Wolff v. Schaeffer

• Citation: 74 Mo. 154
• Parties: WOLFF v. SCHAEFFER, Appellant.
• Decision Date: 31 October 1881
• Court: United States State Supreme Court of Missouri

74 Mo. 154

WOLFF

v.SCHAEFFER, Appellant.

Supreme Court of Missouri.

October Term, 1881.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Louis Wolff died leaving a will, by which he devised the residue of his estate, after the payment of specified legacies, to his widow, Dorothea. On the 25th of July, 1872, Christian Staehlin qualified as executor, giving a bond in the sum of $60,000, with Henry B. Berning and others as sureties, and immediately took into his possession assets of the estate to the value of $45,993.89. On the 15th of September, 1873, upon petition of the residuary legatee, the probate court adjudged this bond insufficient, and ordered that a new one be given. The executor requested defendant Schaeffer to go on the new bond, telling him that John Clemens, J. D. Decker and Henry B. Berning, who was known to Schaeffer as a man of wealth, would go on it with him; that they had promised to do so. On the 27th of September, the last day for filing the bond, Schaeffer went to the probate court and signed it. At that time no names were in the body of the bond or signed to it. Schaeffer's name was inserted when he signed. When Schaeffer was examined as to his sufficiency, the probate judge was informed, in Schaeffer's presence and hearing, that Berning was also to sign; upon which the judge remarked that the bond was good enough with Schaeffer alone. Schaeffer left the court-house satisfied that Berning would sign. Later in the day a deputy clerk of the court took the bond to Berning's house to obtain his signature, but he was not at home, and the bond was approved and filed without his name. The next day he called at the clerk's office to sign, but finding the bond already approved, left without doing so. Schaeffer was informed of this fact within a few days thereafter.

At the time of filing the second bond, Staehlin was insolvent. Six months afterward an order was made directing him to pay to Mrs. Wolff, as residuary legatee, $5,000. Her agent called on Schaeffer and told him that he would get out an execution against him unless he paid this money. Thereupon Schaeffer paid it to the agent, who handed it over to Mrs. Wolff. Staehlin knew nothing of this; and in January, 1875, made final settlement without taking credit for this payment. He had a few days before obtained a discharge in bankruptcy. According to this settlement he appeared to be indebted to the estate in the sum of $30,806.09. This sum was made up in part of two notes due from himself to the deceased, and in part of notes of Gehrke, Ittner and Adamson, amounting in the aggregate to $18,000, besides interest. These latter notes Staehlin had pledged on the 3rd day of October, 1872, to the Central Savings Bank of St. Louis, as collateral security for an indebtedness of his own to the bank, and the bank had used the proceeds of the notes to pay the said indebtedness.

Staehlin having failed to pay the amount found against him upon the final settlement, Mrs. Wolff instituted this proceeding in the probate court by scire facias against Schaeffer as surety in the second bond, and obtained judgment, from which Schaeffer appealed to the circuit court. In that court he defended on the grounds that he had never executed and delivered the bond, that Berning had failed to sign, that he was not liable for any waste committed by the executor before the giving of the sccond bond, and, by way of equitable defense, that the executor was induced by the fraud of plaintiff's agent, in suppressing the fact of payment of the $5,000, to make final settlement without crediting himself with that payment.

When the cause was called, a jury was empaneled, and the trial progressed until all the testimony was in and instructions prayed, when the court, of its own motion and against the objections of both parties, discharged the jury, took the cause as submitted and rendered a decree for plaintiff for $27,706.60. From this there was an appeal to the St. Louis court of appeals, where the decree was reversed for error in discharging the jury. 4 Mo. App. 367. Upon a second trial in the circuit court the facts appeared to be substantially as stated above, and plaintiff again had judgment for the same amount, which judgment was affirmed by the St. Louis court of appeals, (6 Mo. App. 589,) and defendant then appealed to this court.

Madill & Ralston for appellant.

Defendant was not liable because as to him the bond was never executed or delivered. State v. Potter, 63 Mo. 212; Gasconade Co. v. Sanders, 49 Mo. 192; Linn Co. v. Farris, 52 Mo. 75; Ayres v. Milroy, 53 Mo. 516; State v. Modrel, 69 Mo. 152; State v. Hewitt, 72 Mo. 603. Defendant was not liable for any portion of the estate which had in fact been squandered and lost prior to the date of the bond. State v. Paul, 21 Mo. 51; Gum v. Swearingen, 69 Mo. 553.

Finkelnburg & Rassieur also for appellant.

Kehr & Tittman for respondent.

The bond is valid and binding on...