Seman v. Illgenfritz

• Decision Date: 11 February 1929
• Docket Number: No. 16454.,16454.
• Citation: 15 S.W.2d 912
• Court: Missouri Court of Appeals
• Parties: DOROTHY B. SEMAN, RESPONDENT, v. MEL ILLGENFRITZ, APPELLANT.<SMALL><SUP>*</SUP></SMALL>

15 S.W.2d 912

DOROTHY B. SEMAN, RESPONDENT, v. MEL ILLGENFRITZ, APPELLANT.^*

No. 16454.

Kansas City Court of Appeals. Missouri.

February 11, 1929.

Appeal from the Circuit Court of Pettis County. — Hon. Dimmitt Hoffman, Judge.

REVERSED AND REMANDED.

Shain & O'Bannon for appellant.

Barnett & Barnett for respondent.

BLAND, J.

This is a suit on a promissory note reading as follows:

                  "$7500     Sedalia, Mo.,   May 26, 1911
                

"On demand after date I promise to pay to the order of Dorothy Bell Illgenfritz

"THE THIRD NATIONAL BANK of Sedalia, Missouri, Seven thousand five hundred ____ Dollars, for value received, negotiable and payable without defalcation or discount, with interest from ____ no interest. "MEL ILLGENFRITZ.

                  "No. ____.       Due ____."
                

The material parts of the petition in this case read as follows: "On May 26, 1911, defendant, for value received, made, executed and delivered to plaintiff defendant's promissory note, dated May 26, 1911, whereby on demand, after date, he did promise to pay to the order of plaintiff $7500. No part of said note has been paid."

The answer, so far as material to the issues presented here, admits the signature upon the note to be that of defendant, but states that defendant "never delivered said purported note to the plaintiff, nor authorized its delivery to the plaintiff, and that said purported note is without consideration and that there has been an entire failure of all consideration; that the defendant now repudiates said note and prays the court by its judgment and decree to declare said note null and void and to discharge this defendant with his costs." The reply "denies that defendant did not deliver the said note, but states that the same was delivered for plaintiff to plaintiff's mother, who at that time, was the natural guardian of the plaintiff, and that the plaintiff's mother accepted the delivery of said note for the plaintiff, and that said note was delivered for the plaintiff to plaintiff's mother by the defendant. Plaintiff denies that said note is without consideration and denies that there has been any failure of consideration for said note."

There was a verdict and judgment in favor of plaintiff in the sum of $7500 and defendant has appealed.

The principal controversy at the trial was as to whether there was a legal consideration for the note. The evidence does not show any consideration given by the payee of the note to the maker, but plaintiff relied upon an agreement between her father (the defendant) and mother for the consideration for the note.

The evidence shows that plaintiff who is now over twenty-one years of age, and married, is the daughter of defendant and Dorothy W. Illgenfritz (now Smith); that prior to and on the 26th day of May, 1911, she was living with her parents in Sedalia; that there had been frequent quarrels and separations between her parents, her mother at times leaving the defendant.

In reference to the facts surrounding the execution of the note plaintiff's mother testified that prior to and on May 26, 1911, she had made up her mind to leave the defendant, knowing "that the break had come;" that she was a graduate of a Normal School and was capable of supporting herself but felt that plaintiff, her child, was entitled to something for her support, if she took the child, who was then five years of age; that the suggestion that the note be given was made by her then husband, the defendant; that defendant had told her before that he would not do anything for her, but that he would for the plaintiff; that on the date the note was executed he came out to the house with the note in blank and wanted the witness to stay and became angry and told her to make out the note, which the witness did, she being the author of the note except that defendant inserted the words therein "no interest." It seems that defendand at that time was without means, but that his father was a wealthy man, and plaintiff's mother took the note believing that the defendant would come into an estate at some future time.

