Opinion
No. 40056.
March 8, 1948. Rehearing Denied, April 12, 1948.
1. TRIAL: New Trial: Sufficiency of Evidence. In determining upon motion to dismiss whether there was a submissible case plaintiff's evidence must be considered true, and plaintiff must be given the benefit of every reasonable inference. And the same rule applies on appeal when a motion for a new trial is sustained on the ground that the verdict is against the weight of the evidence.
2. CONTRACTS: Presumption of Gratuitous Service by Relative: Burden of Claimant. There is a presumption that services by a relative were rendered gratuitously, and the claimant must prove either by direct testimony or by evidence from which it may be reasonably inferred that there was an agreement or mutual understanding that the claimant was to be remunerated for the services rendered.
3. CONTRACTS: Election of Remedies: Oral Agreement to Devise Property: Quantum Meruit For Value of Services. There was sufficient evidence for a submissible case that plaintiff performed services for 31 years in consideration of an agreement to devise property to her. Plaintiff was not required to pursue a remedy in equity for specific performance but may recover at law for the reasonable value of the services rendered.
4. RELEASE: General Language in Release Not Conclusive. General language in a release which would have barred plaintiff's claim for services is not conclusive where it appears that the release was intended to cover certain deposits held by the deceased on behalf of plaintiff.
5. ACCORD AND SATISFACTION: Release: Recitals on Checks Not Conclusive. Recitals on checks in favor of plaintiff that they were in full payment for services rendered are not conclusive against plaintiff's claim for services, where it appears that the notations were not in the handwriting of plaintiff and might have been inserted by the deceased without her knowledge after the checks had been paid.
Appeal from Jackson Circuit Court. — Hon. Paul A. Buzard, Judge.
AFFIRMED.
Maurice J. O'Sullivan, John J. Killiger, Jr., James P. Alyward, George V. Aylward, Terrence M. O'Brien and William B. Teasdale for appellant.
(1) The discretionary power to grant a new trial which is generally not subject to appellate review extends only to questions of fact and to matters affecting issues of fact. Schipper v. Brashear Truck Co., 132 S.W.2d 993, 125 A.L.R. 675; Castorina v. Herrmann, 340 Mo. 1026, 104 S.W.2d 297. (2) Such discretionary power may not be exercised arbitrarily nor unjustly, but only with wise judicial discretion and not without foundation in fact. Schipper case, ante; Van Loon v. St. Joseph Ry., 271 Mo. 209, 195 S.W. 737. (3) The exercise of such discretionary power is reviewable on appeal when based upon erroneous views of the law and not upon sound judicial discretion. Schipper case, ante; Hall v. Martindale, 166 S.W.2d 594; Davis v. Hill Bros. Veneer Co., 20 S.W.2d 928. (4) Review and reversal of an order granting a new trial because the verdict is against the weight of the evidence is proper when a submissible case was not made by the movant for a new trial. Lindsey v. Vance, 337 Mo. 1111, 88 S.W.2d 150; O'Dell v. American Natl. Ins. Co., 107 S.W. 108; Toedtman v. Grass, 116 S.W.2d 153. (5) Such review and reversal is proper when a finding for movant, if made, could not be upheld. Sec. 126, Civil Code; Laws, 1943, p. 390; Castorina v. Herrmann, 340 Mo. 1026, 104 S.W.2d 297; Ward v. Prudential Ins. Co., 105 S.W.2d 983. (6) Such review and reversal is proper where there is no substantial evidence in the record to support a verdict in favor of respondent and