* NOTE: Opinion filed at May Term, 1935. July 9, 1935; motion for rehearing overruled July 30, 1935; motion to transfer to Court en Banc filed; motion overruled at September Term, November 12, 1935.
This is a statutory proceeding to discover assets commenced in the Probate Court of the City of St. Louis which plaintiff as administrator of the estate of Vincenzo Lolordo alleged that defendant wrongfully withheld. Said assets were alleged to be "$18,000 cash proceeds from the sale of 3103 and 3220 Washington Avenue, City of St. Louis, Missouri." Interrogatories concerning these transactions were propounded and answered by defendant who stated that he sold the properties mentioned at foreclosure sales as trustee under deeds of trust thereon and that he had accounted to the administrator for the proceeds thereof. Upon the defendant's application, the matter was certified by the probate court to the circuit court. The case was there tried before a jury which returned a verdict for plaintiff for $10,978. Defendant has appealed from the judgment entered thereon.
Defendant makes three assignments of error as follows: (1) The court erred in overruling defendant's demurrer to the evidence at the close of the case; (2) that the court erred in permitting plaintiff to impeach the testimony given by defendant when called as a witness by plaintiff; (3) that the court erred in not referring the case to a referee and in not passing upon the question of reference. These assignments will be considered in inverse order.
[1] Assignment No. 3 cannot be considered because not properly preserved for review. There is no ground stated in defendant's motion for new trial concerning failure to refer the case to a referee, but only complaints that the court erred in refusing to transfer the case to the equity division and that the court did not dispose of defendant's application for such transfer. The record does not show that such an application for transfer was overruled or otherwise acted upon. The record does show that on the same day that the motion was filed the case was assigned to Division Nine; that the trial commenced on that day; and that before any witnesses were heard defendant's counsel called the attention of the trial court to the motion to transfer. The record further shows that defendant's counsel explained the nature of the case to the court and that the
court said "Well, there is nothing complicated about that." Plaintiff's counsel then stated that "the statute provides these matters be tried before a jury" and asked the court to hear it before a jury. The court said: "All right, file your motion." Defendant's attorney said: "In the course of the trial, Your Honor can pass on it." The court replied: "Yes, as the matters come up from time to time, I'll pass on them." There is no further reference in the bill of exceptions to this motion. A jury was selected and plaintiff's counsel proceeded to make his opening statement and call his witnesses. If the remark of the court can be considered as a ruling, no exception was saved to it, and it was not called to the court's attention by the motion for new trial. Objection to a reference or to a failure to refer is a matter to be raised by exception. Therefore, there is nothing upon which we can act. [Secs. 1008 and 1061, R.S. 1929; Bank of Darlington v. Atwood, 225 Mo. App. 974, 36 S.W.2d 429; Hansen v. Duvall, 333 Mo. 59, 62 S.W.2d 732; State ex rel. Kimbrell v. People's Ice, Storage Fuel Co., 246 Mo. 168, 151 S.W. 101; see, also, Wahl v. Cunningham, 332 Mo. 21,56 S.W.2d 1052, and cases cited.]
[2] Defendant's second assignment must be overruled. The rule as to impeaching a party's own witnesses does not apply to such testimony of his adversary as was given in this case under the circumstances here. Our statute, Section 1725, Revised Statutes 1929, provides that either party has the right to compel the opposite party to testify and may examine him under the rules of cross-examination. The very purpose of cross-examination is to test the correctness of a witness's story and is in the nature of an attack upon its truth or accuracy. The privilege of thus examining an adversary is granted, because, as said by this court en banc, "There is nothing in the law counter to the Biblical admonition `By thy words thou shalt be condemned.' Matt. XII, 37." [Smith v. Ohio Millers' Mutual Fire Ins. Co., 320 Mo. 146,6 S.W.2d 920, l.c. 928.] Neither is there anything to prevent the plaintiff, after so examining the defendant, from producing whatever evidence he can to show that "what he says is not strictly in accord with the truth" and to leave it to the court or jury "to place a proper estimate on it." In any case where a party desires to prove an essential part of his case by his opponent, he is permitted to do so, and he is only bound by the part of his adversary's testimony which he himself offers and vouches for as the truth. A party cannot be permitted (except where there is an honest mistake) to later deny what he, himself, claims to be the truth and that is why he is bound by the evidence of the witnesses he produces to prove the allegations of his pleadings. He is not even bound by their testimony if, to his surprise, they turn out to be unfriendly or testify to the contrary of what he has in good faith been led to expect. [Smith v. Ohio Millers' Mutual Fire Ins. Co., supra, and cases therein cited.] Plaintiff here at all times claimed that
defendant had not paid to the Lolordo estate the proceeds of the foreclosure sales. He put defendant on the stand to find out how much of this he would admit was unpaid, not to prove that he had paid it. After examining defendant, plaintiff then was entitled to show by any other witnesses available that defendant never had paid any amounts which he would not admit were unpaid.
