Sandwich Manufacturing Co. v. Bogie

• Decision Date: 30 July 1927
• Docket Number: 25945
• Citation: 298 S.W. 56,317 Mo. 972
• Parties: Sandwich Manufacturing Company v. Mord M. Bogie, Administrator of Estate of Milton H. Losee, Appellant
• Court: Missouri Supreme Court

298 S.W. 56

317 Mo. 972

Sandwich Manufacturing Company v. Mord M. Bogie, Administrator of Estate of Milton H. Losee, Appellant

No. 25945

Supreme Court of Missouri

July 30, 1927

Motion for Rehearing Denied September 16, 1927.

Appeal from Jackson Circuit Court; Hon. Samuel A. Dew Judge.

Reversed.

Frank P. Sebree and Sam B. Sebree for appellant.

(1) The action was not for an accounting, but for specific items of alleged indebtedness. (2) Said items are not within the claims made by the plaintiff in the original or the amended demand and said items, and each of them, were barred by the statute of limitations. (3) Said item in said paragraph three of the amended demand is a new and different claim from the cause of action set forth in the original demand and is barred by the statute of limitations relating to demands against the estates of deceased persons. The original demand of the claimant was for money of the claimant alleged to have been collected and used by the deceased for his own personal use without the consent of the claimant, while the cause of action set forth in the third paragraph of the amended demand of the claimant and the evidence upon which the finding of the referee and the finding and judgment of the court are based entirely relates to the value of the twine purchased by said Losee as agent of the plaintiff and not found on hand at the death of the said Losee, and there was no evidence in the case proving or tending to prove that the said amount was money collected by said Losee, or, converted to his own use.

Bowersock Fizzell & Rhodes for respondent.

(1) It is the duty of an agent to keep his principal's funds separate; if he does not do so, it is presumed that the whole fund is that of the principal. 2 C. J. 741, sec. 407. (2) The burden is upon him to show what part is his. National Bank v. Ins. Co., 104 U.S. 67; Atkinson v Ward, 2 S.W. 80; Ill. Linen Co. v. Hough, 91 Ill. 63. (3) The burden of proving the credits claimed by him is on the agent. Young v. Powell, 87 Mo. 128; Quirk v. Quirk, 155 F. 205; Ill. Linen Co. v. Hough, 91 Ill. 69; Farmers Warehouse Co. v. Montgomery, 99 N.W. 777; Little v. Phipps, 94 N.E. 261; McCulloch v. Tomkins, 49 A. 476; Dodge v. Hatchett, 45 S.E. 668. (4) The report of a referee, confirmed by the trial court, will not be disturbed if there is substantial evidence to sustain it. Williams v. Ry. Co., 153 Mo. 489.

OPINION

Graves, P.J.

In the statement of counsel for the appellant much is said about there being a difference between the cause of action filed in the probate court, and the cause of action stated in an amended statement filed after appeal to the circuit court. In this connection it is said that the sundry items, shown by the evidence, in proving the amended statement of the cause of action, are barred under the statutes. We do not find this claim as to the statute of limitations fully briefed, but that we may have the full case before us, both pleadings will be given.

The original statement filed in the probate court reads:

"Original Demand Against Estate. Comes now the Sandwich Manufacturing Company and states that it is a corporation organized and existing under and by virtue of the Laws of the State of Illinois, with its principal office and place of business in Sandwich, Illinois; that it has qualified to do business in the State of Missouri, and has for many years maintained a branch office in Kansas City, Missouri; that Milton H. Losee, deceased, was for many years prior to his death the agent for the company at Kansas City, Missouri, and manager of said branch office; that said Milton H. Losee died on the 27th day of October, 1915, and thereafter his will was duly admitted to probate in this court, and Charles R. Pence is now the duly appointed, qualified and acting administrator with the will annexed of said estate; that as such agent and local manager said Milton H. Losee had at all times in his possession and under his control funds of the company and collected from time to time sums of money due said company; that without authority from the company and without its knowledge or consent said Milton H. Losee used funds of the company under his control for his own personal uses and transactions, and failed to report or in any way account to the company for the collection and receipt of large sums of money belonging to it; that the company did not discover until after the death of said Milton H. Losee the fact that he had used funds of the company for his own personal uses and transactions and had failed to report or account for moneys collected and received by him for the company; that by reason of having used funds belonging to said Sandwich Manufacturing Company without its authority, knowledge or consent for his own personal uses and transactions as aforesaid, said Milton H. Losee was at the time of his death and his estate still is indebted to said company in the sum of $ 30,465.45.