uncontroverted, competent and substantial evidence affirmatively establishes as a matter of law that respondent is not entitled to the relief claimed or to any relief. United Construction Co. v. St. Louis, 334 Mo. 1006, 69 S.W.2d 639; Borack v. Mosler Safe Co., 288 Mo. 83, 231 S.W. 623; Lyons v. Corder, 253 Mo. 539, 162 S.W. 606; Ottomeyer v. Pritchett, 178 Mo. 160, 77 S.W. 62; Roberts v. M. K. Tel. Co., 166 Mo. 370, 66 S.W. 155; Payne v. Reed, 332 Mo. 343, 59 S.W.2d 43. (7) Such review and reversal is proper where no competent record evidence is shown to weigh in support of the claim relied upon to authorize a recovery by movant. Castorina case, ante. (8) Evidence of another contract from the alleged express contract relied upon and submitted as a basis for recovery will not establish a submissible case for movant. Deisel-Wemmer-Gilbert Co. v. David Chalmers Tobacco Co., 231 Mo. App. 631, 104 S.W.2d 1029. (9) There was a family relationship between deceased and respondent, and respondent failed to prove that there was an express agreement legally obligating deceased to pay her for her services. Bircher v. Boemler, 204 Mo. 554, 103 S.W. 40; Wood v. Lewis, 183 Mo. App. 553, 167 S.W. 666; Nelson v. Poorman's Estate, 215 S.W. 753; Smith v. Davis, Estate, 206 Mo. App. 446, 230 S.W. 670; Clow v. Wormington, 206 S.W. 415; Guenther v. Birkicht's Administrator, 22 Mo. 439. (10) There being a family relationship, respondent was required to prove an express contract. Bircher v. Boemler, 204 Mo. 554, 103 S.W. 40; Witte v. Smith, 237 Mo. App. 639, 152 S.W.2d 661; Brand v. Ray, 156 Mo. App. 622, 137 S.W. 623; Smith v. Davis' Estate, 206 Mo. App. 446, 230 S.W. 670; Taylor v. George, 176 Mo. App. 215, 161 S.W. 1187; Kostuba v. Miller, 137 Mo. 161, 38 S.W. 946; Woods v. Land, 30 Mo. App. 176; Goff v. Scoggin, 293 S.W. 480. (11) Proof of such an express contract had to be clear and convincing. Smith v. Davis' Estate, 206 Mo. App. 446, 230 S.W. 670; Opel v. Aurien, 352 Mo. 592, 179 S.W.2d 1; Walker v. Bohannan, 243 Mo. 119, 147 S.W. 1024; Shaw v. Hamilton, 346 Mo. 366, 141 S.W.2d 817; Keller v. Lewis County, 345 Mo. 536, 134 S.W.2d 48; Rosenwald v. Middlebrook, 188 Mo. 58, 86 S.W. 200; Asbury v. Hicklin, 181 Mo. 658, 81 S.W. 390. (12) Respondent failed to prove an express contract legally obligating deceased to pay her for her services. Respondent also failed to prove that deceased intended to pay her for her services or that she expected payment for them. Bircher v. Boemler, 204 Mo. 554, 103 S.W. 40; Brand v. Ray, 156 Mo. App. 622, 137 S.W. 623; Steele v. Steele, 161 Mo. 566, 61 S.W. 815; Clow v. Wormington, 206 S.W. 415; Witte v. Smith, 237 Mo. App. 639, 152 S.W.2d 661; Woods v. Land, 30 Mo. App. 176; Smith v. Davis, Estate, 206 Mo. App. 446, 230 S.W. 670; Taylor v. George, 176 Mo. App. 215, 161 S.W. 1187; Crowley v. Dagley, 174 Mo. App. 561, 161 S.W. 366; Wood v. Lewis, 183 Mo. App. 553, 167 S.W. 666; Asbury v. Hicklin, 181 Mo. 658, 81 S.W. 390. (13) The general contractual release of June 2, 1943, precluded recovery on respondent's claim. Settlement contracts, especially family settlements, are favorites of the law. Mateer v. Mo. Pac. Railway, 105 Mo. 320, 16 S.W. 839; Sheppard v. Travelers' Protective Ins. Co., 233 Mo. App. 602, 124 S.W.2d 528; Brown v. Corn Products Co., 227 Mo. App. 548, 55 S.W.2d 706; Pfiffner v. Kroger, 140 S.W.2d 79; Kehoe v. Commissioner of Internal Revenue, 105 F.2d 552; Tulsa City Lines v. Mains, 107 F.2d 377; Chase Natl. Bank v. Wabash Railway, 40 F. Supp. 859; Adamack v. Herman, 33 S.W.2d 135. (14) Respondent's release covers this claim. Benoist v. Murrin, 47 Mo. 537; Crenshaw