[3] There remains the question of the demurrer to the evidence. Plaintiff John (or Giovanni) Lolordo was, in 1925, appointed administrator, by the Probate Court of the City of St. Louis, of the estate of his deceased brother Vincenzo Lolordo. Defendant was the attorney for plaintiff as administrator and had also acted as Vincenzo's attorney during his lifetime. The assets of the estate included properties at 3103 and 3220 Washington Avenue. A petition was filed to sell this real estate under an order of the probate court but, because of Vincenzo's widow being in Italy, so that her dower right could not be readily obtained, this was abandoned and the properties were sold under foreclosure of first deeds of trust thereon. While these properties were sold at a foreclosure sale, the amount for which they were to be sold was agreed upon as though they were to be sold at private sale and this price was in excess of their appraised values. Defendant, on applications to the circuit court, was appointed successor trustee of both deeds of trust. The property at 3220 Washington was sold to Nellie D. Scott at the foreclosure sale October 27, 1925. The property at 3103 Washington was sold at foreclosure sale on January 14, 1926, to Morris Lipschitz. The first mortgages and delinquent taxes were each time paid out of the agreed sale price, the balance was turned over to defendant, and deposited by him in his own name (or in the name of himself and his stenographer who at least had authority to draw checks on it) in an account in which it was commingled with defendant's own personal funds. Just how much defendant received after the mortgages and taxes were paid and how much thereof he had accounted for was the issue tried in this case.
There was no dispute about the fact that the agreed sale price for the property at 3220 Washington was $20,500; and that the trustee's deed stated that it was sold for $19,270. The difference was the taxes due estimated at $1230. Actually it took $1237.87 to pay these taxes and there was another tax item of $14.83. The amount which defendant received as trustee from the sale was $14,770, which figure was reached, as follows:
Total sale price $20,500.00 Retained to pay taxes 1,230.00 __________ Consideration stated in trustee's deed $19,270.00 Check to holder of first trust deed 4,500.00 __________ Amount deposited in defendant's bank account $14,770.00
Defendant's own testimony was that he paid the excess of taxes and that the amount paid for the first mortgage and accrued interest was $4522. There is also evidence that $13.24 was paid as an insurance adjustment; that $20.50 was paid for revenue stamps on the trustee's deed (plaintiff claims the purchaser paid these items); that $4 was paid for court costs in obtaining his appointment as trustee; that $74.42 was paid for notice of foreclosure sale; and that $617.50 was paid as a real estate broker's commission (these last three plaintiff does not dispute) for obtaining the buyer at the sale. In addition, defendant was entitled to the statutory trustee's fee of $131.35 (Sec. 3092, R.S. 1929), although nothing was said about this at the trial. These items total $905.71, so that if defendant be given credit for all of them, there remained in his hands $13,864.29 from this sale which belonged to the Lolordo estate.
There is much more dispute about the agreed sale price for the property at 3103 Washington and the disbursements therefrom. The trustee's deed stated that it was sold for $8100. Defendant testified that the taxes were paid out of this amount. Plaintiff had the testimony of the purchaser that he paid $8100, and all taxes, which he said made the total about $10,000. The real estate man who arranged the sale said the total sale price was $9800, and that this included all taxes. The jury had the right to find that it was at least that much and we must consider on ruling the demurrer that they did so find. Starting with this figure the evidence shows payments made from it, as follows:
Total sale price $9,800.00 Real estate broker's commission 300.00 _________ $9,500.00 Retained to pay taxes (actually $1403.23) 1,400.00 _________ Consideration stated in trustee's deed $8,100.00 Paid to holder of first trust deed 3,892.40 _________ $4,207.60 Paid to holder of second trust deed 600.00 _________ $3,607.60
There is evidence to show that $8.50 was paid for revenue stamps; that $4 was paid for court costs in obtaining appointment as trustee; that $71.06 was paid for notice of foreclosure sale; and defendant was entitled under Section 3092, Revised Statutes 1929, to a trustee's fee of $75.50. These items total $159.06, so that if defendant be given credit for all of them, there remained in his hands $3,448.54 from this sale which belonged to the Lolordo estate. Defendant claimed credit for another real estate commission of $215 but his authority
to pay this was disputed and the jury had the right to reject it. This was also true of the attorney's fee of $500, which defendant claimed he paid to another lawyer for acting as attorney for him as trustee. In the absence of a showing that this was necessary and was authorized by the trust deed, he had no right to do so. [Condict v. Flower, 47 Mo. App. 514; Tracy v. Gravois Ry.,13 Mo. App. 295, affirmed 84 Mo. 210.] There was also evidence that plaintiff as administrator gave defendant $900 for expenses in these matters and that defendant retained $235, giving him back $665. This was sufficient to pay the trustee's fees to which defendant was entitled and some of the other smaller items for which he claims credit.
