State ex rel. Community Heating & Air Conditioning Co. v. Schwartz, 33434

• Decision Date: 24 February 1970
• Docket Number: No. 33434,33434
• Parties: STATE of Missouri on the relation and to the Use of COMMUNITY HEATING AND AIR CONDITIONING COMPANY, Inc., Plaintiff-Appellant, v. Helen M. SCHWARTZ, Administratrix of the Estate of Charles M. Schwartz, Deceased, and Maryland Casualty Company, a Corporation, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 243

452 S.W.2d 243

STATE of Missouri on the relation and to the Use of

COMMUNITY HEATING AND AIR CONDITIONING COMPANY, Inc., Plaintiff-Appellant, v. Helen M. SCHWARTZ, Administratrix of the Estate of Charles

M. Schwartz, Deceased, and Maryland Casualty

Company, a Corporation, Defendants-Respondents.

No. 33434.

St. Louis Court of Appeals, Missouri.

Feb. 24, 1970.

Hayes & Hayes, St. Louis, for plaintiff-appellant.

Dubinsky & Duggan, St. Louis, for defendants-respondents.

DOWD, Judge.

This is a suit in equity for an accounting against an administratrix of an estate and the surety on the administratrix's bond. The suit is based upon a written contract allegedly made between Community Heating and Air Conditioning Company and Charles M. Schwartz, now deceased. The contract (plaintiff's exhibit 1) was pleaded in the petition verbatim. This contract was dated June 9, 1966 and the pertinent part of the contract is as follows:

'RENTAL AGREEMENT BETWEEN SCWARTZ HEATING & HOME IMPROVEMENT, Charles M. Schwartz and COMMUNITY HEATING & AIR CONDITIONING CO., INC.

'SCHWARTZ HEATING & HOME IMPROVEMENT CO., Charles M. Schwartz, shall have the right to use the store at 2329 Union Blvd., rent free, and shall pay for the utilities.

'SCHWARTZ HEATING & HOME IMPROVEMENT, Charles M. Schwartz and COMMUNITY HEATING & AIR CONDITIONING CO., INC., Amelia M. Garvin, owner, will share equally in all the profits made by SCHWARTZ HEATING & HOME IMPROVEMENT, Charles M. Schwartz, and COMMUNITY HEATING & AIR CONDITIONING CO., INC., beginning 10 June 1966. Amelia M. Garyin shall keep the books and write checks to cover profits and expenses.'

The agreement then listed the office equipment owned by each of the parties to the contract. The contract is signed by Charles M. Schwartz and Amelia M. Garvin. The corporate capacity is not shown in connection with Mrs. Garvin's signature.

The petition further alleged that there was money due Charles Schwartz at the time of his death for work performed under the contract and that this money is an asset of the estate. The petition further alleged that the defendant has either failed to collect this money or if she has collected this money she has failed to pay it over to the estate. The petition also alleged that plaintiff was entitled to one-half of the profits made under the contract and asked for an accounting and for a judgment for such sum as the court may determine is due plaintiff.

Defendant Helen M. Schwartz, administratrix of the estate of Charles M. Schwartz, deceased, filed an answer and admitted the corporate existence of plaintiff corporation and admitted that, '* * * on or about June 9, 1966, an agreement was entered into between Community Heating and Air Conditioning Company, Inc., a corporation, and the decedent, Charles M. Schwartz * * *' and admitted that Charles M. Schwartz operated his business in plaintiff's premises at 2329 Union Boulevard from June 9, 1966 to October 8 , 1966, but denied that she had failed to collect or failed to turn over any asset to the estate. Defendant Helen M. Schwartz, administratrix, pleaded that there was a loss from the business and no profits emanated from the business after June 9, 1966, and filed a counter-claim which was dismissed by that defendant without prejudice after plaintiff rested its case.

Defendant Maryland Casualty Company which was the surety on the administratrix's bond of defendant Helen M. Schwartz, filed a pre-trial motion to dismiss on the grounds that plaintiff failed to state a cause of action against that defendant. That motion was sustained by the trial court on January 9, 1968.

The only witness in this case was Mrs. Amelia Garvin who testified to the following effect: She owned the building at 2329 Union Boulevard, and had incorporated in March or May of 1966 after the death of her husband using the same name her husband had used in his business. This was a 'one-man corporation' and Mrs. Garvin was the sole stockholder and held all the offices in the corporation. Mr. Schwartz and her husband were engaged in the same kind of business and both businesses were located in the same block. Plaintiff's exhibit 1, the rental agreement, was between Community Heating and Air Conditioning Company, Inc., Mr. Schwartz and herself. This agreement was admitted into evidence without objection. The parties to this agreement operated under it until October 8, 1966 when Mr. Schwartz died. Under this agreement Mrs. Garvin kept the books and records, answered the phone, wrote checks and paid the bills.