v. Crenshaw, 276 Mo. 471, 208 S.W. 249; Robinson and Wentz v. McFaul, 19 Mo. 549; Bethany Savings Bank v. Cushman, 66 Mo. App. 102; Hickox v. Hickox, 151 S.W.2d 913; Golden v. Golden, 155 Okla. 10, 8 P.2d 42; Strasser v. Mack, 184 S.W.2d 337; Continental Corp. v. Gowdy, 283 Mass. 204, 186 N.E. 244, 87 A.L.R. 1039; Castell v. United States, 98 F.2d 88; Hume v. American-West African Line, 36 F. Supp. 880; Nahtel Corp. v. West Virginia Pulp Paper Co., 141 F.2d 1; Altman v. Curtiss-Wright Corp., 124 F.2d 177. (15) There was consideration for the release. Wood v. Telephone Co., 223 Mo. 537, 123 S.W. 6; Sheppard v. Travelers' Protective Ins. Co., 233 Mo. App. 602, 124 S.W.2d 528; Wright v. Hetherlin, 277 Mo. 99, 209 S.W. 871; Todd v. Security Ins. Co., 203 Mo. App. 474, 221 S.W. 808; Parsons v. Harvey, 195 S.W. 530; Nelson v. Troll, 173 Mo. App. 51, 156 S.W. 16; Pollman Coal Co. v. St. Louis, 145 Mo. 651, 47 S.W. 563; State ex rel. Order of United Commercial Travelers v. Shain, 339 Mo. 903, 98 S.W.2d 597; Wood v. Telephone Co., 223 Mo. 537, 123 S.W. 6; Sheppard v. Travelers' Ins. Co., 233 Mo. App. 602, 124 S.W.2d 528; Creason v. Harding, 344 Mo. 452, 126 S.W.2d 1179; Zinke v. Maccabees, 275 Mo. 660, 205 S.W. 1; Painter v. Prudential Ins. Co., 228 Mo. App. 576, 71 S.W.2d 483. (16) The release is binding. Brennecke v. Ganahl Lumber Co., 329 Mo. 341, 44 S.W.2d 627; Dyrssen v. Union Electric L. P. Co., 317 Mo. 221, 295 S.W. 116; Crenshaw v. Crenshaw, 276 Mo. 471, 208 S.W. 249; Employers' Indemnity Corp. v. Garrett, 327 Mo. 874, 38 S.W.2d 1049; Burk v. Walton, 337 Mo. 781, 86 S.W.2d 92; Gates Hotel Co. v. Federal Inv. Co., 331 Mo. 107, 52 S.W.2d 1016; Ezo v. St. Louis Smelting Refining Co., 87 S.W.2d 1051; Caneer v. Kent, 342 Mo. 878, 119 S.W.2d 214; McCormick v. Transit Railway Co., 154 Mo. 191, 55 S.W. 252. (17) Recovery on respondent's claim was also precluded by respondent's acceptance of checks marked paid in full for labor and services to date. Dean v. Bigelow, 292 S.W. 25; Booth v. Dougan, 217 S.W. 326; Phillips Petroleum Co. v. Rau, 130 F.2d 499; McCormick v. St. Louis, 166 Mo. 315, 65 S.W. 1038; Bartley v. Pictorial Review Co., 188 Mo. App. 639, 176 S.W. 489; Ellis v. Mansfield, 215 Mo. App. 292, 256 S.W. 165; McGregor v. Ware Construction Co., 188 Mo. 611, 87 S.W. 981; Harlin and Griffin v. Missouri State Highway Comm., 51 S.W.2d 553; Pollman Coal Co. v. St. Louis, 145 Mo. 651, 47 S.W. 563; Andrews v. Stubbs Contracting Co., 100 Mo. App. 599, 75 S.W. 178; St. Joseph School Board v. Hull, 72 Mo. App. 403; Adams v. Helm, 55 Mo. 468; Halloway v. Creamery Co., 286 Mo. 489, 228 S.W. 451. (18) The release contract of June 2, 1943, barred respondent's claim in plain and unambiguous terms, hence, unless reformed, said contract had to be enforced according to its terms; said contract could only be reformed by a court of equitable jurisdiction and neither the probate court nor the court below had such equitable jurisdiction. Said unambiguous contract could not be varied or contradicted by parol evidence, and its interpretation, meaning or intent could not be submitted to the jury. Mueller v. Shell Pipe Line Corp., 38 S.W.2d 297; Gunter v. Standard Oil Co., 60 F.2d 389; Harrison Engineering Construction Corp. v. United States, 68 F. Supp. 350; Ezo v. St. Louis Smelting Ref. Co., 87 S.W.2d 1051; Toucey v. New York Life Ins. Co., 102 F.2d 16, 122 A.L.R. 1415, certiorari denied 307 U.S. 638, 59 S.Ct. 1037, 83 L.Ed. 1519; Rawlings v. Rawlings, 332 Mo. 503, 59 S.W.2d 735; In re Ermeling's Estate, 119 S.W.2d 755; In re Ermeling's Estate, 131 S.W.2d 912; Teich v. Globe Ind. Co., 25 S.W.2d 554.
