Knapp v. Knapp

96 S.W. 295, 118 Mo. App. 685, 1906 Mo. App. LEXIS 362

• Court: Missouri Court of Appeals
• Decided: April 10, 1906
• Status: Published

Opinions

BLAND, P. J. —

Omitting caption, the petition is as follows:

“Plaintiff states that Ralph H. Pybus Knapp, deceased, late of the city of St. Louis, State of Missouri, departed this life on or about the twentieth day of January, 1904, leaving hijn surviving, as his widow, the plaintiff herein; that thereafter, to-wit, on the eighteenth day of April, 1904, the plaintiff was, by the probate court in and for the city and State aforesaid, duly appointed administratrix of the estate of the said Ralph H. Pybus Knapp, deceased; that, under which appointment, she was duly qualified, and is now in charge of said estate as the administratrix thereof.

“Plaintiff states that in or about the month of May, 1902, the said Ralph H. Pybus Knapp, deceased, placed in the keeping, care and custody of the defendant, a large sum of money, to-wit, the sum of five thousand dollars, with and under the understanding and agreement, then had and made, that said sum of money should be held and retained by the defendant for the said Ralph H. Pybus Knapp, and to -be repaid and redelivered to the said Ralph H. Pybus Knapp, upon request; that the defendant, since said last-mentioned date, has continued to retain the possession and custody of said sum of money; that, though the payment Of said sum of money has been demanded by the plaintiff, as such administratrix, defendant has wrongfully refused, and still refuses to pay the same, or any part thereof, to the plaintiff.

“Wherefore, plaintiff prays judgment for the sum of five thousand dollars, with interest, and the costs of this action.”

The answer was a general denial.

The cause was submitted to the court, without the intervention of a jury, who, after hearing the evidence, found the issues for plaintiff and rendered judgment in her favor for twenty-one hundred and eighty dollars and interest thereon. After taking the usual preliminary steps, defendant appealed.

The history out of which the litigation grew, briefly stated, is as follows: In 1902, Ralph Knapp, as the elder son of his father, was, under the law of primogeniture, entitled to an estate, or interest in an estate in England of the value of about seven thousand dollars. He employed the law firm of Dodge & Mulvihill, of the city of St. Louis, to establish his right in the estate. His attorneys were successful and as soon as the matter was settled in his favor, he sailed for England and collected about seven thousand dollars of the estate. He purchased a draft in London for $5,811.43, payable to his mother, and sent it to her. She received the draft, cashed it and ont of the proceeds handed or gave her'daughter, the defendant herein, two thousand dollars, which the latter, on January 23, 1903, deposited to her individual credit' with the Mississippi Valley Trust Company. Ralph Knapp spent the greater portion of the balance of his inheritance in seeing Europe and then returned to his home in St. Louis. On his return he refused to pay Dodge & Mulvihill their fee of eighteen hundred dollars. They brought suit against him to recover the fee and obtained a judgment for the amount claimed. The judgment was collected of Knapp’s mother through garnishment proceedings-.

It is practically conceded by defendant that Ralph Knapp placed the $5,811.43 in the hands of his mother for the fraudulent purpose of defeating Dodge & Mulvihill in the collection of the debt he owed them.

Defendant testified that she had kept a deposit account with the Mississippi Valley Trust Company for several years prior to 1903. The state of her account on May 16, 1903, was as follows:

Balance...............$ 94.77

January 23,1903 ........ 2,000.00

January 26, 1903 ........ 30.00

February 4, 1903 ........ 67.00

February 5, 1903 ................ $ 7.00

February 9, 1903 ................ 2,180.00

May 16,1903 .................'... 4.77

$2,191.77 $2,191.77

Defendant’s evidence shows that her income from all sources was, and had been for several years, thirty-five dollars per month. She testified that after her brother returned from England, she gave him several checks on her bank account for the purpose of enabling him to pay his bills and at one time gave him a check for one hundred dollars. On February 19, 1903, defendant, accompanied by Mrs. Mullins, a friend, went to the Mississippi Yalley Trust Company and withdrew twenty-one hundred and eighty dollars in currency, which she placed in the bosom of her shirtwaist. Defendant and her friend then walked over to the William Barr Dry Goods Company where they met Ralph Knapp and Charles Ramlose, who had been waiting there for them for about half an hour. When the parties met, Ralph Knapp, addressing defendant, his sister, said: “Well, did you get my money, Sis?” Defendant answered, “Yes, Ralph, I have it here,” pointing to the bosom of her shirtwaist. Defendant testified' that after she withdrew the money from the trust company she took it home and kept it there. The evidence tends to show that defendant apprehended she might be garnisheed on process against her brother and withdrew the money from the trust company to defeat the garnishment; it also shows that on several occasions she stated that she was taking care of her brother’s money for the purpose of avoiding the payment of what she said was “an unjust claim against him.” On the death of Ralph Knapp, defendant made arrangements for his funeral and stated she had some four or five hundred dollars of his money with which she intended to pay the funeral expenses, but she never paid them. The evidence for the defendant tends to show that the money sent from England by Ralph Knapp to his mother was in part payment of a debt he owed her, and that out of this money she made defendant a present of two thousand dollars.

