State ex rel. Hospes v. Branch

• Decision Date: 22 January 1895
• Citation: 28 S.W. 739,126 Mo. 448
• Parties: The State ex rel. Hospes, Appellant, v. Branch et al
• Court: Missouri Supreme Court

28 S.W. 739

126 Mo. 448

The State ex rel. Hospes, Appellant, v. Branch et al

Supreme Court of Missouri

January 22, 1895

Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.

Reversed and remanded.

""Valle Reyburn and ""Jos. S. Laurie for appellant.

(1) Branch, while curator, converted to his own use funds belonging to his ward, Alice Crookes, amounting, in round numbers, to $ 20,000. This was a breach of his bond as curator and at once fixed a liability thereon. ""State to use v. McCormack, 50 Mo. 569; ""Bissell v. Saxton, 66 N.Y. 55; ""School District v. McDonald, 39 Iowa 564; ""State to use v. Jones, 89 Mo. 470. Such liability continued and could only be discharged by actual restoration of said funds. It is immaterial that upon the termination of his office as curator of Alice he succeeded himself in the capacity of her trustee and executed a new bond. Such fact could not serve to extinguish the liability then resting on the curator's bond. ""Orrick v. Vahey, 49 Mo. 428; ""Vivian v. Otis, 24 Wis. 518; ""Harris v. Harrison, 78 N.C. 202; ""Culp v. Lee, 109 N.C 675; ""Conover's case, 35 N.J.Eq. 108. (2) The undisputed evidence shows that no money passed at the date of the receipt of July 16, 1888; that he did not have the funds in hand, owing to the fact that he had previously converted the same by investment for his own benefit, in various enterprises and speculations, and that the balance due from himself as curator was never paid. Plaintiff was, therefore entitled to recover judgment in this action. ""State to use v. Drury, 36 Mo. 281; ""State to use v. Berning, 74 Mo. 87; ""Eichelberg v. Gross, 42 Ohio St. 549; ""State ex rel. v. Weaver, 92 Mo. 673. (3) The court erred in the instruction defining solvency. ""State ex rel. v. Koontz, 83 Mo. 323; 11 Am. and Eng. Encyclopedia of Law, p. 168; 22 ""id., 837. (4) The evidence shows that Branch was not solvent, within the correct meaning of the term. (5) The court erred in matters relating to the evidence. ""First. The admission in evidence, in behalf of defendant, of the petition in a suit purporting to have been filed by the attorneys of Hospes as trustee of Alice against Branch and his sureties upon the trustee's bond, was erroneous. ""Cook v. Barr, 44 N.Y. 156; ""Dennie v. Wright, 135 Mass. 28; 1 Rice on Evidence, p. 228; 1 Greenleaf on Evidence [15 Ed.], sec. 171 n. (""a) and cases cited. ""Second. The court erred in refusing to allow plaintiff's counsel to examine defendant Branch, under the rules applicable to cross-examination of witnesses as provided by the statute. R. S., sec. 8920.

""R. S. MacDonald and ""E. C. Kehr for respondents.

(1) When a case has been decided in the appellate court, and again comes to such court by appeal or writ of error, only such questions will be noticed as were not determined in the previous decision. Whatever was passed upon must be regarded as ""res adjudicata. Bank v. Taylor, 62 Mo. 338; ""Adair County v. Ownby, 75 Mo. 282; ""Conroy v. Iron Works, 75 Mo. 651; ""Keith v. Keith, 97 Mo. 223. (2) Upon the second trial of the case at bar nothing remained open, except the right of the plaintiff, in rebuttal of the ""prima facie case made by the receipt to show that Branch was insolvent at the date of the receipt. ""State ex rel. v. Branch, 112 Mo. 661; ""Tittmann v. Green, 108 Mo. 22. (3) The instructions given for the defendant and by the court on its own motion are correct declarations of law. ""Tittman v. Green, 108 Mo. 22; ""State ex rel. v. Branch, 112 Mo. 661; ""State to use v. Cheston, 51 Md. 352; ""Gilmer v. Baker, 24 W.Va. 72. (4) Admissions contained in a pleading may be used against the party in another suit; and this wholly regardless of the question whether the person himself was in fact cognizant of the pleading. The act of the attorney in such case will be held to be the act of the party. ""Dowzelot v. Rawlings, 58 Mo. 75; ""Anderson v. McPike, 86 Mo. 293; ""Schad v. Sharp, 95 Mo. 573; ""Bailey v. O'Bannon, 28 Mo.App. 39; ""Murphy v. Foundry, 29 Mo.App. 541; ""Nichols v. Jones, 32 Mo.App. 657.

Brace C. J. Barclay, J., not sitting.

