Smith v. Culligan

• Decision Date: 31 October 1881
• Citation: 74 Mo. 387
• Parties: SMITH, Administrator, v. CULLIGAN, Appellant.
• Court: Missouri Supreme Court

74 Mo. 387

SMITH, Administrator,

v.CULLIGAN, Appellant.

Supreme Court of Missouri.

October Term, 1881.

Appeal from Buchanan Circuit Court.--HON. J. P. GRUBB, Judge.

AFFIRMED.

B. R. Vineyard for appellant.

Strong & Mosman for respondent.

NORTON, J.

This suit was instituted in the circuit court of Buchanan county by plaintiff as the administrator de bonis non of the estate of Terrence W. Cunningham, deceased, to recover the sum of $1,037.63, less the sum of $294, alleged to be in defendant's hands and belonging to said estate. Defendant, in his answer, after admitting the death of said Cunningham, and that at the time of his death he had deposited with defendant $1,037.63, alleged that shortly after said Cunningham's death M. C. Enright was duly appointed the administrator of his estate, to whom defendant accounted for and paid, as such administrator, the whole of said sum belonging to said Cunningham, deceased, which said sum said Enright thereupon deposited with defendant in his own name. For another and further defense, the answer, after alleging that said Cunningham had deposited with defendant in his lifetime the said sum of money, avers that after his death defendant paid upon the order and by direction of said Enright, as administrator, divers sums of money amounting in the aggregate to $1,037.63. On plaintiff's motion these two defenses were adjudged to be inconsistent, and defendant having been required to elect on which defense he would stand, elected, as the record shows, to stand upon the first defense.

On the trial plaintiff had judgment for $738.19, from which the defendant has appealed, and alleges various grounds of error, among the principal of which is the action of the court in requiring him to elect on which one of the defenses he would rely. We are of the opinion that the court did not err in this ruling, as the two defenses are clearly inconsistent; it being alleged in the first defense that the whole sum deposited by Cunningham was paid to Enright as the administrator of Cunningham, which was afterward deposited with him as the baile of Enright; whereas it is alleged in the second defense that defendant held the money as the bailee of said Cunningham and had paid it out on various orders of Enright, as his administrator. An answer may contain as many defenses as a defendant may have, provided they are separately stated and are consistent with each other. Darrett v. Donnelly, 38 Mo. 492; Nelson v. Brodhack, 44 Mo. 596.

While the...