Thias v. Siener

• Decision Date: 09 March 1891
• Citation: 15 S.W. 772,103 Mo. 314
• Parties: Thias, Appellant, v. Siener
• Court: Missouri Supreme Court

15 S.W. 772

103 Mo. 314

Thias, Appellant, v. Siener

Supreme Court of Missouri, First Division

March 9, 1891

Appeal from St. Louis City Circuit Court.

Affirmed.

James Carr and James A. Carr for appellant.

(1) The law merchant did not require the appellant as indorsee to present the note or have it presented for payment, protested etc. Story on Promissory Notes, secs. 268-9. When a contract has been fully performed by one party, a court of equity will decree a specific performance of it by the other party, where it is not out of his power to perform it. Halsa v Halsa, 8 Mo. 303; Sutton v. Hayden, 62 Mo. 101; Anderson v. Shockley, 92 Mo. 250; West v Bundy, 78 Mo. 407; Webb v. Toms, 86 Mo. 591; Anderson v. Scott, 94 Mo. 637; Bigelow v. Ames, 108 U.S. 10; Elliot v. Sackett, 108 U.S. 132; Preston v. Preston, 95 U.S. 200; Gunton v. Carroll, 101 U.S. 426; Snell v. Ins. Co., 98 U.S. 85. (2) This is not simply a case of a pure, unmixed mistake of law, against which the courts of equity will not relieve. It is a case of false and fraudulent representation, of both law and fact, made by respondent and respondent's son, to a very ignorant old woman who reposed the most implicit confidence in everything the respondent and her son told her. They had an undue influence over her, and talked her into giving up her money to respondent. In such case a court of equity will grant relief. Garrison's Adm'r v. Williams, 44 Mo. 478; Rankin v. Patton, 65 Mo. 378; Bradshaw v. Yates, 67 Mo. 221; Caspari v. Church, 82 Mo. 649; Summers v. Coleman, 80 Mo. 488; Ford v. Hennessy, 70 Mo. 580; Gay v. Gillilan, 92 Mo. 250; Cadwallader v. West, 48 Mo. 483; Griffith v. Townley, 69 Mo. 13. (3) The appellant was not barred by laches. Kelley v. Hurt, 61 Mo. 463; Bradshaw v. Yates, 67 Mo. 221; Kline v. Vogel, 90 Mo. 239; Michaud v. Girod, 4 How. 503; Brashier v. Gratz, 6 Wheat. 528; Sullivan v. Railroad, 94 U.S. 807.

Rassieur & Schurmacher for respondent.

The demurrer to the petition was properly sustained: First. It improperly blends in one count matters of law and equity. Peyton v. Rose, 41 Mo. 257; Billon v. Larrimore, 37 Mo. 375; Henderson v. Dickey, 50 Mo. 161. Second. The principal matter involved, and which constitutes the basis of the plaintiff's alleged cause of action, is an unadjudicated demand. Before equity will lend its aid, and grant equitable relief to enforce payment of a legal demand, the same should be first ascertained and determined by a judgment at law. Martin v. Michael, 23 Mo. 50; Crim v. Walker, 79 Mo. 335. Third. The petition or bill shows, on its face, that plaintiff's cause of action, if any she had, is barred by lapse of time, and lost by laches on her part. Perry v. Craig, 3 Mo. 516.

OPINION

Sherwood, P. J.

This proceeding was instituted the twenty-first of January, 1888. The amended petition is as follows:

"The plaintiff would respectfully state to this honorable court that she is, and during all the time of the facts and transactions hereinafter stated has been, a resident of the said city of St. Louis, state of Missouri, and she is, and at all the time and times hereinafter stated and set out was, a widow, and that the said defendant is, and has been, during all the time of the facts and transactions hereinafter stated and set out, a resident of the said city aforesaid, and during all the time, and prior thereto, of the facts and transactions hereinafter stated and set out, and now is, a widow, and that the relationship existing between the said plaintiff and the said defendant was and is, that the daughter of plaintiff was married to Charles P. Siener, the son of the defendant, and that said relationship between the said plaintiff and said defendant existed from the year A. D. 1870.

