Troll v. Spencer

• Citation: 238 Mo. 81,141 S.W. 855
• Parties: TROLL v. SPENCER et al.
• Decision Date: 29 November 1911
• Court: United States State Supreme Court of Missouri

141 S.W. 855

238 Mo. 81

TROLL v. SPENCER et al.

Supreme Court of Missouri.

November 29, 1911.

1. TRIAL (§ 386)—INSTRUCTIONS—EQUITY CASES.

Instructions are unnecessary and out of place in equity cases.

2. APPEAL AND ERROR (§ 847)—INSTRUCTIONS —EQUITY CASES.

Instructions given in equity cases will not be reviewed, for the appellate court is bound to review the evidence and decide the case on its merits.

3. TRIAL (§ 374)—VERDICTS—EQUITY CASES.

Findings of the jury made in equity cases are merely advisory, and may be disregarded by the chancellor.

4. TRIAL (§ 383)—DEMURRERS TO EVIDENCE —EQUITY CASES.

A demurrer to the evidence is improperly used in chancery practice, and amounts to no more than finding of facts that the plaintiff has not established his case.

5. APPEAL AND ERROR (§ 260)—EXCEPTIONS— DEMURRERS TO EVIDENCE—EQUITY CASES.

Where a demurrer to the evidence is sustained in an equity case, an exception thereto is unnecessary to obtain review, the judgment being assailed as being without equity.

6. COMPROMISE AND SETTLEMENT (§ 8)—DECEIT—KNOWLEDGE.

Circumstances revealed to those making a settlement cannot at a subsequent time be relied upon as misrepresentations; for he who knows cannot be deceived.

7. COMPROMISE AND SETTLEMENT (§ 19)—SETTING ASIDE.

Equity delights in amicable settlements, and will not disturb one, except upon satisfactory evidence of fraud or deception.

8. FRAUD (§ 50)—ACTIONS—BURDEN OF PROOF.

One alleging fraud in a transaction has the burden of proving it.

9. FRAUD (§ 50)—ACTIONS—PRESUMPTIONS.

Fraud cannot be presumed or inferred from mere suspicion.

10. EXECUTORS AND ADMINISTRATORS (§ 450) —COMPROMISE BY EXECUTRIX—FRAUD—EVIDENCE—SUFFICIENCY.

In an action to set aside a settlement made by an executrix with grain brokers, with whom decedent had an account, evidence held insufficient to show that defendants had fraudulently concealed the extent of decedent's interest in certain speculative deals.

In Banc. Appeal from St. Louis Circuit Court; Jas. E. Withrow, Judge.

Action by Harry Troll, Public Administrator of the City of St. Louis, in charge of W. J. Taylor's estate, against Mary E. and Harlow B. Spencer, executors of the last will of Corwin H. Spencer, deceased. From a judgment for defendants, plaintiff appeals. Affirmed.

Schnurmacher & Rassieur, for appellant. Boyle & Priest and T. E. Francis, for respondents.

LAMM, J.

Plaintiff sues in equity; the general object and nature of his bill is to set aside and annul a so-called "receipt or release" given by Bessie M. Taylor, executrix of W. J. Taylor's will, to the firm of Spencer & Denniston, to declare the same null and void because of fraud, and to have an accounting.

At the close of plaintiff's case, defendants demur to the evidence, the same is sustained, the court orders plaintiff's bill dismissed (which is done), and he comes up by appeal.

There are three questions here, viz.: First. Is a demurrer to the evidence in the line of allowable procedure in equity cases? Second. If so, must the party cast on such demurrer save an exception below to the ruling thereon in order to have a review of the merits on appeal? Third. If there be no such exception saved in the bill of exceptions, and if no such exception is necessary, then was the bill well dismissed? (And herein of the merits.)

