Schwalbert v. Konert

• Citation: 76 S.W.2d 445,230 Mo.App. 811
• Parties: FRANK SCHWALBERT, ADMINISTRATOR OF THE ESTATE OF WILLIAM SCHWALBERT, DECEASED, APPELLANT, v. BENJAMIN KONERT AND ANNA KONERT, HIS WIFE, RESPONDENTS
• Decision Date: 04 December 1934
• Court: Court of Appeal of Missouri (US)

76 S.W.2d 445

230 Mo.App. 811

FRANK SCHWALBERT, ADMINISTRATOR OF THE ESTATE OF WILLIAM SCHWALBERT, DECEASED, APPELLANT, v. BENJAMIN KONERT AND ANNA KONERT, HIS WIFE, RESPONDENTS

Court of Appeals of Missouri, St. Louis

December 4, 1934

Appeal from Circuit Court of Jefferson County.--Hon. E. M. Dearing Judge.

Reversed and remanded.

R. E Kleinschmidt for appellant.

(1) Action for money had and received lies whenever defendant has received or obtained possession of the money of another which in equity and good conscience he ought to pay to plaintiff and privity of contract is not required. Clifford Banking Co. v. Donovan Commission Co., 262 Mo. 262; State ex rel. v. Trimble et al. (Mo.), 289 S.W. 796, l. c. 803; Richardson v. Drug Co., 92 Mo.App. l. c. 520. (2) Where an administrator is a party, the other party is not a competent witness for any purpose, unless the contract in issue was originally made with a person who is living and competent to testify, except as to such acts and contracts as have been done or made since the appointment of the administrator. Sec. 1723, R. S. Mo. 1929; Leeper v. Taylor, 111 Mo. 312, l. c. 323; Kersey v. O'Day, 173 Mo. 560, l. c. 569 et seq.; Lohnes v. Baker, 156 Mo.App. 397, l. c. 401, 402; Weiermueller v. Scullin, 203 Mo. 468, l. c. 474; Davis v. Robb, 10 S.W.2d 680, l. c. 682; Thompson v. Bratcher, 8 S.W.2d 1027, l. c. 1029; City of St. Joseph ex rel. v. Baker, 86 Mo.App. 310, 314. (3) Any relevant, competent and material evidence tending to rebut the claim of gift is admissible, hence proof of the extent of deceased's property at the time of alleged gift was admissible. 28 C. J., p. 673, sec. 76, note 86; Liscomb v. Manchester, etc., R. Co., 70 N.H. 312; Anderson v. Dorland (Ky.), 234 S.W. 205; Tucker v. Tucker, 138 Iowa 344; Deal v. Moseley, 147 Ga. 523; Feil v. First Natl. Bank (Mo. App.), 269 S.W. 936, l. c. 942. (4) The general rule requiring gifts inter vivos to be established by conclusive evidence is especially applicable where the alleged gift is not asserted until after alleged donor's death, and gifts thus asserted are regarded with suspicion by the court. Jones v. Falls, 101 Mo.App. 536; Reynolds v. Hanson (Mo.), 233 S.W. 8; Foley v. Harrison, 233 Mo. 460, l. c. 583 et seq.; Gosney v. Costigan (Mo.), 33 S.W. 947, l. c. 952; L.R.A. 1916E, p. 285 (Fouts v. Nance, 155 P. 610); 20 Cyc. 5, p. 1225, note 71. (5) Declarations and admissions of an alleged donor in respect to a gift are not in themselves sufficient evidence to establish the gift. 28 C. J., sec. 87, p. 681. (6) A gift inter vivos must be accepted by the donee at the time of delivery and before the death of alleged donor, hence first and second instructions given on behalf of respondents are erroneous. Gosney v. Costigan (Mo.), 33 S.W.2d 947, l. c. 952; Martin v. Bank, 206 Mo.App. 629, 227 S.W. 656, l. c. 657; In re Martin's Estate (Mo. App.), 266 S.W. 750, l. c. 751; Schneider v. Schneider, 107 N.Y.S. 792; 2 Words & Phrases (2 Series), p. 737; Lowe v. Hart, 93 Ark. 548.

Terry, Terry & Terry for defendants.