The plaintiff would further state to this honorable court that, by reason of the said relationship aforesaid, an intimacy and affection, and mutual trust and confidence, was engendered and created between the families of the said plaintiff and the said defendant, and especially between the said plaintiff and the said defendant, who was an especially earnest and devout christian woman, and attended with usual and singular promptness and regularity the services of the church of which she was a member; and by reason of the relationship aforesaid, the high christian character of the said defendant, the social relations and associations, the friendship, affection and confidence between the families of the said plaintiff and of the said defendant created the utmost and greatest trust and confidence on the part of plaintiff in the honesty, integrity and trust of said defendant, Josephine Siener, which was well known by the said defendant at the time of the facts and transactions hereinafter stated.

"Therefore the said plaintiff complains to this honorable court, and, for complaint against the said defendant, Josephine Siener, states that, on or about the first day of September, A. D. 1875, during the relations between plaintiff and defendant as aforesaid, the said defendant was engaged in a real-estate transaction, wherein she was exchanging certain real estate, owned by her in Jefferson county, state of Missouri, for certain real estate fronting thirty-eight feet on the south line of Palm street and having a depth southwardly of eighty feet in city block 336 of the said city of St. Louis, and that there was a large difference between the values of said properties which the said defendant had to pay in cash to accomplish the exchange of said properties and secure the said real estate in the said city of St. Louis, aforesaid; that, by reason of the family relations aforesaid, and the confidence that existed between the families of plaintiff and defendant, and between plaintiff and defendant it was well known to and by said defendant and her said son, Charles P. Siener, husband of the daughter of plaintiff, as aforesaid, that, at and during this time, to-wit, September, A. D. 1875, the plaintiff had in her personal possession a large sum of money in cash, to-wit, the sum of $ 1,900, and that the said defendant desiring to make the exchange of said real estate and secure the said real estate in the city of St. Louis, and, not having the cash money to pay the difference necessary to accomplish said exchange, thereupon the said defendant authorized and empowered her said son, Charles P. Siener, also son-in-law of the plaintiff, to go to the plaintiff and apply to her to loan said defendant the said sum of $ 1,900, for which the said defendant would execute and deliver to plaintiff her certain promissory note, and that the said defendant being thus enabled to perfect and accomplish said exchange of properties and acquire a clear title to said real estate in the said city of St. Louis, would, thereupon, make, execute and deliver to plaintiff a deed of trust upon said real estate in said city of St. Louis to secure the payment of said sum of $ 1,900 and the interest thereon, and that, thereupon, the plaintiff agreed to make said loan of $ 1,900 to said defendant, and that, subsequently, to-wit, on the sixth day of September, A. D. 1875, said loan was consummated and the said plaintiff delivered and paid over to the said defendant, through her said son, Charles P. Siener, the sum of $ 1,900 in cash, and received from the said defendant, through and by said Charles P. Siener, a promissory note which was represented to plaintiff as the note of said defendant and the said Charles F. Siener, which said note is filed herewith and made a part thereof; that, thereupon, to-wit, on the fourteenth day of September, A. D. 1875, the said defendant consummated said exchange of aforesaid real estate in the said city of St. Louis, in her own name and for her sole use, benefit and enjoyment, and that she, the said defendant, has owned said real estate in said city of St. Louis, in her own name, from said fourteenth day of September, 1875, to the present time, and now owns the same, and has, during all the time from the date of acquiring the same, received the large income derived from the rentals of the premises situated on said real estate, for her sole benefit and enjoyment and now continues to receive the same.

"The plaintiff would further state to the honorable court that, by nativity, she is a German woman, and is not acquainted or familiar with the English language, and that, at the time of receiving said note and making said loan, and since that date, the said plaintiff could not read the English language either in print or in writing, which fact was well known to said defendant at the time of securing said loan and making and delivering said note to plaintiff, and that, at the time of the delivery of said note it was represented and stated to her in the German language by the said defendant, that the said note was executed by the said defendant and her said son, Charles P. Siener, and that, by reason of the said relationship between the said plaintiff and the said defendant and the great confidence and trust reposed in defendant by the said plaintiff, which fact the said defendant at the time well knew, she, the said plaintiff, not being able to read said note written in English, believed the statements and representations made by defendant and her son to be true; that the plaintiff did not know, nor was she informed by the said defendant or her said son, that said note was executed by said Charles P. Siener to the order of said Josephine Siener and indorsed by said Josephine to the plaintiff; neither was the said plaintiff informed by the said defendant or her said son, that said note was payable at the Capital Bank as it provided, nor was said plaintiff informed by the said d...