Stevens v. Stevens

• Decision Date: 29 June 1908
• Citation: 112 S.W. 35,132 Mo. App. 624
• Parties: STEVENS v. STEVENS.
• Court: Missouri Court of Appeals

112 S.W. 35

132 Mo. App. 624

STEVENS v. STEVENS.

Kansas City Court of Appeals. Missouri.

June 29, 1908.

Rehearing Denied July 15, 1908.

1. DEEDS — CONSTRUCTION—CONSIDERATION—SPECIAL DEPOSIT.

Plaintiff made a special deposit with his brother of $1,000, which was put in an envelope, on which was written "Property of" plaintiff, and placed in a safe. Plaintiff worked for his brother several years before the latter's death, and the brother and his wife executed a deed to plaintiff reciting that the consideration was "one dollar, love and affection, and a receipt in full for all labor claims and demands whatsoever." Held, that the receipt expressed in the statement of consideration did not cover the deposit.

2. BAILMENT — GRATUITOUS BAILMENT — DEPOSIT OF MONEY.

A deposit of $1,000, made by plaintiff with his brother, placed in an envelope marked as plaintiff's property and put in a safe, is a gratuitous bailment, entailing no liability except for gross negligence.

3. SAME—CONVERSION—DEMAND.

In the absence of a demand made on a bailee during his lifetime to return a special deposit of money made with him and a refusal to surrender the deposit, there is no conversion by the bailee.

4. EXECUTORS AND ADMINISTRATORS—ACTIONS —CONVERSION.

Where the bailee of a special deposit of money dies without returning it, and the money cannot be identified, an action in the nature of conversion is the only remedy available against the executrix on her refusal to recognize the claim.

5. TRIAL—DIRECTION OF VERDICT — EVIDENCE FOR PLAINTIFF.

Where there is evidence tending to support plaintiff's claim, it is error to direct a verdict for defendant.

Appeal from Circuit Court, Jackson County; John G. Park, Judge.

Action by William L. Stevens against Ellen S. Stevens, executrix of Edward A. Stevens, deceased. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

James A. Plotner, for appellant. Lathrop, Morrow, Fox & Moore, for respondent.

BROADDUS, P. J.

This suit is against the executrix of the estate of E. A. Stevens, deceased. The proceeding was commenced in the probate court, and plaintiff's statement as to the nature of his claim is as follows: "To cash had and received by the said E. A. Stevens in his lifetime, for and on account of a special deposit made by the said William L. Stevens with the said E. A. Stevens * * * $1,000.00." The plaintiff established by his own evidence that prior to July, 1901, he had in his possession money of his own to the amount of $1,000. He stated that he kept some of it with O. H. Stevens in his safe, and that afterwards he took from that safe the money, and put it in Miller Stevens' safe, who was also dead at the time of the trial. He stated that his brother died some time about the 15th or 25th of August, 1902, and that the demand he made of the executrix was some time thereafter in the month of September. At this time he received a deed executed by E. A. Stevens and his wife, the executrix, conveying certain lots of ground situated in Kansas City, Mo. He stated that this deed had been delivered by the deceased to George Stevens as an escrow, who delivered it to him. The deed is dated June 7, 1901, and the consideration is expressed in the following language: "That said parties of the first part, in consideration of the sum of one dollar, love, and affection and receipt in full for all labor claims and demands whatsoever," etc. It was acknowledged on the 6th day of August, 1901.

Henry L. Metzger testified that: On May 13, 1902, he went into the office of the deceased to get change for a $20 bill. That deceased said he had no change; but, when witness started to leave, said: "Wait a...