Opinion
No. 27756.
February 21, 1950.
APPEAL FROM THE KNOX COUNTY CIRCUIT COURT, TOM B. BROWN, J.
Hilbert Veatch, Monticello, for appellant.
N.W. Simpson, Canton, William O. Russell, Canton, J. Andy Zenge, Jr., Canton, for respondent.
This is an appeal by E. O. Geisendorfer, executor of the last will and testament of Edward Geisendorfer, deceased, from a judgment rendered against him by the Circuit Court of Knox County on a claim for money paid out and expended by respondent on behalf of said Edward Geisendorfer during his lifetime. The claim was originally filed in the Probate Court of Lewis County and, after an appeal by said executor to the Circuit Court of Lewis County from an adverse judgment, the cause was transferred on change of venue to the Knox County Circuit Court.
The deceased, Edward Geisendorfer, was a farmer during his lifetime, living on a 130 acre farm in Lewis County. He also owned a farm in Carroll County, near Carrollton, Missouri, consisting of 434 acres, which he inherited from his brother, William Geisendorfer. The 434 acre farm was heavily mortgaged.
Respondent, Kenneth Geisendorfer, was a son of Edward Geisendorfer and, in April, 1942, moved to the Carroll County farm and operated it from that time until his father's death, on October 31, 1947. During that time respondent expended the money for which this claim was made. The total amount of the claim was for $4944.73, and consisted mainly of money expended for such items as seed, materials for repair of the premises, taxes, insurance, and interest on the farm's indebtedness. There was testimony that respondent had never been reimbursed for these expenditures.
Respondent's wife was called as a witness and testified concerning the agreement made between respondent and his father with respect to the operation of the Carroll County farm. She stated that deceased "told both of us, speaking to my husband, that if Kenneth would take over the land, and pay off the debt, that what was left over at Mr. Geisendorfer's death would come to Kenneth. * * * We moved to Carroll County after conversation between my husband and his father. * * He (Kenneth) borrowed money on his own account. * * * Mr. Geisendorfer was agreeable with what he did."
Mr. C. R. Haywood, Assistant Secretary and Treasurer of the Production Credit Association of Carrollton, Missouri, in 1941, testified that respondent and his father came into his office in Carrollton in 1941 or 1942 "to borrow money to carry on the farming operations that Kenneth was starting on the farm that belonged to Mr. Edward Geisendorfer. * * * In the course of his conversation with me, Mr. Edward Geisendorfer stated that he had acquired the farm in Carroll County by heiring it from his brother, William Geisendorfer's estate, and that it was involved with indebtedness to a point where in his opinion his own condition was such that he had arranged with Kenneth that if Kenneth could take that farm and operate it and retire the indebtedness on it and give Mr. Edward Geisendorfer enough income to help him retire some of his own indebtedness in Lewis County, that Kenneth was to come into ownership of the farm in Carroll County." Mr. Haywood further testified that no loan was made at the time of this visit, but later a loan was made to respondent and a line of credit was established. The witness further stated that the loan covered expenses incidental to the conduct of the farm business.
Alberta Geisendorfer, respondent's sister, testified: "I have asked my father — I asked him at the time after Kenneth went down there why he asked Kenneth to leave his job in Burlington, Iowa, and go down there, and he stated that Kenneth was the only one that could go down there and save this place; that it would be on the block — it would be sold, or the bank would take it over; that Carl was in the Army; Grace and I were teaching school; Otho had his farm in Monticello; and Kenneth was the only one who could go down there and pull this thing out of debt. * * * The last time I visited my father at home in August, before he died in October, we were talking over personal matters, about our family affairs and so on and so forth, and I asked him what he intended to do with Kenneth; that he had been promised a commission off the land he had sold and he did not get that commission, and he said to me, `You don't need to worry about that. Kenneth will be taken care of.'"
It further appears that in 1943 there was $10,000 borrowed on the Carroll County farm. This loan was obtained from William Jewell College. The note and deed of trust securing same were signed by Edward Geisendorfer, Kenneth Geisendorfer, and the latter's wife — Virginia A. Geisendorfer. The proceeds of this loan were used to pay off a previous indebtedness on the farm. The note was canceled and the deed of trust released by the Recorder of Deeds of Carroll County on October 2, 1945.