C.W. Prince, Wm. Dennis Bush and F. Richard Weber for respondent.
(1) There was a family relationship between deacesed and respondent, and a fiduciary relationship, but there was also an express agreement legally obligating deceased to pay respondent for her services. Hukreda's Estate, 172 S.W.2d 824; Hall v. Getman, 97 S.W. 607, 121 Mo. App. 630; Lillard v. Wilson, 77 S.W. 74, 178 Mo. 145; Patrick v. Crank, 110 S.W.2d 381; Chandler v. Hulen, 71 S.W.2d 752, 335 Mo. 167; Miller v. Richardson, 56 S.W.2d 614; Blackwell v. De Arment's Estate, 30 S.W. 1035; Castorina v. Herrmann, 104 S.W.2d 297, 340 Mo. 1026. (2) The release did not release an unmatured or contingent claim not specified therein because there was no consideration to release the contingent claim. Farnham v. Farnham, 198 N.Y.S. 771; Harms v. Gas Co., 157 S.W. 1046, 172 Mo. App. 241. (3) There was no "meeting of the minds" on the release of the contingent claim. Sappington v. Cent. Mut. Ins. Co., 229 Mo. App. 222, 77 S.W.2d 140; Arnold v. Brotherhood, 231 Mo. App. 508, 101 S.W.2d 729; 53 C.J., p. 129, sec. 86. (4) There was no express reference to the contingent claim. Farnham v. Farnham, 198 N.Y.S. 771; Grumley v. Webb, 44 Mo. 444; Yeager v. St. Joe Lead Co., 12 S.W.2d 520; Mitchell v. Mitchell, 156 N.Y.S. 76. (5) The release is expressly limited to claims arising "prior" to its date. 53 C.J., p. 129, sec. 86; Grumley v. Webb, 44 Mo. 444; Yeager v. St. Joe Lead Co., 12 S.W.2d 520. (6) Deceased occupied a fiduciary relationship toward respondent and owed her the duty to make a full disclosure of the facts. Patton v. Shelton, 40 S.W.2d 706, 328 Mo. 631; Hockenberry v. Cooper County Bank, 88 S.W.2d 1031, 338 Mo. 31; Burrus v. Continental Life Ins. Co., 40 S.W.2d 493, 225 Mo. App. 1129; Klika v. Albert Wenzlick Real Est. Co., 150 S.W.2d 18; Selle v. Wrigley, 116 S.W.2d 217, 233 Mo. App. 43. (7) The release did not mention plaintiff's contingent claim and there is no evidence in the record that the intention to release such claim was revealed to respondent or discussed with her notwithstanding the fiduciary relationship. Such fact being conceded the release was no defense as a matter of law. Hockenberry v. Cooper County Bank, 88 S.W.2d 1031, 338 Mo. 31; Roach Paving Co. v. Southwestern Surety Co., 238 S.W. 119; Wendorff v. Mo. State Life Ins. Co., 1 S.W.2d 99, 318 Mo. 363; Landau v. Fred Schmitt Cont. Co., 179 S.W.2d 138. (8) Probate court is without authority to determine adverse claims to property or trace trust funds and its ex parte orders thereon are not res adjudicata. Garver's Est. v. Richardson, 77 Mo. App. 459; Howard's Est. v. Howe, 131 S.W.2d 517, 344 Mo. 12; State ex rel. v. Waltner, 145 S.W.2d 152, 346 Mo. 1138; Wagner v. Wagner, 229 S.W. 1064, 287 Mo. 567. (9) Recovery on respondent's claim was not precluded by checks marked paid in full for labor and services to date. The notations thereon were forgeries. A suspicious and an unexplained alteration nullifies the instrument. Kircher v. Dunningham, 29 S.W.2d 138, 325 Mo. 355; Klebba v. Otto, 187 S.W.2d 499; 2 C.J. 1290, 1291. (10) The fabrication of evidence by a party creates the presumption that the opposite party's claim is just. 2 Wigmore (3 Ed.), p. 120, sec. 278; State v. Mathews, 100 S.W. 420, 202 Mo. 143; Fulkerson v. Murdock, 53 Mo. App. 151; Kamoss v. Ry., 202 S.W. 434; Lacey v. Hill, L.R. 4 Ch. D 537; Craig v. Earl Anglesea, 17 How. St. Tr. (Ire.) 1217. (11) A document in one's possession signed by another is inviolable in the eyes of the law, and its alteration will not be tolerated by the courts. Carson v. Woods, 177 S.W. 623; Sec. 4579, R.S. 1939; 37 C.J.S. 40, sec. 12.
