Wahl v. Cunningham

• Citation: 56 S.W.2d 1052,332 Mo. 21
• Decision Date: 31 December 1932
• Docket Number: 31355
• Parties: James S. Wahl v. F. J. Cunningham and Citizens' Trust Company and Faris Cunningham, Administrators of Estate of John A. Cunningham, Appellants
• Court: Missouri Supreme Court

56 S.W.2d 1052

332 Mo. 21

James S. Wahl v. F. J. Cunningham and Citizens' Trust Company and Faris Cunningham, Administrators of Estate of John A. Cunningham, Appellants

No. 31355

Supreme Court of Missouri

December 31, 1932

Appeal from Scott Circuit Court; Hon. G. C. Walker, Judge.

Affirmed.

Chas G. Shepard and Moore & Fitch for appellants.

(1) Under the issues raised by the pleadings, this cause was properly one in equity and should have been tried as such. Secs. 776, 779, R. S. 1929; Doe Run Lead Co. v Maynard, 283 Mo. 676; Lee v. Conran, 213 Mo 412; Fulton v. Fisher, 239 Mo. 132; Dorris Motor Car Co. v. Colburn, 307 Mo. 159; Clyburn v. McLaughlin, 106 Mo. 524; Swope v. Weller, 119 Mo. 565; Griffin v. Nicholas, 224 Mo. 290; Randolph v. Ellis, 240 Mo. 219. (2) The pleadings properly determine the issues and the method of the trial. The court, in determining the method of trial, must consider the fullest latitude under the pleadings to determine the question of whether a case is properly an action at law and trial by a jury or is a suit in equity and trial by the court or a reference. This rule, if applied, would have required this cause to be tried either as a suit in equity or under compulsory reference. McCormick v. St. Louis, 166 Mo. 337; Ittner v. St. Louis Exposition Assn., 97 Mo. 567; Bank of Oak Ridge v. Duncan, 40 S.W.2d 658; Kline Cloak & Suit Co. v. Morris, 293 Mo. 494; Barnes v. Barnes, 282 Ill. 593; Ely v. King-Richardson Co., 265 Ill. 148; 1 R. C. L. 222; 10 R. C. L. pp. 391, 508, 509. (3) Compulsory references, or references without agreement, have been held proper by this court under pleadings in various classes of cases: (a) Where a long account is involved. Secs. 976, 1426, R. S. 1919; Williams v. Railroad Co., 153 Mo. 495; Wentzville Tobacco Co. v. Walker, 123 Mo. 671; Third Natl. Bank v. Owen, 101 Mo. 584; Small v. Hatch, 151 Mo. 306. (b) Where an account contains many items, it has been held to be a "long account," within the meaning of the reference statute, in following cases: Natl. Union Fire Ins. Co. v. Nevils, 217 Mo.App. 630; Francisco v. Rowland, 14 Mo.App. 600; Smith v. Haley, 41 Mo.App. 611; Ajax Rubber Co. v. White, 216 Mo.App. 283; Briscoe v. Kinealey, 8 Mo.App. 76; Bank of Oak Ridge v. Duncan, 40 S.W.2d 658; McCormick v. St. Louis, etc., 166 Mo. 336; State ex rel. v. Hurlstone, 92 Mo. 330. (c) Trial court and appellate court, on appeal, may make their own findings where pleadings make the case one of proper compulsory reference. State ex rel. v. Hurlstone, 92 Mo. 332; Caruth-Brynes Hdw. Co. v. Walter, 91 Mo. 484. (4) Plaintiff relied wholly on oral testimony to establish his claims of about eighteen years standing. Where such testimony is not corroborated it has little weight. The trial was had in May, 1931. The alleged agreements relied on by plaintiff, if made, were made in May, 1913, eighteen years prior to witnesses' testimony. Such oral testimony should be given but very little weight on establishing his claim as against the estate of one who died after the alleged agreement was made. 3 Jones on Evidence, secs. 1070-71; 1 Greenleaf on Evidence, sec. 200 (12 Ed.), Redfield's Notes; 22 C. J. 289, secs. 318, 319; 17 Cyc. 806-7 and 8; 1 Greenleaf on Evidence (16 Ed.) sec. 200; Wales v. Holden, 209 Mo. 558; Fanning v. Doane, 139 Mo. 411; Daudt v. Steiert, 205 S.W. 224; Grantham v. Gossitt, 182 Mo. 672; Kinney v. Murray, 170 Mo. 706; Pitts v. Weakley, 155 Mo. 138; Russell v. Sharp, 192 Mo. 288; Woods v. Land, 30 Mo.App. 181; Hafner v. Miller, 299 Mo. 227; McFall v. Hampe, 267 S.W. 58; Collins v. Harrell, 219 Mo. 306; McElvain v. McElvain, 171 Mo. 257; Kirk v. Middlebrook, 201 Mo. 292. (5) "If credit is given by the promisee in any extent to a third person, the promise of the other party is collateral, and falls within the statute. The rule has been applied and followed by the courts of this State in Chick v. Coal Co., 78 Mo.App. 234; Newton Grain Co. v. Pierce, 106 Mo.App. 200." The above rule is stated in Wahl v. Cunningham, 320 Mo. 71. The above is the general rule: 25 R. C. L. secs. 74 and 75; Sec. 56, Brandt on Suretyship and Guaranty; Price v. Ry. Co., 40 Mo.App. 194; Sec. 2967, R. S. 1929; Mueller v. Woodson, 198 S.W. 1135; 29 A. & E. Ency. of Law (2 Ed.) pp. 921, 923; 27 C. J. 142, notes 65, 66, 67, and pp. 134-5, notes 16, 17. (6) "An allegation of a conclusion of law raises no issue; need not be denied and its truth is not admitted by a demurrer to the complaint containing it." Gibson v. Railroad, 225 Mo. 473, 481; Mallinckrodt v. Nemich, 169 Mo. 397; Schiffman v. Schmidt, 154 Mo. 214; Lappin v. Nichols, 263 Mo. 290; State ex rel. v. Dick, 270 Mo. 113. (7) Party cannot sue on one contract or cause of action and recover on another. Houston v. Tyler, 140 Mo. 264; Ingeerson v. Railroad, 205 Mo. 335; Schneider v. Patton, 175 Mo. 723; Henry County v. Citizens Bank, 208 Mo. 224; Mark v. Cooperage Co., 204 Mo. 261; Koons v. St. Louis Car Co., 203 Mo. 254. (8) The relation between the bank and its depositors is that of debtor and creditor. 1 Morse on Banking, sec. 289 (5 Ed.); Bank v. Massey, 192 U.S. 145; Utley v. Hill, 155 Mo. 259. (9) The contract of a surety, who acts without compensation, will be strictly construed in his favor. Schuster v. Weiss, 114 Mo. 116. (10) "The disability of one of the original parties to a contract or cause of action, in issue and on trial, where the other party is dead, and the survivor is a party to the suit, is coextensive with every occasion where such instrument or cause of action may be called in question." The above is in harmony with our present statute. The testimony of Mr. Wahl as to conversations with John Cunningham at St. Louis concerning the money borrowed from Lemp Brewing Company, the delivery of the check to John Cunningham, and conversation with John Cunningham, who was shown to be dead, was wholly incompetent. Objections to such testimony was made by the defendants, overruled by the court, and the defendants excepted. The admission of such testimony was reversible error. Sec. 1723, R. S. 1929; Chapman v. Dougherty, 87 Mo. 617; Edmonds v. Scharff, 279 Mo. 87; Leiber v. Leiber, 239 Mo. 19; Banking House v. Rood, 132 Mo. 256; Griffin v. Nicholas, 224 Mo. 327; Rector v. Goodloe, 298 Mo. 279; Eaton v. Curtis, 319 Mo. 670; Weir v. Thieman, 90 Mo. 443; Wahl v. Cunningham, 320 Mo. 57, 80-2. (11) The modification which the court made in said instructions was a direct instruction, holding that the Statute of Frauds could not apply under defendants' evidence. This was error. Wahl v. Cunningham, 320 Mo. 71; Sec. 2967, R. S. 1929; Mueller v. Woodson, 198 S.W. 1135.