It also appears from the testimony of respondent's wife that respondent borrowed money at one time to pay off a mortgage held by the Bank of Norborne. She also stated that during the time she and respondent lived on the farm her husband paid most of the taxes, and that on one occasion he borrowed the money from his sister Alberta to pay taxes.
Mrs. Kenneth Geisendorfer identified the canceled checks given by her husband for the items which formed the basis of respondent's claim, and testified that said items had been used in connection with the Carroll County farm, and that her husband had never been reimbursed for them.
At the conclusion of plaintiff's case defendant moved for a directed verdict in his favor, on the ground that, under the pleadings and evidence, plaintiff was not entitled to recover. Error in the refusal of this motion is presented here under an assignment that the verdict is against the law, under the evidence; and, in support of this assignment, it is urged that plaintiff failed to carry his burden in establishing an express or implied contract.
We believe the point made by appellant is without merit. The jury could find from respondent's evidence that it was agreed between Edward Geisendorfer and his son Kenneth that if the latter would move onto the Carroll County farm and operate it, the farm would become his by a devise at the father's death. From this agreement the jury could reasonably infer an expectation on the part of the father to pay for the son's services and the necessary expenditures incurred by respondent in carrying out the terms of the agreement. Likewise, an expectation on the part of respondent to be compensated for said services and to be reimbursed for outlays could be found by the jury. Respondent's evidence shows that he fulfilled the terms of the agreement, but that Edward Geisendorfer failed to make the devise as promised. In such a situation, respondent had a choice of remedies. He could, (1) sue in equity for specific performance of the contract; (2) sue the executor of his father's estate upon the contract for its breach; or (3) sue the executor for the reasonable value of his services and the outlays expended by him in performance on his part. Blackwell v. De Arment's Estate, Mo.App., 300 S.W. 1035. Respondent did not sue for the reasonable value of his services, but did file claim for the amount expended by him in carrying out the terms of his contract. The suit was one in the nature of an action on a common count for money paid, laid out, and expended. We believe the action was proper and that a case was made for the jury.
We further believe that the court did not err in refusing defendant's motion for a directed verdict at the close of the whole case. We have not in this opinion detailed defendant's evidence touching on the issue presented, for the reason that in passing on the matter presented we must consider only that evidence most favorable to plaintiff's case, and ignore any contradictory evidence offered by defendant.
The only point urged by appellant in support of his contention that the motion for directed verdict should have been sustained is that respondent failed to produce substantial evidence of the existence of a contract between Kenneth Geisendorfer and his father. In our opinion, the evidence of plaintiff, which we have heretofore set out, was substantial evidence and sufficient to take the issue to the jury. The evidence of defendant from which a contrary inference might be drawn did not destroy that prima facie case.
Appellant assigns as error the action of the trial court in permitting plaintiff to testify to matters which occurred prior to the probate of the decedent's will. In this connection, appellant invokes that portion of Section 1887, R.S.Mo. 1939, Mo.R.S.A. Sec. 1887, which provides that: "where an executor or administrator is a party, the other party shall not be admitted to testify in his own favor, unless the contract in issue was originally made with a person who is living and competent to testify, except as to such acts and contracts as have been done or made since the probate of the will or the appointment of the administrator".
The record shows that Edward Geisendorfer died in Lewis County on October 31, 1947, and that his last will and testament was thereafter filed for probate in said county. The date the will was admitted to probate does not appear.
At the trial plaintiff took the stand to testify in his own behalf, at which time defendant's counsel objected to plaintiff testifying on the ground that plaintiff was disqualified as a witness except as to acts or contracts done or made since the probate of the will. The court ruled as follows: "Your general objection at this time is overruled, as I say, because he is not disqualified for all purposes, but you will be permitted to make your objections to the questions that he is asked from time to time." Plaintiff then testified (over the repeated objection of defendant's counsel), that his name was Kenneth Geisendorfer; that he lived on Route 3 at Carrollton, Missouri, and was a son of Edward Geisendorfer. He further testified:
"Q. Where were you living in 1941, in September? A. In September, 1941, I was living at Fort Madison, Iowa.
* * * * * *
"Q. To your knowledge did your father own any land in September, 1941? A. Yes, sir.
* * * * * *
"Q. Did you move from Iowa in 1942, or any other time? A. Yes, sir, I moved from Iowa to Carrollton.
"Q. When was it that you moved? A. I moved my wife and family on April 16, 1942, to Carrollton, Missouri.