Respondent, Margaret Kopp, filed her demand of $28,000 in the Probate Court of Jackson County against the estate of John J. O'Connell, who was respondent's uncle by marriage and who died testate July 24, 1945. The claim or demand was for the reasonable value of services to O'Connell and to his wife (respondent's aunt) during their lives, pursuant to an alleged oral promise by O'Connell and wife that, in consideration of claimant's services, "they would leave her all of their combined estate." The probate court found for claimant-respondent. Upon appeal to and trial de novo in the Circuit Court of Jackson County, however, a jury returned a verdict for the estate, but the trial (circuit) court granted a new trial on the ground the verdict was against the weight of the evidence. The executor has appealed.
Executor-appellant contends the trial court erred (1) in overruling appellant's motion for a directed verdict at the close of claimant-respondent's evidence because, he urges, there was not sufficient substantial evidence introduced to support respondent's claim; (2) in overruling appellant's motion for a directed verdict at the close of all of the evidence, because, it is said, undisputed and documentary evidence established a release and satisfaction of the claim in full, and (3) in granting the new trial, on the ground the verdict was against the weight of the evidence because, there being no sufficient substantial evidence to support the claim, a verdict for respondent could not be upheld.
In testing the sufficiency of the evidence to make out a case submissible to a jury upon motion for a directed verdict, (as formerly upon a demurrer to the evidence or a request for a peremptory instruction, now abolished by the Civil Code of Missouri) the plaintiff's evidence must be considered true, and the plaintiff given the benefit of every inference of fact which can be reasonably drawn therefrom. Lowry v. Mohn, Mo. Sup., 195 S.W.2d 652; see also Chandler v. Hulen, 335 Mo. 167, 71 S.W.2d 752. The evidence being so considered the question is — was there sufficient substantial evidence introduced supporting plaintiff's claim? Likewise, when a motion for a new trial is sustained on the ground the verdict is against the weight of the evidence, the appellate court will determine whether or not there was sufficient substantial evidence to sustain a verdict for the party to whom the new trial was granted. Castorina v. Herrmann, 340 Mo. 1026, 104 S.W.2d 297, and cases therein cited.
[51] In the instant case appellant contends and respondent concedes a family relation existed between the O'Connells and respondent. Where a family relation exists between a person rendering services (such as are in question in the instant case) and the recipient thereof, the rule followed in this state is that no promise or agreement that the services are to be paid for is implied from the mere fact that the services have been rendered and accepted. Prima facie, the presumption is that such services are rendered gratuitously, casting upon the party claiming compensation therefor the burden of rebutting the presumption. In overcoming the presumption, the claimant must prove either by direct testimony or by evidence from which it may be reasonably inferred that there was an agreement or mutual understanding the claimant was to be remunerated for the services rendered. Chandler v. Hulen, supra; Liebaart v. Hoehle's Estate, Mo. App., 111 S.W.2d 925; Baker v. Lyell, 210 Mo. App. 230, 242 666 S.W. 703, and cases therein cited. While mere expressions of gratitude or intended generosity on the part of the recipient are not alone sufficient (Woods v. Land, 30 Mo. App. 176), the promise to pay may be implied from any facts or circumstances which in their nature justify the inference of an actual contract of hire or an actual understanding between the parties to that effect. Chandler v. Hulen, supra; Brown v. Holman, 292 Mo. 641, 238 S.W. 1065; Cowell v. Roberts' Executor, 79 Mo. 218, and cases therein cited.
