Yore v. Yore
| Decision Date | 29 February 1912 |
| Citation | 144 S.W. 847,240 Mo. 451 |
| Parties | JAMES H. YORE et al., Appellants, v. AUGUSTUS P. YORE |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. G. H. Williams Judge.
Affirmed.
R. P. & C. B. Williams and F. M. Eztes for appellants.
(1) The matters and things set up in plaintiffs' petition are not res adjudicata. McMahan v. Geiger, 73 Mo. 145; Comstock v. Keating, 115 Mo.App. 378; State Bank v. Bartel, 114 Mo. 276; Koekch v. Mixer, 52 O St. 207. (2) In an action by one obligor on a bond or other obligation against his co-obligor for contribution, parol evidence is admissible to show for what proportion of the liability each one is bound. Mechanics Bank v Wright, 53 Mo. 153; 9 Cyc. 904; 7 Am. & Eng. Ency. Law, 339; Mansfield v. Edwards, 136 Mass. 75; Newcomb v. Scrogan, 147 Mass. 398. (3) Sureties may by special contract vary their liability implied from their relation to the original debt and such special contract or any facts affecting or negativing the equities between the parties may be proved by parol evidence. 7 Am. & Eng. Ency. Law, 339; Robertson v. Eathrage, 82 Ill. 511; Knopf v. Morrell, 111 Ind. 507; Whitehouse v. Hanson, 42 N.H. 19. (4) So far as the right to contribution is concerned, payment of the indebtedness of Charles J. Yore in the manner in which the same was paid by the decree of May 27, 1902, was in legal effect the same as if the parties had paid the same in actual money. 6 Pomeroy's Eq. Jurisprudence, sec. 917. (5) Res adjudicata is an affirmative defense and must be pleaded in order to be available. Beattie Mfg. Co. v. Gerardi, 166 Mo. 142; Kelly v. Hurt, 61 Mo. 463.
Barclay, Fauntleroy & Cullen for respondent.
(1) The petition does not allege that plaintiffs James H. Yore and Margaret Yore McCord have paid the indebtedness of Charles J. Yore; on the contrary the petition alleges that the children of these two plaintiffs have paid the debt. A surety cannot claim contribution until he has paid the debt. When a party not bound pays a debt he is a mere volunteer and cannot recover the money back, and the debt is discharged. Burkham v. Manewal, 195 Mo. 509. Hence there can be no claim on sureties for that debt. (2) The only agreement plaintiffs endeavored to prove was that Margaret Yore McCord, James H. Yore and defendant were sureties for Charles J. Yore's indebtedness. The only proof touching payment of this sum is the final decree in the partition suit, where it is charged against the children of James H. Yore and Margaret Yore McCord. A surety cannot claim contribution for moneys not paid out. This evidence shows that some party other than the surety has paid the debt; in no event could the debt be collected from the sureties. (3) The partition suit proceedings conclusively establish that defendant did not assume any of Charles J. Yore's indebtedness, but it was assumed by plaintiffs herein (except James H. Yore and Margaret Yore McCord). Bobb v. Graham, 89 Mo. 200. The liability of the signers of the mortgages for this indebtedness was one of the points litigated in the partition suit, as the court was asked to charge against those signing the mortgages the amounts advanced. The court acted on this prayer and charged these amounts to these parties; the decision is conclusive that the amounts are correctly charged. Spratt v. Early, 199 Mo. 501; Buchanan v. Smith, 75 Mo. 463; Garton v. Botts, 73 Mo. 274. Where the question of liability has been litigated, the judgment is conclusive in its findings and the issue cannot be reopened. Hoyt v. Greene, 33 Mo.App. 240; Harmon v. Auditor, 123 Ill. 122; Goldschmidt v. County, 37 Minn. 49. (4) Though parties may all be either plaintiffs or defendants a judgment fixing the liability inter sese is conclusive thereof, even if in subsequent suit where they are plaintiff and defendant. Wiggins v. St. Louis, 135 Mo. 569; Louis v. Township, 109 U.S. 162; Railroad v. Sargent, 72 N.H. 455; Baldwin v. Hanecy, 204 Ill. 287. (5) A former judgment need not be pleaded to make it an estoppel; when offered in evidence its force and conclusiveness are the same as when pleaded. McNair v. O'Fallon, 8 Mo. 205; Strong v. Insurance Co., 62 Mo. 289; Garton v. Botts, 73 Mo. 274; Insurance Co. v. Smith, 117 Mo. 297. (6) And, under a general denial, a former judgment is admissible, and is conclusive of the rights of the parties. Garton v. Botts, 73 Mo. 274; George v. Gillespie, 1 Greene (Ia.), 421.
Action for contribution. Amount involved "the sum of $ 6112.29 1/2 with interest from May 27, 1902." This suit was instituted in the circuit court of the city of St. Louis May 17, 1907, and upon trial in December, 1908, judgment was entered for defendant, from which plaintiffs have appealed.
For brevity of statement matters of pleading and evidence had best be commingled. From it all we gather these facts:
July 14, 1889, Patrick Yore departed this life in the city of St. Louis, leaving surviving him five children, viz.: James H. Yore, Margaret Yore McCord, August P. Yore, Charles J. Yore and Sarah O. Walton. A son, William Yore, died prior to the father, leaving as his heirs three children. Charles J. Yore, one of the living children of Patrick Yore at the time of his death, departed this life in January, 1902, intestate, unmarried and without children. The plaintiffs in this suit are the said James H. Yore and Margaret Yore McCord, and their respective children. The defendant is the son August P. Yore, mentioned supra as one of the five children of Patrick Yore. It also appears that Patrick left a widow, but her interest in his estate seems to have been fixed by an ante-nuptial contract, which is not questioned in the case at bar.
Patrick Yore was the owner of two valuable tracts of real estate in the city of St. Louis at the time of his death, which, however, do not appear to have been revenue producers. By his will the said Patrick made several minor bequests to be paid out of the personal estate or the rents of the real property. The children of the deceased son, William, were debarred from participating in the estate because, as averred in the will, said William had been liberally provided for in his lifetime. The daughter, Sarah O. Walton, was to receive sixty dollars per month as long as she lived. The will then further provided:
At the institution of this suit the widow, Sophia A. Papin Yore, was dead, and her certain life interest in a part of the real estate created by the ante-nuptial agreement was at an end. The estate had been finally settled in the probate court. The circuit court of the city of St. Louis had appointed the St. Louis Union Trust Company of that city as trustee under the will aforesaid. In the preservation of the estate and by way of advancements it had advanced a considerable sum of money. Tiring of the trust and desiring settlement, the parties sought another trustee. The Mississippi Valley Trust Company was importuned. In April, 1895, the above named life tenants, and such of their children as were of age, executed to the Mississippi Valley Trust Company, a trust deed covering the property of the trust estate, in which provision is made for the payment of the sum due to the Union Trust Company, and also for certain other advancements to the life tenants. Among other things this trust deed recited: "As between said first parties to and with said second party joint and several obligation, and due to said second party from each and every one of said first parties single and alone, as well as from the whole of them collectively."
In August, 1896, Clement Yore, a child of the said James H. Yore, became of age, and a second trust deed, signed by those signing the first and the said Clement was made. This referred to and incorporated therein the matters and things mentioned in the first trust deed, and in addition secured further advances.
In June, 1900, a third trust deed was made, being signed by the life...
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