Plaintiff's parents were not separated at the time the note was executed, and the testimony as to whether there was any immediate separation contemplated at that time is somewhat obscure. Plaintiff's mother testified, that as a part of the agreement at the time the note was signed, she was to support herself and the plaintiff; that "I relieved Mr. Illgenfritz from legal responsibility for her and me;" that the understanding was that the witness was to hold the note and give defendant another trial, and if he did not do any better the note was to go to her for plaintiff's support. The mother was asked whether it was contemplated that they should live together when the note was signed and she stated, "I do not know, I could not say, but before a great deal of time Mr. Illgenfritz talked me right back into staying as he had many times before;" that there followed a reconciliation, and that she continued to live with him until September, 1912. However, it is immaterial as to whether or not there was an immediate separation in contemplation at the time the note was given, for the reason that the undisputed testimony shows there was no separation but an immediate reconciliation. The law applicable to the situation is the same whether there was contemplated an immediate separation or not, so long as there was none at the time. This is a matter that will be hereinafter discussed.

Plaintiff's mother further testified that in September, 1912, she finally left the defendant and went to California taking plaintiff with her. Before she left she authorized an attorney in Sedalia to file suit for divorce for her, which was done. In the petition indignities were alleged as grounds for the divorce, the petition stating that the defendant had been guilty of gambling and drinking and had become so quarrelsome and abusive to plaintiff therein that her life had become unbearable; that defendant cursed and abused her and on the 26th day of August, 1912, told her to leave home.

The witness further testified that after she arrived in California with her daughter the defendant came to see her seeking a reconciliation; that he and the witness reached an understanding to the effect that defendant was to return to Sedalia for one year to "see what he could and would make out of himself;" that she was to take care of the plaintiff and herself and he was to be relieved of any obligation for plaintiff's support. She testified that if at the end of the year "he had behaved himself I probably would come back;" that the note entered into this agreement; that it was agreed that the witness was to hold the note "while he was trying the reformation period;" that she was to support herself and the plaintiff for that year. In pursuance to that agreement the witness wired her attorney in Sedalia not to file the divorce suit, but the same having already been filed, it was dismissed. The witness further testified that "had I come back, had he fulfilled his promise that he assumed, the note probably would have been returned to him, but I never had occasion to come back," because defendant filed in Sedalia, a suit for divorce against her. The evidence shows this suit was filed September 6, 1913; that the grounds alleged in the petition for divorce were desertion, and that the divorce was obtained on an order of publication against the defendant therein. Plaintiff's mother testified that she continued to support herself and the plaintiff for a period of three years, at which time defendant's father began to contribute to the plaintiff's support; that defendant was never called upon by the witness to support either herself or plaintiff. Plaintiff was married to one Smith in the State of California about four years after the final separation.

Defendant's version of these transactions was that he and his wife had had some quarrels before the note was given; that he did not remember whether they were having any trouble at the time, but that he voluntarily delivered the note to his wife made out to his daughter because he had no money at the time and wanted to make provision for her education when she grew up; that the consideration for the giving of the note was love and affection for his daughter; that he had no reason to apprehend that there was going to be any separation at the time of its execution; that he gave his wife the money with which to go to California; not knowing that she was separating from him; that relations between them at that time were good; that after she left for California he found out that she was dissatisfied and he went out to California and attempted to effect a reconciliation; that he went out there on two occasions; that his wife told him she would either come back or he could go out there; that in about three months thereafter she instructed him to file suit for divorce against her. Defendant further testified that there was no talk in California about the note, or concerning the custody of the child; that he did not remember whether there was any suggestion that he should do anything for the plaintiff at that time; that he thought his wife would come back.

Defendant insists that the court erred in refusing to give his instruction in the nature of a demurrer to the evidence at the close of the entire case. In this connection defendant insists that the agreements had between himself and his wife were void as against public policy and furnished no consideration for the giving of the note; that the only consideration for the note was love and affection and that such a consideration is not sufficient to afford a legal consideration for the giving of a note. There seems to be no contention between the parties that if the note was given for the reason assigned by the defendant in his testimony...