John J. O'Connell married respondent's aunt, Margaret Christopher, in 1909. Mrs. Kopp (Mrs. O'Connell's sister) had died in 1897, at which time respondent and her brother, Harry Kopp, were respectively thirteen months and two years old. In 1905, Mrs. O'Connell, then Margaret Christopher, had become guardian of the infants' estate consisting of real estate in Kansas yielding an annual income of about $175. The land had been devised to the children by their grandmother Christopher, who died in 1905. The children both resided in the O'Connell home from the time of the O'Connell marriage until Harry left in 1916. Respondent, however, continued to live with the O'Connells. She attended St. Aloysius School, Kansas City, and Manual Training High School for a year. It could be inferred she had contemplated further study in "Brown's Business College." The evidence shows there was great devotion between the O'Connells and Margaret. John J. O'Connell was the owner of and received income principally from the rental of real estate. It is undisputed that respondent rendered valuable services to the O'Connells, the nature of which was described by many witnesses. She "kept house" (the house was "immaculate"), cooked, washed, ironed, mowed the lawn, shoveled snow, cleaned the furnace, drove the family car, (Mr. O'Connell did not drive an automobile), accompanied and assisted Mr. O'Connell in collecting rent, prepared his income tax returns, supervised the repair of the rental properties, sometimes personally delivered lumber and roofing materials to workmen engaged in repairing the properties, and on some emergency occasions cleaned sewer drains of various rented apartments. Mr. O'Connell's hearing had become defective during several years preceding his death; and respondent's tasks became more and more onerous because of the declining health which attended the latter months of the lives of both Mr. and Mrs. O'Connell.
Respondent's brother, Harry, testified of a conversation with Mr. O'Connell in 1914, "I just told him that he was working Margaret too hard and he said that she wouldn't be sorry because at the end of the death she would get the estate, and he said, `She is only taking care of her own stuff.' . . . Sitting at the supper table (Margaret, Mr. O'Connell, Mrs. O'Connell and the witness were present) Mr. O'Connell said that he and Mrs. O'Connell had made an agreement that afternoon with Margaret if she wouldn't go to school and stay there and take care of them, at their death they would leave their property to her." A witness, Aurora Segura, formerly a tenant of Mr. O'Connell, testified, "We, you know, asked him why hadn't Margaret gotten married all these years and he used to tell us that he had promised her that if she would stay with him all these years until they both died that she would get [52] everything they had." Several witnesses testified Mr. and Mrs. O'Connell had expressed their gratitude and intended benefaction in language, for example, "I don't know what in the world I would do without Margaret", and "Margaret would be well taken care of." John J. O'Connell, by his will, and codicil thereto, bequeathed respondent $750, residue to testator's four sisters, "or to the survivor or survivors of them, in equal parts." Respondent renounced the bequest.
In our view, the facts and circumstances related supra are substantial and supportive of an agreement or mutual understanding that respondent was to be remunerated for services rendered; indeed, the declarations of Mr. O'Connell in the presence of respondent's brother were sufficiently substantial, if given credence, in proving an express oral agreement to that effect. It would seem reasonable to infer respondent would not have foregone her plans for further study and her contemplated business career and would not have stayed on through the subsequent 31 years performing the many, varied and onerous services detailed in evidence, unless she understood she would be compensated. It would seem reasonable to infer the O'Connells would not have expected respondent to stay on and would not have accepted the service rendered absent their intention that respondent should be rewarded. As stated, they frequently said in effect "Margaret will be well taken care of." The testimony of the witness, Aurora Segura, detailing Mr. O'Connell's declaration, that he had promised respondent "that she would get everything they had" if she would stay on through the years "until they both died", was certainly indicatory of an intention that she would be rewarded, and that he had so promised. If he had so promised it may be readily inferred that respondent continued in the rendition of service understanding she was to be remunerated. In our opinion the evidence we have related, considered as true, is sufficiently substantial in rebutting or overcoming the presumption that the services were rendered gratuitously. If there be shown an agreement or mutual understanding that respondent was to be remunerated and performance of the agreement on her part to be performed, she is not obliged to only pursue a remedy in equity specifically performing the alleged agreement that the O'Connell's should remunerate her by leaving "her all their combined estate"; but she could waive the agreement and, based upon proof of her performance of services and a demonstration of the agreement or mutual understanding rebutting the presumption the services were gratuitous, she may at law recover the reasonable value of the services rendered. Blackwell v. De Arment's Estate, Mo. App., 300 S.W. 1035; Boldwin v. Lay, Mo. App., 226 S.W. 602; Hall v. Getman, 121 Mo. App. 630, 97 S.W. 607 (in such a case, it is noticed the recovery should not exceed in amount the value of the property promised); Allen v. Allen, 101 Mo. 676, 74 S.W. 396. See also In re Hukreda's Estate, Mo. Sup., 172 S.W.2d 824. We cannot now follow the language in the opinions in the case of Bircher v. Boemler, 204 Mo. 554, 103 S.W. 40, and in the case of Witte v. Smith, 237 Mo. App. 639, 152 S.W.2d 661, which seems to limit a claimant's recovery in general assumpsit (in a case where a family relation exists) to a claim based upon an express promise or understanding to pay claimant during the lifetime of the recipient of the services performed.