A short history of the case is not amiss. The record shows that in September, 1903, and prior thereto, William J. Taylor and John F. Wright were dealing in "puts" and "calls" as partners in the grain commission business in Chicago. They were members of the Board of Trade. At that same time, Corwin H. Spencer and Uriah R. Denniston were in the same line as partners and members of said Board of Trade. Denniston lived, and had charge of the firm's office, in Chicago; Spencer lived in St. Louis. Though Taylor and Wright were partners, yet Taylor dealt in grain options on his own hook, and, it seems, on joint account with others. On September 25, 1903, Taylor was run over by a railroad train and killed. His affairs were in a bad way. Among other debts, he owed Wright, his partner, forty or fifty thousand dollars. He died testate, leaving as his widow Bessie M. Taylor. Nominated executrix of his will, she presently sued out letters of administration in the probate court of Cook county, Ill., qualified as executrix, and took upon herself the burden of settling the estate. After her husband's death and prior to her said appointment, Warren Pease was her personal attorney. After her appointment, Pease was her attorney as executrix. He seems to have been equipped with zeal and ability in that behalf. Several "cards" were found on the person of Mr. Taylor at the time he was killed, and several others were found in his papers in the office of Taylor & Wright, which cards came into her possession at once. They bore the caption numerals "35," and have figures, words, and signs pointing to his trading in grain through Spencer & Denniston, as his brokers, on the Boards of Trade of Chicago and St. Louis, selling in one market for future delivery in May and December, and buying in the other for like delivery. On those cards were figures, abbreviations, and cant trade words— among the latter, the words "long" and "short"; "long" meaning "bought," and "short" meaning "sold." It seems, speaking in brokers' idiom, that these deals were in the nature of "staddles" or "spreads," and that some of his trades were "open trades." It seems these cards did not bear Mr. Taylor's name; and that, barring the possession of these cards, he died leaving behind no memoranda or other evidence that he was dealing in grain options through Spencer & Denniston. It seems, also, that it was customary for those dealing in puts and calls on the Chicago Board of Trade to get such cards with only numeral captions; the object being to conceal the identity of the person, and possibly the state of his deals, from those not initiated in the mysteries of option dealing, and whose curious eyes might fall on the cards.

Presently Mr. Pease applied to Denniston, for information, and was informed by him that Taylor had been dealing in grain through his firm as brokers, and that he had bought grain for May and December delivery on the St. Louis market, and had sold for the same delivery on the Chicago market. The books of that firm showed three accounts. One was the joint account of three persons, each of them equally interested in the deals, viz., Taylor, Martin, and Denniston; another was the joint account of Taylor and Martin; and another was the separate account of Taylor. This separate account bore the caption "35 Special." The joint accounts, as shown by the books, were under the caption "35," and there were letters (viz., "T," "M," and "D") prefixed to the separate deals, indicating the persons who were interested in them. There were earmarking memoranda on these books in ink and pencil. It appears that it was customary to designate an account and card by a number when the deals were joint, as well as when individual. Mr. Pease called to his assistance a friend of Mr. Taylor, a Mr. Fyfe, an expert Board of Trade man, and a Mr. Bates, another expert of like ilk. Fyfe, in the company of Pease, examined the books of Spencer & Denniston. Those books showed the individual account (35 Special) had been closed prior to Mr. Taylor's death; and that he stood indebted to Spencer & Denniston in the rise of $3,000 on that account. They also showed that joint account 35 was open; and that if at the time of Taylor's death such deals had been closed at prevailing market prices no profit was coming to him therefrom. Presently, however, after the appointment of Mrs. Taylor as executrix, the market turned in favor of these deals, and in November, 1903, she, through Mr. Pease, demanded the deals be closed; and that she be allowed to take down the profits for the benefit of the estate. Thereat there was a long negotiation. Neither the executrix nor Mr. Pease knew whether account 35 was a joint account, in part of Taylor, Denniston, and Martin, and in part of Taylor and Martin, or was the separate and exclusive account of Taylor. On that issue of fact hinged the amount due Taylor's estate. In that condition of things (and doubting the showing made by the books), they called on Denniston for proof, and accepted the proof furnished, viz., the affidavit of a Mr. Bailey, bookkeeper of Spencer & Denniston, and the oral statement of Mr. Denniston. If their statements were true, Taylor had a third interest in the deals made by Denniston, Martin, and Taylor on joint account, and a one-half interest in the deals made by Martin and Taylor on joint account. On this basis, on the 11th day of November, 1903, because of said favorable turn in the market, there was due Taylor's estate the rise of $17,000 on account 35. Deducting therefrom Taylor's indebtedness on account 35 Special, it left a balance due the estate of about $14,000. It was without money to litigate. The executrix had the cards found in Taylor's possession. She had the statements of Bailey and Denniston that account No. 35 was a joint account. Pease, her attorney, and her expert friend, Mr. Fyfe, had free access to the books of Spencer & Denniston, and Fyfe examined them.

Armed with all the information from those sources, and guarded by the advice of counsel learned in the laws, and her expert friends, Bates and Fyfe, it was deemed best by those interested in the Taylor estate to settle the matter. The plan adopted was as follows: The throwing of a large amount of wheat on the St. Louis market to close the deals before the option time of delivery, it was feared, would demoralize that market, and unfavorably affect other deals there. Accordingly Spencer & Denniston offered to take an assignment of the interest of the Taylor estate in account No. 35, and this offer was accepted. To this end the attorney for the executrix caused the controversy...