Ward & Reeves for respondent.

(1) The issues in this case presented no case in equity plaintiff's petition was an action at law for breach of contracts, and defendants' answer merely a denial of plaintiff's right to recover, and three counterclaims, also legal actions for breach of contract; and no equitable rights or remedies involved. Equity is the correction of that wherein the law, by reason of its universality, is deficient and its jurisdiction depends upon the existence of equitable interest and inadequacy of legal remedy. Kansas City v. Surety Co., 203 Mo.App. 152; Engle v. Powell, 154 Mo.App. 238. (2) According to appellants' brief they are unable to tell whether this was a suit in equity to be tried before the court, or a compulsory reference case to be tried before a referee. The case is neither an equitable case nor one for a referee, but is a simple question of breach of contract and the right of plaintiff to recover thereon, or breach of contract and right of defendants to recover on their counterclaim. There was no accounting between the parties; no long account involved. (a) The whole law of reference is governed by statute, and a party's right to trial by jury, as guaranteed by Section 28, Article 2 of the Constitution of Missouri, can only be defeated by a reference when the statute especially authorizes it. A compulsory reference encroaches upon the constitutional right of trial by jury and ought not be allowed, unless the cause comes within the spirit as well as the letter of the statute. A. B. Smith Lbr. Co. v. Ins. Co., 6 S.W.2d 927; Browning v. Railroad, 284 Mo. 446; Sec. 976, R. S. 1929; Creve Coeur Co. v. Tamm, 138 Mo. 385; Thornton v. Life Assn., 7 Mo.App. 544. (b) The ground contended for by appellants here is that it is either an action in equity for the court or a reference, and if it should be for reference, then appellants contend that it is an action involving a long account. The statute providing for reference in a case involving a long account is an exception to the right of trial by jury, and cannot be extended to apply to any case unless it clearly appears to fall within the letter and spirit and is expressly authorized by the statute; and no compulsory reference can be had except in a case involving a long account between the parties. A. B. Smith v. Ins. Co., 6 S.W.2d 927; Father Matthews v. Fitzwilliams, 12 Mo.App. 447; Ittner v. Assn., 97 Mo. 567; Creve Coeur Co. v. Tamm, 138 Mo. 389; Snider v. Crutcher, 137 Mo.App. 130; Roth Tool Co. v. Spring Co., 146 Mo.App. 31; Browning v. Ry. Co., 284 Mo. 446; Klingensberg v. Davis, 268 S.W. 101; Natl. Bank v. Laughlin, 305 Mo. 31. (c) An "account," as used in Section 976, R. S. 1929, in regard to a reference, means "a detailed statement of the mutual demands in the nature of debts and credits between the parties arising out of a contract or some fiduciary relation." Ittner v. Assn., 97 Mo. 567; Reed v. Young, 248 Mo. 615; Browning v. St. Ry. Co., 284 Mo. 446; Pollard v. Carlyle, 218 S.W. 922; Kenneth v. Bank, 96 Mo.App. 134; Creve Coeur Co. v. Tamm, 138 Mo. 290; Klingensberg v. Davis, 268 S.W. 101. (d) "The right to refer the issues...