It is contended by defendant that the evidence tends to show two theories: one, that the money sent by Ralph Knapp to his mother was in payment of a debt he owed her; the other, that the money was transferred to her by Ralph for the purpose of defrauding his creditors; and it is strenuously contended there is no evidence that the money was deposited by Ralph Knapp with his mother to he returned to him, and hence there is no proof of a bailment. If either theory of ■ defendant is correct, then the judgment should be reversed, for if the money was sent from England to pay a debt, which Ralph owed his mother, of course,it cannot be recovered, nor can it be recovered by Ralph’s administratrix if he conveyed it to his mother for the purpose of defrauding his creditors. [Brown’s Admr. v. Finley, 18 Mo. 375; Hall v. Callahan, 66 Mo. l. c. 322; Zoll v. Soper, 75 Mo. l. c. 462; Jackman v. Robinson, 64 Mo. l. c. 292; Roan v. Winn, 93 Mo. 403, 4 S. W. 736; Thomas v. Thomas, 107 Mo. 459, 18 S. W. 27; Goldstein v. Winkleman, 28 Mo. App. 432.] There is no evidence showing or tending to show an arrangement or understanding that Ralph Knapp’s mother should hold the London draft for him, or that she should cash it and hold the identical cash to be returned to him on demand; and defendant contends that for this reason (that the identical thing or property was not to be returned) it is conclusive there is no bailment in the case. The general rule is that there can be no bailment unless the identical thing bailed is to be returned to the bailor. [Coleman v. Lipscomb, 18 Mo. App. 443; Potter v. Mt. Vernon Roller Mill Co., 101 Mo. App. 581, 73 S. W. 1005; Trunick v. Smith, 63 Pa. St. l. c. 23.] Bailment in most instances is founded on contract, but not in every instance. As said in Hale on Bailments, p. 14, “Wherever possession of a thing is knowingly acquired, unaccompanied by the right of ownership, a bailment relation is established, and the person in possession holds the things acquired simply as bailee.”

Schouler says: “The simple fact of knowingly holding possession of property which belongs to another will oblige the possessor, no matter how he came by it, to apply a certain care and diligence, and stand to a certain bailment accountability.” [Schouler’s Bailments and Carriers (3 Ed.), sec. 3.]

There is evidence in the record tending to show that defendant knowingly came into possession of the two thousand dollars in money belonging to Ralph Knapp, unaccompanied with the right of ownership in herself; if so, then she became and was, as to such money, a bailee. But her counsel insists that as she deposited this money with the Mississippi Valley Trust Company to her personal credit, and as there was no understanding that the identical money she received from her mother should be returned to her brother, there was no bailment.

In Repplier v. Jacobs, 149 Pa. St. 167, the court, speaking in respect to the necessity of identifying money, at p. 169, said: “The argument that it was not the same money [the same argument made here] that plaintiff originally deposited but part of the winnings of the illegal transactions is of no weight. The cases where money is required to be earmarked, or where the law will inquire whether it is the identical coin or bank notes are exceptional. For all ordinary purposes in law as in the business of life, the same sum of money is the same money, whether it is represented by the identical coin or not.”

This is sound reasoning and sound practical common sense to make use of in the ordinary purposes of the law and in business life. .It his been repeatedly held in circumstances where the identical grain commingled with other grain is not to be returned to the depositor, but a like quantity of the same kind and quality is to be returned, are not sufficient to convert the transaction from a bailment into a contract of sale. [See authorities cited in Potter v. Mt. Vernon Roller Mill Co., supra, p. 584.] The same rule has been applied in replevin suits to recover specific personal property, as where the goods replevied are mixed with others, but are nevertheless of the same nature and value, as in the case of grain, though an actual separation cannot be made by identifying each particle, if a division of equal value can be made, it has been repeatedly held the plaintiff may seize his aliquot part. [Kaufman v. Schilling, 58 Mo. 218; Groff v. Belche, 62 Mo. 400; Huff v. Henry, 57 Mo. App. 341; Story on Bailments, sec. 40.] As demonstrated by the foregoing cases, the law is not so much concerned with technical rules and subtle reasoning to beach a correct conclusion as it is to adopt practicable and workable rules suitable to the ordinary business of life; and we do not think it was of any consequence that the defendant, after receiving the two thousand dollars from her mother, deposited it with the Mississippi Valley Trust Company to her individual credit, if the money came into her possession unaccompanied by the right of ownership and she knew it was her brother Ralph’s money; nor is it of any significance that the money was not earmarked. The same sum of money she received is, for all practical purposes and in law, the same money. There is abundant evidence in the record in support of the finding of the learned circuit judge, that the defendant held the money as bailee, and for this reason this finding is conclusive here. But we think the judgment is excessive. There is not a ray of evidence that defendant ever received more than two thousand dollars of her brother’s money. Out of this the plaintiff proved that defendant had returned to her brother at one time, one hundred dollars to pay on some mining stock he had bought. Defendant also testified that she gave him checks at other times to pay his bills. The evidence shows, too, that defendant had a balance of $94.77 to her credit on her account with the Mississippi Valley Trust Company when she deposited the two thousand dollars, and that she afterwards deposited ninety-seven dollars. There is no evidence that any part of either of these sums was the money of Ralph Knapp, therefore, the evidence shows that when defendant drew the twenty-one hundred and eighty dollars from the trust company, she drew out her individual money as well as the money she held as bailee, and placed the package of money, her own and her brother’s, in the bosom of her shirtwaist. The only possible theory on which the court could have found that she held the entire sum as bailee, is on the evidence that when asked by her brother at Barr’s store, if she had his money, she answered, “Yes, I have it here,” and pointed to the bosom of her shirtwaist. Her admission, in the circumstances, was not an admission that all the money she had in the bosom of her shirtwaist was her brother’s money. At that time, according to plaintiff’s own evidence, defendant could not have had over nineteen hundred dollars of her brother’s money in her possession, and the judgment should have been for that sum with six per cent interest thereon from the date the suit was commenced, May 20, 1904. Wherefore it is considered by the court that the judgment be reversed and the cause remanded with directions to the circuit court to render judgment for plaintiff in the sum of nineteen hundred dollars with six per cent interest thereon from May 20, 1904.

All concur.