Silvey v. Brixey

• Decision Date: 10 January 1938
• Docket Number: No. 5879.,5879.
• Citation: 112 S.W.2d 75
• Parties: SILVEY v. BRIXEY.
• Court: Missouri Court of Appeals

112 S.W.2d 75

SILVEY v. BRIXEY.

No. 5879.

Springfield Court of Appeals. Missouri.

January 10, 1938.

Appeal from Circuit Court, Douglas County; Robert L. Gideon, Judge.

"Not to be published in State Reports."

Action by Alfred Silvey against J. O. Brixey, his former curator, for damages resulting from a final settlement. From a judgment for plaintiff, defendant appeals.

Affirmed.

Jos. V. Pitts, of Ava, for appellant.

George T. Meador, of Seymour, and John M. Bragg, of Ava, for respondent.

ALLEN, Presiding Judge.

This is an appeal from the circuit court of Douglas county, awarding to the plaintiff, respondent, a judgment for damages against his former curator, J. O. Brixey, defendant and appellant herein.

The plaintiff in his petition alleged that on the 31st day of December, 1926, he was a minor and that J. O. Brixey, defendant, was appointed his curator; and that there came into his hands, as such, the sum of $886.16 in money. The petition further alleged that on the 20th day of June, 1932, the defendant made final settlement with his ward, showing the assets in his hands consisted of one promissory note, secured by a deed of trust in the sum of $850.

The petition further alleged that the real estate secured by the note and deed of trust had a value far in excess of the value of the note, that the plaintiff was illiterate, inexperienced and uneducated, and that the defendant, knowing such fact for a period of three or four months prior to the final settlement in the probate court, represented and stated to the plaintiff that the makers of the note were insolvent and unable to pay the note, and that the real estate securing it was not worth more than $400.

Plaintiff alleged that the representations were false and he relied on them and accepted the sum of $400 from defendant, in full, for said note.

The defendant's answer admitted that he was curator of plaintiff; admitted the final settlement as alleged in plaintiff's petition and the amount of the assets in the estate at said time. And further admitted that he, defendant, bought the note for $400 from the plaintiff, but denied that he fraudulently represented to the plaintiff that the makers of the note were insolvent and that he made any false representations to the plaintiff.

The evidence on behalf of plaintiff, respondent, disclosed that he was illiterate, uneducated and unable to read or write; that the defendant, appellant, was appointed his curator and some time in June, 1932, made settlement with the respondent and that prior to that time appellant had told respondent that the note was not worth $400 and that the real estate would not bring the amount of the note, and that respondent relied on these representations and sold the note to appellant for $400.

The undisputed evidence shows that the settlement was made on the 20th day of June, 1932, in the morning, at the courthouse in Ava, Douglas county, and on the same day the deal for the note and mortgage was consummated and that the appellant paid $200 at that time to the respondent and later paid an additional $200; and that the note and mortgage were delivered to appellant and thereafter the makers of the note and mortgage fully discharged same, with interest.

Defendant's appellant's evidence, outside of admitting the curatorship proceedings and settlement in the probate court, in Douglas county, and the purchase of the note and mortgage on the same day appellant received his discharge as curator, contradicted the respondent's evidence. The appellant's evidence was to the effect that he advised the respondent to keep the note and deed of trust and that the land secured by the deed of trust would make him a good home. There was also evidence that respondent had offered to sell the note to his Uncle Jack Silvey, prior to the settlement in the probate court, for $500.

The appellant's evidence and respondent's evidence at the trial were contradictory on the question of representations. The jury verdict was for the sum of $223. Respondent makes no complaint that the verdict is inadequate, therefore this point is not preserved for us on review, and the appellant cannot complain on this score.

The jury, in assessing a verdict must have believed the testimony of the respondent, therefore, although it might seem that the appellant had the greater number of witnesses, yet the jury is the sole judge of the credibility of the witnesses and the weight to be given to their testimony, and the verdict of the jury is binding upon this court as to the factual issues. Morris v. Atlas Portland Cement Co., 323 Mo. 307, 19 S.W.2d 865. It is solely within the province of the trial court to set aside a verdict as against the weight of the evidence. This court does not have such power.

Appellant assigns as error the giving of plaintiff's (respondent's) instructions A and B.

Instruction A told the jury that a curator is not allowed by law to profit out of the assets of his ward's estate and that if the defendant bought the note and deed of trust from the plaintiff for $400 while he was plaintiff's curator then the verdict should be for the plaintiff; and further instructed the jury that "if you find and believe from the evidence that the defendant made false and fraudulent statements as to the value of the note and deed of trust, of $850.00 with intent to deceive plaintiff as to its value and that the plaintiff believed said statements and relied on the defendant as to the value of the...