* * * * * *
"Q. * * * The first time you made the trip to Carrollton, Missouri, did you go by yourself or with someone? A. I went with someone.
"Q. Would you recognize your father's handwriting? A. I think I would.
"Q. I hand you what has been marked Plaintiff's Exhibit 1, and will ask you if you know what it is? * * * A. Yes, sir, I recognize it.
"Q. Do you know where that piece of paper came from? A. Yes, sir."
Plaintiff was handed plaintiff's Exhibit 88 and asked if he knew what it was. He stated that he did and that he had obtained it from Mr. Stevenson, the County Clerk of Carroll County.
The foregoing was all the testimony given by plaintiff. Plaintiff's Exhibit 88 was then offered and received in evidence. The exhibit was a certified copy of a deed of trust on the real estate of Edward Geisendorfer in Carroll County, given to secure a loan for $10,000 from William Jewel College of Liberty, Missouri. The note and deed of trust were signed by Edward Geisendorfer, Irving K. Geisendorfer, and Virginia Geisendorfer. It shows on its face that the note for $10,000 was canceled by the recorder of deeds on October 2, 1945, and that said deed of trust was released of record.
In construing Section 1887, supra, our Supreme Court has held that where an executor or administrator is a party to the suit, the living party to the contract or cause of action on trial is forbidden to testify to any matter that occurred prior to the probate of the will, or the appointment of an administrator, regardless of whether or not the other party, if living, could testify to the same matter. Kersey v. O'Day, 173 Mo. 560, 73 S.W. 481; Weiermueller v. Scullin, 203 Mo. 466, 101 S.W. 1088. The plaintiff in this case, therefore, should not have been permitted to testify to anything that occurred prior to the appointment of defendant as executor. However, this does not mean that the judgment herein should be reversed for that reason.
It appears from an examination of the record that plaintiff did not testify to anything that materially affected the merits of the case. It was undisputed that plaintiff's name was Kenneth Geisendorfer, and that he was the son of Edward Geisendorfer. There was no issue as to plaintiff's residence in September, 1941, or that he moved from Iowa to Carrollton in April, 1942. Plaintiff's Exhibit I, which he identified, was not offered in evidence, and there was no testimony as to what it was. Plaintiff's Exhibit 88 was a certified copy of a deed of trust on file in the office of the Recorder of Deeds of Carroll County. There was no contested issue concerning it.
Section 140(b) of the Civil Code of Missouri, Laws 1943, p. 395, Mo.R.S.A. Sec. 847.140(b), provides that: "No appellate court shall reverse any judgment unless it believes that error was committed by the trial court against the appellant, and materially affecting the merits of the action."
In view of the character of the evidence, and the provisions of Section 140(b), supra, we would not be warranted in reversing the judgment on account of the admission of the evidence complained of by appellant.
Appellant further complains of the giving of plaintiff's Instructions P-1 and P-2, on the ground that said instructions did not limit recovery to the items listed in plaintiff's claim. Said instructions authorized a recovery for money expended by plaintiff in paying his father's indebtedness, and money spent on the farm and in the operation thereof. They did not expressly limit recovery to the items listed in the formal claim. The formal claim was the plaintiff's pleading, and the record does not show that it was read or exhibited to the jury. In fact, it would have been improper to have done so. There was no evidence of any expenditures not listed in the claim. The jury must have understood that it was their duty to follow the evidence in assessing the amount of recovery. There is no indication in the record that they did allow items not covered by the instructions. We find no error in the instructions.
Appellant assigns as error the admission of certain testimony given by respondent's wife on the theory that it was not testimony of her own knowledge, but information from certain papers shown to her to refresh her recollection, which, in fact, did not have that effect. This assignment was not carried forward and developed in appellant's brief, hence must be deemed abandoned. Porter v. Fickenwirth, Mo.App., 217 S.W.2d 738; Wertz v. Chicago, B. Q. R. Co., 225 Mo.App. 1056, 40 S.W.2d 515; Denkman v. Prudential Fixture Co., Mo.Sup., 289 S.W. 591; Moffett Bros. Andrews Commission Co. v. Kent, Mo.Sup., 5 S.W.2d 395; Hanser v. Lerner et al., Mo.App., 153 S.W.2d 806; Rafferty v. Levy et al., Mo.App., 153 S.W.2d 765.
We find no error in the record. The judgment is accordingly affirmed.
HUGHES and McCULLEN, JJ., concur.