(1) The essentials to pass title to property by gift inter vivos are: There must be an intention to give in such a way as to transfer the title at the time, and this intention must be manifested by delivery of possession of the property to the donee. Reynolds v. Hansen, 191 S.W. 1030, l. c. 1031, and the many cases there cited; Cremer v. May, 8 S.W.2d 110, l. c. 113; Townsend v. Schaden, 275 Mo. 227, l. c. 242. (2) Declarations and admissions of the alleged donor in respect to a gift are admissible in evidence of the donor's intention. They are to be weighed by the jury and when considered together with other corroborative evidence showing a delivery of possession and a parting of all dominion or interest in the subject of the gift, may be sufficient to establish the gift. Townsend v. Schaden, 275 Mo. 227, l. c. 243; 28 C. J., sec. 87, pp. 681, 682; 28 C. J., sec. 89, p. 683. (3) Where the evidence of the gift rests entirely on statements of a father though made twelve years before the trial and when coupled with other statements testified to by other witnesses the case must go to the jury. Reynolds v. Hansen, 191 S.W. 1030, l. c. 1031. (4) The general rule is that while the witness is disqualified from testifying as to the matter of the negotiation between him and the dead party, he is not incompetent or disqualified as a witness as to other matters taking place which did not occur between him and the deceased party or agent. Diggs v. Henson, 181 Mo.App. 34, l. c. 43, 44; Banking House v. Rood, 132 Mo. 257, l. c. 263; Brewery Co. v. Rohling & Menke, 133 Mo.App. 65, l. c. 67, and the many cases there cited; Carroll v. United Railways Co., 157 Mo.App. 247, l. c. 275, and the many cases listed, cited and commented upon; Hughes v. Renshaw, 282 S.W. 1014, l. c. 1020; Knickerbocker v. Athletic Tea Co., 285 S.W. 797, l. c. 799, 800; Elsea v. Smith, 273 Mo. 396, l. c. 408. (5) Where the surviving party to a proceeding is placed on the witness stand a general objection to the admission of his testimony based on the death of the other party should be overruled. In short the portion of the statute under review is not one of absolute exclusion but of limitation. Until the limit has been reached such witness' testimony is as competent, except for the inhibited purposes, as that of any other. Elsea v. Smith, 273 Mo. 396, l. c. 408; Jobe, Admx., v. Buck & Moseley, 224 Mo.App. 621, l. c. 626-627; Robertson Bros. v. Garrison Estate, 21 S.W.2d 202, l. c. 203. (6) Where the objection incorrectly stated the reason for objections there is only a general objection, because the purpose of requiring specific objections to testimony is to give definite notice of the objector's grounds for the same to the trial court and opposing counsel, that the one may be enabled to rule intelligently thereon and that the other may present arguments against its admission; and, where the wrong objection has been made and the objector fails to object to objectionable question it may well be presumed the right to make the correct objection is waived. Elsea v. Smith, 273 Mo. 396, l. c. 409; also see 408; Heinbach v. Heinbach, 274 Mo. l. c. 315; Morton v. Lloyd Construction Co., 280 Mo. 360, l. c. 380, and the many cases there cited.

McCULLEN, J. Hostetter, P. J., and Becker, J., concur.

OPINION

McCULLEN, J.

This is a suit for money had and received. It was brought by appellant, hereinafter called plaintiff, as administrator of the estate of William Schwalbert, deceased, against respondents, hereinafter referred to as defendants, to recover the sum of $ 1000, alleged to have been received by defendants as a loan on February 12, 1932, from the deceased. A trial before the court and a jury resulted in a verdict and judgment for defendants. Plaintiff appeals.

Plaintiff's petition alleged that William Schwalbert, deceased, on or about February 12, 1932, agreed to lend to defendants, and they agreed to borrow from him, the sum of $ 1000, with interest from said date at the rate of six per cent per annum; that in accordance with said agreement a promissory note was prepared on the date named, in the amount mentioned, payable to the deceased one year after date, with interest as above stated; that thereupon deceased paid defendant the sum of $ 1000 on the agreement of defendants to repay deceased said sum and that defendants were to procure the signature of one Henry Konert as surety on said note which was to be signed by defendants as makers thereof.

The petition further alleged that the note was never delivered to the deceased but was left in the hands of defendants for the reason that before the signature of the surety mentioned could be obtained, the deceased disappeared from his usual place of abode and died on or about February 12, 1932.

It was also alleged that plaintiff as administrator made demand upon defendants for the sum mentioned and also for the delivery of said note, but that defendants refused to pay and refused to deliver the note.

The answer of defendants contained three counts. The first count alleged that William Schwalbert, deceased, was the stepfather of defendant Anna Konert, and that at the time of the marriage of said deceased to said defendant's mother there was an agreement between the mother of said defendant and the deceased that he would give defendant Anna Konert not less than $ 1000 if Anna Konert would live with him in his home and treat him as his children treated him; that said Anna Konert during all of the time that she remained in the home of said deceased worked faithfully and diligently, was kind and affectionate to him, helped to do the house work, and in all respects performed her part of said agreement; that on February 12, 1932, the deceased, in performance of his part of said agreement, gave the defendants $ 1000, which was the amount he owed the said Anna Konert for the services rendered by her.

The second count of the answer, after pleading the relationship of the parties, the agreement and the services rendered by defendant Anna Konert, as shown in the first count, alleged that the deceased gave defendants $ 1000 because of the services of said Anna Konert to him and because of love and affection between them. The third count of the answer pleaded a gift causa mortis.

The reply of plaintiff denied each and every allegation of new matter contained in the answer.

Plaintiff urges a reversal of the judgment herein on the ground that the court erred in refusing to give a peremptory instruction directing a verdict for plaintiff, which he requested at the conclusion of all the evidence. A proper consideration of this point makes it necessary for us to review the evidence.

The evidence disclosed that ...