As stated, appellant contends claimant-respondent's recovery is precluded because her claim has been released. June 2, 1943, respondent and her brother signed an instrument denominated "Release and Receipt," as follows:
"We, the undersigned, each assert separate claims against the estate of Margaret O'Connell, deceased, and John J. O'Connell, legal liability for which is denied by him. Said matters have been in controversy and it has been agreed that the sums hereinafter mentioned shall be paid, respectively, to the undersigned in full and final settlement, compromise and release of all claims and demands of every kind and character which we, or either of us, have, can or may have against the estate of said Margaret O'Connell, deceased, or said John J. O'Connell, by reason of any matter, cause or thing whatever arising prior to the date hereof.
[53] "In consideration of the premises and of the sum of $425.35 in hand paid by John J. O'Connell to Harry Kopp, the receipt of which is hereby acknowledged, and of the sum of $319.01 in hand paid by John J. O'Connell to Margaret Kopp, the receipt of which is hereby acknowledged, said parties, and each of them, hereby forever fully release, compromise, settle and discharge any and all claims, demands, actions or causes of action which they, or either of them, have against said John J. O'Connell or the estate of Margaret O'Connell, deceased, by reason of any matter, cause or thing whatever arising prior to the date hereof.
"This receipt and release is contractual in its nature and not a mere recital and the sums paid, respectively, are the sole and only consideration for the execution and delivery hereof.
"In Witness Whereof, the undersigned have executed this release and receipt and each has read and fully understands the same."
Checks of John J. O'Connell dated June 2, 1943 for $435.35 and $319.01 were received and cashed by Harry and respondent, respectively.
It was further shown in evidence that respondent received credits to her account with the First National Bank of amounts of several checks drawn on the account of Mr. O'Connell, each for $25, bearing various dates from April 11, 1944, to June 26, 1945. Ten of the checks bore notations to the effect "in full for all labor — services to date." The checks were in the handwriting of respondent (except the notations mentioned, which were written by another with unsteady hand). The notation now appearing on the check of April 11th, was not made until after the check had been honored and canceled by the drawee bank.
It is urged by appellant the general terms of the release, supra, discharged all claims, matured, future, or contingent, between the parties including, of course, the claim involved herein; that respondent was sui juris and executed the release voluntarily, confirming the release by accepting and cashing the $319.01 check having on its face the recitation "In full of claims against maker and estate of Margaret O'Connell"; and that respondent by accepting, endorsing and cashing the various checks, marked in full for labor and services, conclusively effected a satisfaction of, or an estoppel to deny payment for respondent's services.
We observe the language of the instrument, "Release and Receipt," is couched in general terms and is quite comprehensive in embracing all claims, demands or causes of action. It has been written, "While it is settled that where there are general words alone in a release, they shall be taken most strongly against the releasor, yet it is now a general rule in construing releases, especially where the same instrument is to be executed by various persons, standing in various relations and having various kinds of claims and demands against the releasee, that general words, although the most broad and comprehensive, are to be limited to particular demands, where it manifestly appears, by the consideration, by the recital, by the nature and circumstances of the several demands to one or more of which it is proposed to apply the release, that it was so intended to be limited by the parties." 45 Am. Jur., Release, sec. 29, pp. 693-694. See also Bigbee v. Coombs, 64 Mo. 529, and discussion in Grumley v. Webb, 44 Mo. 444, at page 455 et seq.