OPINION

In Banc.

Brace, C. J.

This is a suit prosecuted to the use of Richard Hospes, as trustee of Alice Crookes, against Joseph W. Branch, formerly curator of the said Alice Crookes, and the securities on his bond as curator. The petition charges, in substance, that on the fifth day of April, 1875, defendant Branch was appointed, by the probate court of the city of St. Louis, curator of the estate of Alice Crookes, a minor, and that said Branch, as principal, together with Alexander and Parks, as sureties, thereupon executed a bond in the sum of $ 32,000, conditioned that said Branch should well and faithfully discharge the duties of his office as curator, according to law, which bond was accepted and approved; that said Branch as curator, did collect and receive large sums of money belonging to his ward, to wit, the sum of $ 29,514.32; that said Branch converted to his own use the sum of $ 20,511.95 of the moneys thus received by him, belonging to his ward, and has failed to account for or pay over the same, or any part thereof, either to Alice Crookes, she having attained her majority, or to relator, Hospes, who was appointed her trustee on July 23, 1888, by the circuit court of the city of St. Louis.

Defendant Branch made no answer. Both sureties, Parks and Alexander, were dead, and their administrators made answer in substance that Alice Crookes was the daughter of Joseph Crookes, who died in 1874, leaving a will whereby he bequeathed a portion of his estate to his daughter, then a minor, and directed that when she attained the age of eighteen years the same should be vested in a trustee, for her sole and separate use; that she became of age on the twenty-fifth day of February, 1883, and on July 19, 1884, said Branch, as her curator, made a final settlement in the probate court of St. Louis, which was approved by said court, and the balance shown by the same, to wit, the sum of $ 19,832.15, ordered to be paid by said curator to her trustee, as directed by the will of her father; that on June 1, 1885, the circuit court appointed said Branch trustee of said Alice Crookes, who thereupon qualified as such trustee, giving a bond with sureties in the sum of $ 40,000, for the faithful performance of his duties, which bond was approved by the court; that on said day said Branch, as curator, paid over to himself, as trustee, said balance of $ 19,832.15, and executed a receipt for the same from himself as curator, to himself as trustee; that on June 16, 1885, said Branch, as trustee, appeared in said probate court and in open court acknowledged entire payment and satisfaction of the sum ordered by the court to be paid by the curator of Alice Crookes to her trustee, and that thereupon said probate court entered said ackowledgment of satisfaction and ordered that said Branch, as curator, be finally discharged.

Upon a trial of the case the facts alleged in the answer were all proven substantially as charged, except the fact that said Branch actually paid over to himself, as trustee, the said balance of $ 19,832.15, though executing and filing the receipt as charged. On the contrary, it was shown that no such transfer of the estate was made.

This is the second appeal in the case. The opinion in the first appeal is reported in 112 Mo. 661, 20 S.W. 693, to which reference is made for copies of orders of the probate and circuit courts, receipts, and other facts.

Upon this trial, evidence was offered by the parties which tended to prove the financial condition of Branch at the time of his appointment as trustee, and his ability to pay said balance. Four several receipts of Miss Crookes acknowledging the payment to her, by Branch as trustee, of sums of money aggregating about $ 2,650, were read in evidence. These were all dated subsequent to the appointment of Branch as trustee.

The case was submitted to the jury upon the theory declared in the following instructions given for the defendants.

"If the jury believe from the evidence that the defendant, Joseph W. Branch, executed the receipt dated the first day of June, 1885, and read in evidence by defendants, he thereby elected to hold, from that time forward, the fund recited in said receipt as trustee, and not as curator, of Alice Crookes, and if at that time he actually had her estate in his hands, or was solvent and able to turn it over, then such election transferred the fund from himself as curator to himself as trustee, and the jury will find the issues herein for defendant, Eugene C. Tittman, administrator of the estate of Basil W. Alexander.

"The jury are instructed that the defendant, Joseph W. Branch, was solvent within the meaning of the foregoing instruction, if, at the time of the execution of the receipt of June 1, 1885, he was able to meet, and did meet, his obligations as they matured, and was at the time possessed of property subject to execution, out of which the debt due Alice Crookes could have been collected by process of law."

And the following, given by the court in modification of instructions asked for by the plaintiff:

"The court instructs the jury that the receipt dated June 1, 1885 given by defendant Branch, in his capacity of trustee, to himself as curator, read in evidence, and the order of the probate court made June 16, 1885, discharging said Branch as curator of Alice Crookes, read in evidence, do not have the effect of relieving defendants from liability, unless the jury are satisfied and believe from the evidence that on June 1, 1885, the defendant Branch had the money and estate of Alice Crookes in his hands, or that said Branch at that time was able to pay the said debt...