White v. Black
| Decision Date | 04 December 1905 |
| Parties | JAMES P. WHITE, Trustee, Appellant, v. M. E. BLACK, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Linn Circuit Court.--Hon. John P. Butler, Judge.
REVERSED AND REMANDED (with directions).
Cause reversed and remanded.
A. W Mullins, W. H. Nichols and H. P. Lander for appellant.
(1) No gift was pleaded; nor was there evidence in support of it. Bliss on Code Pleading, 352; Swartz Co. v. Vanstone, 62 Mo.App. 241; Northrup v. Ins. Co., 47 Mo. 435; Musser v. Adler, 86 Mo. 445; Manufacturing Co v. Ball, 43 Mo.App. 504; Kersey v. Garton, 77 Mo. 645; Plow Co. v. Wayland, 81 Mo.App. 305; Russell v. Whitely, 59 Mo. 196. (2) The court gave the plaintiff's declaration of law, numbered 4, and having found the facts to be as hypothecated therein, the court should have rendered judgment for plaintiff for the full amount of the note sued on, and foreclosed the mortgage and erred in not doing so. If the "receipt, in evidence for $ 1,450 had no valuable consideration," on account of any indebtedness, "to support it," then it was and is a nullity as a payment. Land Co. v. Rhodes, 54 Mo.App. 129; Aull v. Trust Co., 149 Mo. 1-17; 19 Am. and Eng. Ency. of Law (1 Ed.), pp. 1115-1116. (3) There was no issue in the case as to a gift from Mrs. White to the defendant, Mrs. Black, and if there had been evidence with respect to such gift, it could have been of no avail to the defendant. "An affirmative defense is of no avail if not pleaded, though the testimony disclose it." Dinglidein v. Railroad, 9 Bosw. (N. Y.) 79; Swartz Bros. Com. Co. v. Vanstone, 62 Mo.App. 244. (4) The case is an action at law under the statute, and not a suit in equity. R. S. 1899, secs. 4342, 4343, 4348; Smith v. Finn, 77 Mo. 499; Thayer v. Campbell, 9 Mo. 277; Riley's Adm'r v. McCord's Adm'r, 24 Mo. 266; Weary v. Wittmer, 77 Mo.App. 546; Estes v. Fry, 166 Mo. 70, 79.
A. A. Bailey and West & Bresnehen for respondent.
(1) Under this second defense defendant had the right to offer evidence of any valid agreement between herself and the payee of the note which would operate as a discharge of that part of the debt alleged to have been paid. McLaughlin v. Webster, 141 N.Y. 76; Carpenter v. Soule, 88 N.Y. 251. (2) Under the second defense pleaded, defendant offered evidence of an executed gift of $ 1,450, evidenced by receipt. Carpenter v. Soule, 88 N.Y. 251; 14 Am. and Eng. Ency. of Law (2 Ed.), 1009, 1031, 1032; Bedell v. Carll, 33 N.Y. 581-584. (3) Plaintiff complains of the refusal, by the court, to give some of his declarations of law. The giving or refusal of declarations of law in an equity case is not a ground for reversal. Brandon v. Dawson, 63 Mo.App. 359; Freeman v. Wilkerson, 50 Mo. 554; Hunter v. Miller, 36 Mo. 144; Kostuba v. Miller, 137 Mo. 161.
The plaintiff's suit is based upon a promissory note executed by defendant, payable to S. M. White, dated March 1, 1897, and due one year after date, for the sum of $ 2,900, with six per centum per annum from date, indorsed; "Pay to the order of James P. White, trustee," by said S. M. White; and further, to foreclose a certain mortgage executed on the same date by defendant on certain land situate in Linn county, Missouri, to secure the payment of said note, wherein one Harry Lander was made trustee. The petition alleges that said S. M. White, on January 16, 1904, the date of transfer of said note, also by writing, constituted plaintiff as her trustee, and conveyed to him as such the said mortgage. The answer admits the execution of said note, and further alleges: That after said note became due and before assignment to plaintiff, the defendant paid said S. M. White the sum of $ 1,450 on said note and mortgage, for which the said S. M. White executed a receipt to defendant, and released said land from that amount of said incumbrance. Further answering, defendant alleges that the said S. M. White is the defendant's aunt and plaintiff's mother, that for thirty years next preceding the 18th day of December, 1903, said S. M. White lived with defendant, during which time she furnished her with board, washing, care and attention; that frequently during all of said time said S. M. White stated to the defendant and agreed to pay her for the said services, and during all said time defendant expected compensation therefor; that up to said date of December, 1903, the said S. M. White paid her nothing for her said services during said time, and that on said day, she, the said S. M. White, in consideration of the same, executed and delivered to defendant said receipt for $ 1,450, and released that amount from said mortgage. Defendant brings into court the amount and interest due on said note, less said sum of $ 1,450, and asks that the note and mortgage be cancelled.
Plaintiff's reply admits the execution of said receipt by S. M. White, and denies that she ever became indebted to or agreed to pay defendant for board, washing, care or attention; and further states that at the time S. M. White signed said receipt for $ 1,450 she was sick and not expected to live but a short time, and that from the effects of said sickness and medicines administered to her she did not know or understand the nature of said writing, and that it was wholly without consideration and void.
The cause was tried before the court without a jury. At the written request of the plaintiff the court made a finding of facts, the result of which was as follows: That owing to the relation of the parties there was no intention on the part of the defendant to charge the said S. M. White for board or lodging while she was staying with her; and that at the time of the execution of the receipt the said S. M. White was in the full possession of all her mental faculties and comprehended what she was doing, and that the same was intended as a gift to defendant of one-half of the said mortgage debt. Judgment was rendered in accordance with said finding, and plaintiff appealed.
The parties differ in opinion as to the nature of the proceeding the plaintiff claiming that it is an action at law, and defendant that it is a case in equity. The plaintiff asked a number of instructions which the court...
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