Stierman v. Meissner

• Decision Date: 06 July 1923
• Docket Number: No. 17590.,17590.
• Citation: 253 S.W. 383
• Parties: STIERMAN v. MEISSNER
• Court: Missouri Court of Appeals

253 S.W. 383

STIERMAN v. MEISSNER

No. 17590.

St. Louis Court of Appeals. Missouri.

July 6, 1923.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

"Not to be officially published."

Action by Annie Stierman, as executrix of the will of George H. Stierman, deceased, against George N. Meissner. From a judgment for defendant after plaintiff's motion to set aside an involuntary nonsuit had been overruled, plaintiff appeals. Affirmed.

Edward E. Butler and James J. O'Donohoe, both of St. Louis, for appellant.

Jones, Rocker, Sullivan & Angert, of St. Louis, for respondent.

BECKER, J.

Under date of February 1, 1915, George H. Stierman made a written application to the Massachusetts Mutual Life Insurance Company for a policy of insurance upon his life in the sum of $5,000, in which he requested that the policy to be issued upon such application be payable upon his death "To my business partner, George N. Meissner," defendant below and respondent here. This application was accepted by the company, and on February 5, 1915, a policy was issued for $5,000 on the life of Mr. Stierman, wherein "George N. Meissner, his business partner," was designated as the beneficiary. The policy was delivered to said Meissner, who retained possession of it up to the time of the death of the insured. There is no dispute but that the insured paid all the premiums on the policy up until the time of his death. Prior to the issuance of this policy it is admitted by plaintiff that Meissner advanced the necessary money to permit the insured, Stierman, to go into business under the name of the "Stierman Vehicle Company," it being plaintiff's contention that the money was advanced by Meissner merely as a friendly act, and with the understanding that he was to receive back such sum with 6 per cent. interest, while it is defendant's contention that he had an interest in the business, and was a partner of Stierman, the insured. The evidence shows that all of the capital of the Stierman Vehicle Company, aggregating approximately $5,000, was furnished by the defendant, Meissner, and some testimony tends to show that Meissner prior to the insured's death (evidently out of the profits made in the business) had been paid back all that be had put into the business, yet whether the defendant was the sole owner of the business and the insured was a In ere employé, or whether the insured and defendant were partners In the ownership of that business, or whether the business was owned by the insured and the defendant merely a creditor, is a matter of some doubt under the record; however, in light of our ruling as to the law applicable to the case, this question is not one of moment.

Upon the insured's death, which occurred on December 27, 1918, a controversy arose between the plaintiff and the defendant as to who was entitled to the proceeds of this policy, and also what interest, if any, the defendant, Meissner, had in the property and business of the Stierman Vehicle Company. The plaintiff, who is the widow and executrix and also the sole beneficiary under the will of the insured, asserted that Meissner had at no time an interest in the business with her deceased husband, and that the policy of insurance in which said Meissner was named beneficiary had been taken out by the insured and delivered to Meissner with the understanding and for the sole purpose of securing Meissner as a creditor In having advanced money with which the insured started in business, and that all of the money which the insured owed Meissner had been paid back, together with interest, prior to the date of the death of said insured, whereas Meissner claimed he was a partner in the business, and also that as the named beneficiary in the policy he was entitled to the proceeds thereof.

Plaintiff in her individual capacity engaged counsel to represent her in the matter. According to her own testimony, the first attorney whom she employed advised her that under the facts and circumstances she ought to effect a compromise with the defendant, and that she thereupon discharged him and employed another attorney. This latter attorney (other counsel than appears here for appellant) had several conferences with the attorney for the defendant, and after a thorough investigation of the matter he also advised her to adjust the matter by way of compromise. Thereupon, in conformity with the advice of her counsel, plaintiff attended a conference in her attorney's office, at which she and her attorney and defendant and his attorney were present, which resulted in plaintiff and the defendant entering into a written compromise under the terms of which mutual releases for the proceeds of the policy were made to the insurance company authorizing the said insurance company to pay the amount of the policy to Meissner, and upon receipt thereof the sum was equally divided between plaintiff and defendant; that is, Meissner paid $2,500 thereof to the plaintiff, and the remaining $2,500 was retained by him. Meissner also, in accordance with the terms of this compromise, executed a waiver and release to any and all claims which he might have against the property and business of the Stierman Vehicle Company which was then being administered upon as a part of the estate of the insured.

Somewhat over a year later plaintiff brought this action against the defendant for the $2,500 which had been retained by the defendant out of the proceeds of the policy in accordance with the said compromise agreement.

The petition undertakes to predicate liability upon the defendant on the theory that, though the policy was payable by its terms to defendant as the business partner of the insured, nevertheless the defendant was not in fact a business partner, but was merely a creditor of the insured, and that, as there was nothing owing to him by the insured at the time of the latter's death, the defendant is therefore liable to the plaintiff for the balance of $2,500 collected on said policy, which was retained by Meissner.

The answer of the defendant was a general denial plus the affirmative defense that after the insured's death a controversy arose between plaintiff and defendant, first, as to who was entitled to the proceeds of the policy, and, second, as to the ownership of the business and property of the Stierman Vehicle Company; that the parties agreed to compromise and adjust this controversy by dividing the proceeds of the policy equally between plaintiff and defendant and the defendant waiving and releasing all claims which he had against the property and business of the Stierman Vehicle Company and to his alleged claim to right to administer upon said property and business as surviving partner, all of which defendant's answer alleges was done.

The reply admitted the execution by plaintiff of the compromise agreement, as alleged in the answer, but sought to avoid the same because (1) said agreement was not executed by the plaintiff in her representative capacity as executrix of the will of her husband, and (2) that said compromise agreement was procured by fraud and duress, with the intent on the part of the defendant to cheat and defraud the plaintiff in this, that the defendant (a) fraudulently claimed and represented that he was a partner of the insured in the ownership and operation of the Stierman Vehicle Company, and (b) threatened plaintiff that unless she would sign said compromise agreement and permit the defendant to retain the sum of $2,500 out of the proceeds of said policy the defendant would make claim in the probate court for his share as a partner of the said George H. Stierman in the business and property of the Stierman Vehicle Company, and would apply to the probate court for a revocation of the letters testamentary theretofore issued to plaintiff as executrix of said estate and (c) that, in pursuance of his intent to cheat and defraud the plaintiff out of her right to the proceeds of said policy, defendant and his representatives exhibited a large law book, and threatened to prosecute the plaintiff and send her to the penitentiary from three to five years unless she signed said agreement.

The case was tried to a jury, but at the close of plaintiff's case the court, at the request of counsel for defendant, instructed the jury that under the pleadings and the evidence plaintiff was not entitled to recover, and they should return a verdict in favor of defendant, whereupon plaintiff took an involuntary nonsuit with leave to set the same aside. In due course, the plaintiff's motion to set aside said involuntary nonsuit having been overruled, plaintiff appeals.

Appellant seriously contends that under the evidence adduced by plaintiff it was conclusively established that the defendant and the insured were at no time copartners, but that the defendant was merely a creditor of the insured, and that the policy was taken out solely for the purpose of protecting Meissner, a creditor, and that Meissner was named...