There was considerable controversy about the total amount of taxes on this property and who paid them, which the evidence does not make entirely clear. Lipschitz, the purchaser, testified:
"What I can get off the books, it was $8,100.00, if I am not mistaken and that was the purchase price, and then we had to pay all taxes, back taxes, street taxes, which went up to nearly $10,000.00. . . . The way I recollect it, I bought it for $8,100.00, and supposed to pay all these specials that accumulated on it in addition to the $8,100.00. I paid the trustee at auction $8,100.00. . . . I know I paid all taxes and $8,100.00. That is what we paid for it but I am not sure whether I paid it direct to Mr. Shelp. . . . It is clear in my mind that I put up $9,800.00 for that property; that included the commission. . . . (Referring to memorandum.) The taxes is marked $1,403.23, and that is with the street bill, and $8,100 principal, and $300 commission."
In this he was corroborated by the real estate broker Mr. Shelp, who testified from memoranda, made at the time, as follows:
"The memorandum I have on the back, is that there was $1,400.00 taxes and street bills, and $8,100.00 purchase price, and $300.00 commission he gave me, making a total of $9,800.00. This totals $9,803.22, and that is what he deducted, $3.22. I was to get $300.00, and he gave me $296.00. I get a little less than he agreed to give. . . . It is a sort of memorandum of the approximate debts that were against this property that was to be foreclosed, that we had looked up at the City Hall and other places, tax bills and street bills. The total we have is $5,370.99. That includes interest in the first deed of trust on the property, and street bill. The selling price was $9,800.00. That memorandum shows the amount to the deed of trust as $3,700.00."
It does not seem to be possible to make the various figures as to taxes, in these memoranda or in the evidence, come out to one certain amount. In the memorandum showing the total sale price of $9800 the taxes and tax bills were $1403.22. In the memorandum showing total indebtedness against the property of $5370.99, it would appear from deducting the amount of the first mortgage and interest
therefrom ($3892.40), that the taxes and tax bills were $1478.59. The testimony of Lipschitz is that he paid $1660.22 ($1170.97 and $590.25), which would show his $10,000 total. Defendant claims that they amounted to $1744.69; that there was another old one of $1478.88; and that he paid them all out of the $8100. Whatever they were, the dispute is: Who paid them? and, Were they paid in addition to the $8100 consideration stated in the trustee's deed? We hold that this made a question for the jury to settle. It is interesting to note that the items for which defendant claimed credit would take almost every cent of the sale price if it was only $8100. Without including any attorney's fee or trustee's fee they amount to $8014.53.
While defendant claimed an allowance for the payment of the old special tax bill on this property of $1478.88, this tax bill shows on the front thereof an assignment to the West St. Louis Trust Company from the street contractor to whom it was issued, and also the following statement: "St. Louis, Feb. 9, 1922. Received payment in full of the above amount. West St. Louis Trust Co. Earle Meeks, Sec." On the back is also this statement: "Bill entered satisfied in Vol. 62, page 163. St. Louis, Feb. 27, 1922. Louis Nolte, Comptroller." Since Vincenzo Lolordo did not die until 1925, the jury had the right to believe, as plaintiff claimed, that he paid this tax bill during his lifetime.
[4] According to the computation above made, which gives defendant the benefit of some items in dispute, he held $13,864.29 from the first sale and $3448.54 from the second which belonged to the Lolordo estate, a total of $17,312.83. Whether he had this amount, or only about $14,000 as he claims, it was his duty to immediately turn it over to the plaintiff as administrator of the estate to which it belonged. Defendant seems to take the view that this controversy is a personal one between himself and John Lolordo; and that, even if he has not shown that he has expended all of the money for the benefit of the estate, his demurrer to the evidence should have been sustained if he showed that an amount equal to the rest of it was expended for the benefit of John Lolordo personally. This overlooks the true nature of this proceeding. Plaintiff's right to a judgment herein is not based upon what he is personally entitled to as his own, but upon what belongs to the estate of Vincenzo Lolordo, for which he is acting in a representative capacity as administrator. Defendant's own testimony shows that the court should have overruled the demurrer to the evidence, because he admitted that he received the proceeds of these two properties and did not turn these proceeds over to the administrator but put them in his own bank account with his own personal funds and that they were not all used for the benefit of the estate. In this situation, he was not entitled to have the court rule a demurrer to the evidence in his favor because, if there was evidence reasonably tending to show any amount of these proceeds
had not been so paid or accounted for, it was the duty of the court to submit the case to the jury to determine what that amount was. What he paid for the administrator personally and not for the estate was at his own risk and must be considered as paid out of his own personal funds and not out of these sale proceeds, which he held as trust funds, because it is a well-established rule that when a trustee has received and commingled trust funds with his own funds, it is presumed, in the absence of a contrary showing, that the trust funds are still there, and it will be considered that what was paid out of the commingled funds for other than trust purposes was paid out of the trustee's personal funds and not out of the trust money, and that all the rest remains as trust funds. [State ex rel. Talbott v. Shain,334 Mo. 617, 66 S.W.2d 826; Orr v. St. Louis Union Trust Co.,291 Mo. 383, 236 S.W. 642; Horigan Realty Co. v. First National Bank,221 Mo. App. 329, 273 S.W. 772; Bishop v. Mahoney (Minn.), 73 N.W. 6, L.R.A. 1916c, 22 note; Knatchball v. Hallett, L.R. 13 Ch. Div. 696.] Taking the above figure of $17,312.83, which the jury could have found under the evidence was the net proceeds of the sales even after allowing defendant credit for some disputed items, and allowing defendant credit for the probate claims and costs thereafter paid which plaintiff admits were proper (as shown in the statement hereinafter set out) we find that they amount to $5345.69; and that this would still leave defendant to account for $11,967.14. This is more than the amount of the verdict.
