Taylor v. Rust

• Decision Date: 02 July 1917
• Docket Number: No. 12521.,12521.
• Citation: 198 S.W. 194
• Parties: TAYLOR v. RUST.
• Court: Missouri Court of Appeals

198 S.W. 194

TAYLOR v. RUST.

No. 12521.

Kansas City Court of Appeals. Missouri.

July 2, 1917.

Rehearing Denied November 5, 1917.

Appeal from Circuit Court, Jackson County; Harris Robinson, Judge.

Action by Nancy S. Taylor against Joseph S. Rust. Judgment for plaintiff, and defendant appeals. Affirmed.

John C. Grover, of Kansas City, for appellant. Langsdale & Howell, of Kansas City, for respondent.

TRIMBLE, J.

This is an action for money had and received. It seems that for some time prior to the happening of any of the matters hereinafter related, plaintiff and her husband had been unhappy in their marital relations and living apart, and she had determined to sue for divorce, having good grounds therefor. They owned a residence property in Kansas City, as tenants by the entirety, and this was incumbered with a mortgage. For various reasons, Mr. Taylor desired to obtain some money, settle up his financial affairs, and betake himself out West, there to remain. He therefore proposed to his wife that if she would enable him to raise some money by consenting to and joining with him in a mortgage increasing the loan on their house, whereby the old mortgage could be paid off, leaving him the remainder of the money represented by the new loan, he would give her the equity that then remained in the house and deed the same to her. She agreed to this and consented to, and signed with him, a mortgage, whereby he obtained the additional sum he desired. He then left Kansas City, telling Mrs. Taylor he was never coming back. Upon her inquiring about the equity in the house, he told her he had left a power of attorney with the defendant, which authorized the latter to sign his (Taylor's) name to the deed whenever she found a buyer for the property, and that she could then get all the money arising from said equity.

Mr. Taylor left, as stated, and Mrs. Taylor proceeded to hunt a purchaser for the house. She found one who was willing to give her $700 for the equity therein. She thereupon informed defendant of this fact and requested him to execute the deed, telling him of the agreement she and her husband had, and which she on her part had fully performed, whereby she was entitled to all of the proceeds arising from said equity. Defendant told her he had a power of attorney to convey the property, but could not pay her all of the proceeds, as Mr. Taylor had said nothing to him about that. She says defendant told her he would not sign the deed except under conditions, and those conditions were that if she would bring immediate suit for divorce, and would agree not to ask for any alimony from Mr. Taylor, he (defendant) would sign the deed. She says she refused to do this, telling defendant the divorce had nothing to do with her equity; that under her agreement above mentioned all of the equity belonged to her. She says that, believing her husband would do as he had agreed, she did not consent to the sending of the telegram defendant wanted to send Mr. Taylor, but suggested to defendant that he telegraph him and learn from him that she was entitled to all the proceeds of said equity. At any rate, defendant did telegraph Taylor, telling him his wife had signed a contract to sell the house for $700 net cash to her, and asking if he should sign deed and turn over all of said sum to her. Taylor wired in response:

"Provided I am discharged from all obligations by immediate suit. You may sign any contract and deed. If no suit is begun I demand one-half of proceeds. Price is absurd, but authorize your signing upon above conditions."

Before Mrs. Taylor saw this reply she consulted her attorney and began preparations to sue for divorce. She then saw defendant and learned the nature of the reply received from Mr. Taylor. She says defendant told her that it would be easier and very much less trouble to get the money by not asking for alimony. She says that she told defendant again that she was already entitled to all of the money because of Mr. Taylor's agreement with her that she should have the entire equity if she would join with him in the increased loan, which she had done. She further says that she never at any time put her claim on any other ground. But, as the taxes, interest, and expenses of the house were being paid by her and eating the equity up, and she wanted to get what she had in it out as soon as possible, and as her husband was insolvent and she had not thought of getting alimony anyway, and as defendant assured her that he would hold the money for her and she could surely get it by not asking for alimony, she instructed her attorney not to ask for it, and the suit for divorce was filed that way. In the meantime, or on the same day that Mrs. Taylor saw the telegraphic response from her husband, defendant signed the deed to the house as attorney in fact for Mr. Taylor, and, when the deal for the house was closed, received the entire $700. On July 23, 1915, defendant sent plaintiff a check for $350, her half of the money, in a letter saying that pursuant to the authority in him vested by the two telegrams, copies of which were attached, he had signed the deed and had received the $700, half of which was inclosed to her. The letter closed by saying:

"Under the authority given me in the telegram from Mr. Taylor, I shall hold the remaining $350, and pay the same to you when the divorce is granted to you without alimony."

In the divorce suit, considerable difficulty seems to have been experienced in getting service on Taylor. The papers were sent West, where they remained for some time without service. In the meantime, Taylor began writing and telegraphing to defendant demanding that he pay the $350 over to him. Defendant refused to do so, and finally on August 18, 1915, telegraphed Taylor that he could not send it, but held it for Mrs. Taylor, as he had agreed to hold it, "until decree without alimony, and then pay it to her." Thereupon Taylor wired defendant on August 19, 1915:

"I hereby revoke all authority granted to you as attorney or otherwise; have never authorized to hold proceeds of sale; insist upon remittance letter follows."

To this defendant replied that he was "legally and morally bound" not to send it. Finally, plaintiff's counsel in the divorce suit accidentally saw Taylor on the streets of Kansas City, and, recalling the service papers sent out West, had summons served upon him, thereby obtaining personal service in Jackson county, Mo.

The divorce suit came on for trial on November 16, 1915. Taylor did not appear nor contest it in any way, though there was no agreement that he should not do so, and the divorce, upon good grounds, was duly awarded plaintiff without alimony. Thereupon plaintiff demanded of defendant that he pay her the money he held, but because of Taylor's telegram of August 19th, and, because of matters now to be related, he refused. It seems that on October 15, 1915, Taylor went into the circuit court of Jackson county and confessed judgment against himself in favor of his mother for $450, and on October 25, 1915, execution was issued, and on the next day defendant was garnished. Interrogatories were filed on November 15, 1915, and on November 22d defendant, as garnishee in that suit, filed an answer in which he set up that Taylor and his wife had owned the house aforesaid by the entirety, and that Mrs. Taylor and garnishee, as attorney in fact for Mr. Taylor, had sold it for $700 and garnishee had received the money, one half of which he had paid over to Mrs. Taylor, and the other half he still held and desired to bring into court for such disposition as the court thought proper to make; that both Taylor and Mrs. Taylor were claiming the money, and he was unable to determine whether said sum of $350 belonged to the one or the other; and garnishee prayed the court to allow him to pay the money into court, and to make an order requiring said claimants to establish their right to said fund. Defendant, as said garnishee, informed plaintiff's then counsel of said garnishment, and the latter filed a motion in the nature of an interplea setting up her claim to the money. Thereupon Taylor, as attorney for his mother, filed a motion to dismiss said interplea, and the motion was sustained, there being no authority in law for an interplea in a garnishment under execution.

Plaintiff's new and additional counsel then sought to get permission to present her claim to the money by setting up such claim through the garnishee, and went to defendant and besought his permission to file for him a proper answer which would legally raise the issue of Mrs. Taylor's right to the money, and telling him what the basis of her claim was. Defendant consented to allow plaintiff's counsel to represent him as garnishee, but refused to allow any other or different answer to be filed than that he had filed. Plaintiff's counsel renewed this offer and request, stating to defendant the basis of Mrs. Taylor's right to the money, and that only through the garnishee could she establish her right to the money, but the request...