"Wherefore, your petitioner asks that its claim be allowed against the estate of said deceased for the sum of $ 30,465.45."

The amended demand thus reads:

"Amended Demand Against Estate. Comes now the Sandwich Manufacturing Company and states:

"1. That it is a corporation organized and existing under and by virtue of the laws of the State of Illinois with its principal office and place of business in Sandwich, Illinois that it has qualified to do business in the State of Missouri, and has for many years maintained a branch office in Kansas City, Missouri; that Milton H. Losee, deceased, was for many years prior to his death the agent of the company at Kansas City, Missouri, and manager of said branch office; that said Milton H. Losee died on the 27th day of October, 1915, and thereafter his will was duly admitted to probate in this court and Henry L. Jost is now the duly appointed, qualified and acting administrator with the will annexed of said estate, having succeeded Charles L. Pence as such since the filing of the original claim herein.

"2. That as such agent and local manager, said Milton H. Losee had at all times in his possession and under his control funds of the company, and collected from time to time sums of money due to said company, for all of which funds and money said Losee was as such agent and manager bound to account to said company; that between the 15th day of April, 1913, and the date of his death, said Losee, among many other transactions as agent and manager, collected on behalf of the company various sums of money, being more than one hundred and thirty items and totaling $ 29,203.03; that said collections were made for merchandise of the company sold by said Losee as its agent, in part on open accounts representing debts due the company for such merchandise, in part on notes given by customers to the company for such merchandise, and in part on accounts representing goods of the company consigned by him as its agent; that such sales and consignments and notes represented by said items of collection (but not the collections themselves) appear in the various ledgers, note registers, invoice books, cash books, report books and statement books of the company kept by said Losee, or under his direction, each of the separate transactions being entered in its different aspects in all or a large number of said various books and records; that none of said collections were entered upon the books of the company kept by said Losee or under his direction, except upon the bank books showing the accounts in the name of the company hereinafter referred to, and that no report or account whatever was made or rendered by said Losee to said company covering said collections; that said collections were deposited by said Losee in the bank accounts of said company, but no report of any kind was made to said company, thereof; that said Losee from time to time, without the knowledge or consent of said company, drew moneys from said bank accounts and disbursed the same for his own personal uses and transactions, with the result that no accounting of said items so collected was ever made to said company; that said Losee and his estate has been and is now indebted to the company by reason of the matters set forth in this paragraph in an amount exceeding $ 29,203.03.

"3. That in February, March and May, 1915, said Losee bought, in the name and upon the credit of the company, 250,000 pounds of twine; of such amount, the purchase of 90,000 pounds, 64,450 pounds were sold by said Losee on behalf of the company and the sales reported to it and duly accounted for; 25,550 pounds remained on hand at the date of his death. That the balance of said purchases, to-wit, 160,000 pounds, was not reported to said company, but was made without its knowledge or consent and it did not learn thereof until after the death of said Losee, whereupon it was obliged to and did pay for the same in full; that of said 160,000 pounds of twine there was on hand at the time of his death 51,850 pounds which was accepted by the company; that the remaining 108,150 pounds were sold by said Losee to various persons and collections made by him without any account being rendered by him to the company either of said sales or said collections; that certain of said sales were not collected by said Losee, but were represented by accounts receivable at the time of his death, which accounts were accepted by the company; that said Losee is entitled to credit in his accounting with the company for the amount of these accounts, but that after the allowance of said credit, said Losee and his estate has been and is now indebted to the company by reason of the matters set forth in this paragraph in an amount exceeding $ 3,363.57.

"4. That during the year 1915, said Losee failed to report or in any way...