At the time of Mr. Schwartz's death there were five completed jobs and the contract prices for these five jobs totalled $8,855.00 and the only thing remaining was to collect the money. There were four uncompleted jobs and the contract prices for these four jobs totalled $6,196.00. The material had been paid for on the completed jobs but there were several thousand dollars still due for labor. An accounting was needed to determine the exact amount owed for labor. The estate had received a check for $700.00 for one job. Mrs. Garvin requested the estate to make an accounting for $16,900.00, and had never received an accounting.

There had been a division of profits in June and July of 1966. Mr. Schwartz was issued a check in early June of 1966 for $1,800.00 representing profits from the business. On October 6, 1966 Mrs. Garvin issued a check marked 'rent' for $2,400.00 payable to Community Heating and Air Conditioning Company, Inc., which was also a division of profits. Following Mr. Schwartz's death, Mrs. Garvin turned over the records to the attorney for Helen M. Schwartz but kept photocopies of the records.

After plaintiff had rested its case the defendant Helen M. Schwartz, administratrix, moved to dismiss plaintiff's cause of action on the ground '* * * that the plaintiff has failed to state true facts sufficient to state a cause of action against the defendant. * * *' The court below dismissed plaintiff's petition with prejudice at plaintiff's costs on the ground that plaintiff is not the real party in interest. Plaintiff appeals.

Appellant's first contention on this appeal is that the plaintiff had a right to join the surety on the administratrix's bond in this action for accounting against the administratrix and the petition against Maryland Casualty Company should not have been dismissed. The respondent does not answer this contention but contends in its brief that appellant's notice of appeal as required by Civil Rule 82.08 V.A.M.R., is defective because appellant only appealed from the trial court's judgment and order of December 4, 1968 which dismissed plaintiff's cause of action against Helen M. Schwartz, administratrix. While it is true that the respondent Maryland Casualty Company is omitted from the caption of the transcript and from the caption of the notice of appeal, the appellant has complied with Civil Rule 82.08 V.A.M.R., which provides, in part that: 'The notice of appeal shall specify the parties taking the appeal; shall designate the judgment or order appealed from; * * *.' The appeal is from the final judgment. The general rule is that a judgment to be final and appealable must dispose of all parties and issues in the case and leave nothing for future determination. Elliott v. Harris, Mo., 423 S.W.2d 831(1). The dismissal of plaintiff's petition as against Maryland Casualty Company was not designated as a final judgment by the trial court. It did not dispose of all the parties and issues in the case. It was not an appealable order.

Appellant's notice of appeal refers specifically to the court order '* * * dismissing plaintiff's Petition and cause of action, with prejudice, at plaintiff's costs, heretofore entered by this Court, in this cause, upon December 4, 1968.' This was the final judgment to be appealed from. It was not necessary in the notice of appeal to refer to the trial court's order of January 9, 1968 dismissing plaintiff's petition against Maryland Casualty Company.

Did the court err in dismissing plaintiff's petition against the administratrix's surety in an action for an accounting against the administratrix? We hold that the court did not err. Section 473.217, V.A.M.S., states: 'The bond of an executor or administrator may be sued on at the instance of any party injured, in the name of the state, to the use of such party, for waste or mismanagement of the estate, or for other breach of the conditions of the bond; and damages shall be assessed thereon as on bonds with collateral conditions.' (Emphasis ours).

Was the plaintiff a 'party injured?' At this point in the proceedings we do not believe that the plaintiff can qualify as a 'party injured.' The basic issue here is plaintiff's right to an accounting from the administratrix. The right to join the surety would be predicated on a showing that plaintiff is a 'party injured.' An accounting might or might not establish that the plaintiff is a 'party injured' by the administration of the estate by the defendant administratrix.

In State ex rel. and to Use of Gnekow v. United States Fidelity & Guaranty Co., 349 Mo. 528, 163 S.W.2d 86(7), the issue was: '* * * If an administrator takes property, actually owned by some third person, under the claim that it is an estate asset and puts it (or its proceeds if he converts it to cash) into the estate, can the owner recover from the surety on the administrator's bond, after final determination that it is not an estate asset, when the administrator refuses to make full restitution?' The Supreme Court which disapproved earlier cases, held at l.c. 90 of 163 S.W.2d: '* * * that liability on the bond accrues when the question of ownership is finally determined against the estate and the administrator refuses to make restitution.' This is analogous to the case here where there has been no final determination against the estate or it has not been established that defendant Schwartz as administratrix is...