25384.

St. Louis Court of Appeals. Missouri.

July 2, 1940.

Appeal from Circuit Court, Audrain County; William C. Hughes, Judge.

"Not to be reported in State Reports."

Action by Anna Roth executrix of the estate of Charles E. Roth, against O. G. Roth to recover on a note and other sums of money. From a judgment for defendant, plaintiff appeals.

Affirmed.

Otto F. Karbe and Albert E. Hausman, both of St. Louis, for appellant.

George P. Adams, of Mexico, for respondent.

BENNICK, Commissioner.

This is an action by plaintiff, Anna Roth, executrix of the estate of her deceased husband, Charles E. Roth, against defendant, O. G. Roth, the surviving brother of the deceased.

The action is in two counts, the first upon a promissory note for the principal sum of $1,000, executed by defendant on August 6, 1931, in favor of the deceased, bearing interest at the rate of seven per cent per annum, and by its terms payable one year after date; and the second for the recovery of the amount of $2,850, with interest, representing the aggregate of four items or sums of money allegedly loaned to defendant by the deceased at intervals between January 7, 1933, and March 1, 1936.

So far as the record discloses, there was no attack by defendant upon the form or sufficiency of either of the counts of the petition.

For his answer to the first count, after admitting the execution and delivery of the note sued on, defendant denied that the note was "an outstanding obligation or indebtedness owing by defendant to plaintiff", and then, by way of further answer, alleged that the deceased "long prior to his death did cancel the obligation set forth in said note, and that from and after said cancellation of said note the same has been, and is now, null, void, and fully satisfied".

The answer to the second count was merely a general denial, as was likewise plaintiff's reply to the answer made to the first count.

Tried to a jury, a verdict was returned in favor of defendant on both counts of the petition; and from the judgment which was rendered in conformity therewith, plaintiff has duly perfected her appeal to this court.

The case grows out of the relations between the two brothers, one of whom, the deceased, came to St. Louis and prospered in the meat packing business, while the other, the defendant, located with his family on a farm near Laddonia, Missouri, which it appears he was able to maintain only with substantial financial assistance from the deceased, which was not only freely given, but was indeed pressed upon defendant, as necessities of one sort or another would arise from time to time. Certain of the contributions were for the purpose of making principal or interest payments on defendant's farm; others were for the purpose of seed, live stock, and the like; and so it was that in the last six or seven years preceding the death of the deceased on April 2, 1937, he concededly paid over to defendant the sums of money involved in the two counts of the petition.

As for the note sued on in the first count of the petition, defendant sent the same to the deceased voluntarily, without having been requested to do so; and shortly thereafter the deceased wrote one of his periodic letters to defendant, stating, in effect, that he had sent the money to help defendant out and did not feel that the latter owed him anything, and that he had not intended for a note to be executed and wished that defendant had not sent it to him.

While several letters from the deceased to defendant were read in evidence, this particular letter could not be produced, having been unfortunately destroyed by defendant's daughter, long prior to the inception of this controversy, when she was engaged in cleaning out a buffet in which the family's old letters and the like were laid away. It was shown, however, that in accordance with the usual custom which prevailed with respect to communications from the deceased, the letter had been read by the entire family; and its contents were proved by the testimony of defendant's wife, son, and daughter, all of whom had read the letter at the time of its receipt, and had personal recollections of what the letter had contained. Upon plaintiff's objection, defendant himself was prevented from testifying, due, of course, to the fact of the death of his brother, who was the other original party to the contract or cause of action in issue and on trial.

It was shown that about Labor Day of 1934, while the deceased was visiting defendant on his farm, a conversation was had between the two with respect to the matter of their financial relations. Defendant had received a check for some $270 for live stock which he had shipped to market, and insisted upon turning it over to the deceased by way of partial repayment of the amounts theretofore advanced to him by the deceased. Both brothers seem to have been very honorable men, and there is an abundance of evidence in the record to indicate that in aiding his less fortunate brother with financial assistance from time to time, the deceased very tactfully sought to avoid any offense to defendant's self-respect, which the latter was ever anxious to maintain. Indeed, it would seem that this commendable solicitude of the one brother for the other was largely the occasion for this lawsuit, since otherwise there would have been no necessity for the pretense of evidencing a debt which it is to be inferred that the deceased had not intended to be so regarded, and which defendant undoubtedly knew that he was not expected to repay.

Upon the tendering of the check to him, the deceased at first declined it, but at defendant's urging, finally accepted it with the understanding that he would hold the proceeds until the following spring, when he would return the money to defendant if the latter should have need for it at that time.

When the question of the note was brought up in the course of the same conversation, the deceased stated that he did not intend for defendant to pay it, and would return it to defendant as soon as he could find it. He further stated that he had searched for the note several times, but had been unable to locate it, and did not believe that it was in his safe deposit box, since he had no recollection of having ever taken it down to the bank.

In the latter part of December of the same year, the matter of the note again came up while defendant and his son were visiting the deceased at his home in St. Louis. Stating once more that he had never found the note but would return it to defendant as soon as he was able to locate it, the deceased made a further search in an adjoining room where he kept valuable papers around the house, but again failed to put his hands upon it.

At the time of the deceased's funeral, defendant came down to St. Louis, and in a conversation with plaintiff, the widow of the deceased, expressed concern over the fact that the note and chattel mortgage securing it had never been returned to him during the lifetime of his brother.

Some time thereafter, when an inventory was made of the estate of the deceased, the note and chattel mortagage were found in his safe deposit box along with a memorandum book in which he had written down the dates and amounts of the four contributions sued for in the second count of the petition; and when plaintiff was apprised of such discovery, she wrote defendant, stating, among other things, "I found the papers that you were so werry [worried] about, and I think every thing will be all right". Pressed on cross-examination as to what she had meant by the statement, "I think every thing will be all right", she offered the explanation that she had merely meant that both she and defendant would be glad to know that the note and mortgage had been found, and asserted that she had not intended to convey the idea by her letter that she would make no effort to collect the note.

So much for the evidence from which the jury found that defendant was not liable to plaintiff upon the cause of action set up in either of the counts of the petition.

Passing to the matters assigned as error, plaintiff first complains of the giving of defendant's instruction A, as follows:

"The Court instructs the jury that if you find and believe from the evidence that on or prior to the 6th day of August, 1931, Charles Roth delivered to Otto Roth the sum of $1000.00, intending the same as a gift, and that thereafter the said Otto Roth did on or about August 6th, 1931, deliver to Charles Roth his promissory note therefor being the note here in suit, and that thereafter the said Charles Roth wrote to Otto Roth a letter in which he stated that he did not consider Otto Roth owed him any money, and that he did not want the note and would return the note to Otto; and if you further find and believe from the evidence that thereafter, to-wit: on or about Labor Day of 1934, Charles Roth again told Otto Roth that he did not want the note, and that he would return it to him when he found it, but that he had been unable to find it; and if you further find that on or about Christmas week of 1934, the said Charles Roth told Otto Roth that he did not want the note, and then tried to find it and was unable to find it, and that he did not then and there deliver it to Otto Roth for the reason that he could not find it; and if you further find and believe from the evidence that the said Charles Roth, by these acts and...