In view of the general rule so written, some additional evidence will be stated. As we have said Mrs. O'Connell had been guardian of respondent and her brother. The evidence shows that, after respondent and her brother had attained their majority and after Mrs. O'Connell's discharge as guardian, Mrs. O'Connell continued to be a voluntary "depository" of moneys which respondent and her brother from time to time instrusted to her. Mrs. O'Connell kept moneys, documents and memoranda thereof in a safe deposit box. At Mrs. O'Connell's death, an order of the probate court was entered dispensing with administration and authorizing Mr. O'Connell [54] to take over the assets of her estate. There were found in Mrs. O'Connell's safe deposit box Certificates of Deposit, U.S. Postal Savings System, in aggregate principal $1850. Memoranda written in the hand of Mrs. O'Connell indicated certificates in the principal sums of $400 and of $300 had been procured by the deposit of moneys, respectively, of Harry Kopp and respondent. Mr. O'Connell's counsel arranged for the payment of the certificates by the postal department, which payment was made June 2, 1943. At the time of payment, interest had accrued on the certificates, which Mrs. O'Connell's memoranda indicated were those of respondent. It was the testimony of Mr. O'Connell's attorney, that he originally prepared the instrument "Release and Receipt," supra, at the direction of Mr. O'Connell, reciting consideration to respondent, $300, to her brother, $400; subsequently and before the instrument was signed, the attorney at Mr. O'Connell's direction changed the respectively stated considerations to $319.01 and $425.35. When respondent signed the instrument at the office of Mr. O'Connell's attorney no mention was made by Mr. O'Connell or his attorney of the claim or claims intended to be released by the instrument; indeed, the attorney testified "he was not curious about what disputes or controversies may have arisen between" the parties; however, he had not "heard any claim of that kind (for services) discussed by them." Respondent's brother testified that he and his sister, respondent, "have a claim (other than for services) besides this one on trial against the estate."
In view of the several claims, and the two persons variantly claimant; the coincidence of dates of the payment to Mr. O'Connell of the moneys by the postal department, and of the release; the near equality of the considerations $319.01 and $425.35, recited in the release and paid to respondent and to her brother, with the amount of money due upon the postal saving certificates issued upon Mrs. O'Connell's deposit of their funds; and the testimony tending to negative the instant claim for services was even discussed by the parties, when the release was executed, it seems to us it should not be held, as a matter of law, that the parties intended the general terms of the release should apply to the claim involved in the case at bar. It would seem the parties may have had in mind the claims for the proceeds of the postal savings certificates. The circumstances stated make it, at least, doubtful the release was intended to discharge respondent's claim for services, and we believe the question was one for a jury.
Relating to the series of $25 checks — the checks bearing the recitations of full payment for services, quoted supra — respondent's brother testified Mr. O'Connell had stated he gave respondent "checks out there for grocery money." The witness further testified there were no "parking facilities" during banking hours near the drawee bank, and "Mr. O'Connell told me he would go in the bank and make the deposit while Margaret drove around the bank down there . . ." Respondent urges the inferences that Mr. O'Connell had an opportunity to make and did make the quoted notations without the knowledge of respondent after she had endorsed the checks. Certainly the recitations were not written by respondent to whom Mr. O'Connell had delegated the writing of the checks, and we have noticed the quoted recitation did not appear on the check of April 11th, when the check was presented, paid and canceled. Respondent would not be precluded from recovery upon a theory of satisfaction or estoppel by accepting, endorsing and cashing the checks if when so doing she did not know the checks were made and tendered in payment of services, as recited. The checks (accepted, endorsed and cashed by respondent) were but prima facie evidence of the payment as recited (Gregg v. Roaring Springs Land and Mining Co., 97 Mo. App. 44, 70 S.W. 920); and respondent's evidence tended to rebut the appellant's prima facie showing.
The order granting the new trial should be affirmed.
It is so ordered.
The foregoing opinion by VAN OSDOL, C., in Division One, is adopted as the opinion of the Court en Banc. Clark, Douglas, Ellison, Hyde, JJ., and Leedy, C.J., concur; Tipton and Conkling, JJ., dissent.