Wischmeyer v. Richardson

• Decision Date: 23 January 1900
• Citation: 55 S.W. 74,153 Mo. 556
• Parties: WISCHMEYER v. RICHARDSON, Appellant
• Court: Missouri Supreme Court

55 S.W. 74

153 Mo. 556

WISCHMEYER v. RICHARDSON, Appellant

Supreme Court of Missouri, Second Division

January 23, 1900

Appeal from St. Louis City Circuit Court. -- Hon. Leroy B. Valliant Judge.

Affirmed.

J. A Henderson and Lubke & Muench for appellant.

Rassieur & Rassieur for respondent.

In an action at law, although the case is tried by the court sitting as a jury, if no instructions are asked or given, the judgment must be affirmed, if there is substantial evidence in the record to support it. Clark v. Railroad, 127 Mo. 255; Miller v. Breneke, 83 Mo. 163; Hamilton v. Boggess, 63 Mo. 233; Wilson v. Railroad, 46 Mo. 36; Heman v. Handlan, 59 Mo.App. 490; Gentry v Templeton, 47 Mo.App. 55.

BURGESS, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

BURGESS, J.

This is an action of replevin without bond by plaintiff as administrator of Gerhard Henry Wischmeyer, deceased, against William C. Richardson, public administrator, in charge of the estate of Anna Eliza Wischmeyer, deceased, to recover the possession of three promissory notes, namely:

A note of C. H. Wischmeyer for $ 3,000, dated January 21, 1895, payable to the order of Anna Eliza Wischmeyer, now deceased, six months after said date, with interest at six per cent per annum.

A note of G. A. Wischmeyer for $ 3,000, dated January 21, 1895, payable to the order of said Anna Eliza Wischmeyer twelve months after date, with interest at six per cent per annum.

A note of the German Evangelical St. Jacob's Congregation for $ 500, dated July 29, 1889, payable to the order of said Anna Eliza Wischmeyer one year after date, with interest at five per cent per annum.

Plaintiff recovered judgment for the two three thousand dollar notes only, or at his election, the value thereof, which the court found to be $ 6,000, with interest at six per cent per annum, from January 3, 1896, aggregating the sum of $ 6,338. After unsuccessful motion for a new trial, defendant appeals.

Gerhard H. Wischmeyer died November 25, 1885, leaving a will, by which he gave $ 25 to each of his children, and the residue of his estate to his widow said Anna Eliza, for and during her life, with remainder over to his children and grandchildren in certain proportions. There was no administration upon his estate at that time, but the widow took possession of all the property, and managed it as her own. At the time of the death of said Gerhard H. Wischmeyer he owned some real property, and a stock of dry goods, which on January 21st following, was inventoried and invoiced at $ 11,215.86.

On that day the widow sold the stock of dry goods to Casper H Wischmeyer and Fred Gruer, her son and son-in-law, for the invoice price; she had no other estate or means whatsoever, excepting what she derived under the will of her husband. The evidence also tends to show that the sale to the son and son-in-law was made by Mrs. Wischmeyer upon the following terms: They were to pay the $ 4,000 indebtedness ($ 3,000 to Knippenberg and $ 1,000 to Gustave, for which the purchasers gave them their notes) and they paid her $ 215.86 in cash, and gave her their notes for the balance of the purchase price, $ 7,000. On July 21, 1886, they reduced their indebtedness to her, by payments to her of $ 5,500, and each gave her his renewal note for $ 2,750. On that day Casper H. Wischmeyer and Gruer sold the business to Gustave A. Wischmeyer for $ 12,000, upon the following terms: They owed him $ 1,000, which was deducted from the purchase price, and he agreed to pay the $ 3,000 debt to Knippenberg, and gave them his notes for the balance of the purchase price, $ 8,000. He reduced this indebtedness by payments out of his own means, eventually paying off Gruer altogether, but still owing his brother $ 3,000. In the meantime, in 1892, Gruer paid Mrs. Wischmeyer the note for $ 2,750 which she held against him. It was...