Defendant makes no assignment of error that the evidence was insufficient to show that there was as much due from him as the amount of the jury's verdict, but seems to erroneously assume that this is the question on his assignment that the court erred in overruling his demurrer to the evidence. If he had properly raised such a question it would have to be decided against him, as the computation we have made demonstrates.
The statements in defendant's own brief would force us to the same conclusion. It is there admitted that no testimony but his own supports the following items:
Probate Court work (attorney's fee) $ 600.00 Special tax bill, 3220 Washington 1,478.88 Judgment against V. Lolordo — 3220 781.00 Judgment against V. Lolordo — 3220 700.00 Father Spigardi — note of V. Lolordo 700.00 Father Spigardi — Mass. 80.00 Domenic Dimaggio — note of V. Lolordo 600.00 _________ Total $4,963.88
The jury, of course, did not have to accept his testimony about any of them and it cannot be a matter of great surprise that they did not accept it in view of defendant's testimony that he "had no canceled
checks for any of these amounts;" that he "didn't personally keep a book or record;" and that most of his testimony about them depended upon his own recollection which was not always definite and certain. In addition to these amounts defendant admits that there is $2,810.11 more that he can only obtain credit for upon the theory that the sale price of the property at 3103 Washington was $8100; that he paid all of the taxes out of that amount; and that he is entitled to credits for personal obligations of the administrator. Adding these two amounts together ($4963.88 plus $2810.11) there was an amount in dispute of $7773.99. Disregarding all other disputed items except defendant's own $3900 claim against the estate, there is more than the amount of verdict of the jury, which they reasonably could have found that defendant was improperly withholding from the estate. While it seems to be admitted that defendant had filed a claim for $3900, and that it had been allowed against the estate, it was not shown either what classification had been made of it in the probate court, what the total assets of the estate were, what the total demands allowed against the estate were, whether this claim was in a class which would be entitled to any payment at all, or if so how much. [See Sec. 182, R.S. 1929.] It does appear that a claim for $2285 had been allowed in favor of the widow of Vincenzo Lolordo which would be entitled to preference over plaintiff's claim. [See Secs. 106-110, R.S. 1929.] Certainly the mere fact that defendant had an allowed claim for $3900 was not enough to authorize him to withhold that amount of the estate's funds from the administrator. If defendant's $3900 claim is valid and properly allowed and there are sufficient assets to pay the claims in the class in which it has been classified, he may still be paid the amount of it or whatever proportion thereof is paid on claims of its class whenever the probate court makes an order for a disbursement, which is applicable to claims of its class. We cannot determine that question in this court upon this record.
We have arranged all the figures appearing in the evidence, to make a complete statement of the claims of the parties, to-wit:
Items for which Amounts defendant Amounts admitted Amounts credit is claimed claims he paid as proper credits in by defendant by plaintiff dispute
Foreclosure sale — 3220 Washington
First trust deed and interest $ 4522.00 $ 4500.00 $ 22.00 Court costs — appointment 4.00 4.00 Foreclosure notice 74.42 74.42 Revenue stamps 20.50 20.50 General taxes 1237.87 1230.00 7.87
Sprinkling taxes 14.83 14.83 Broker's commission for sale 617.50 617.50 Insurance adjustment 13.24 13.24 First trust deed and interest 3892.40 3892.40 Court costs — appointment 4.00 4.00 Foreclosure notice 71.06 71.06 Revenue stamps 8.50 8.50 Special tax bill 1478.88 1478.88 Other taxes 1744.69 1400.00 344.69 Broker's commission; Lauenstein 215.00 215.00 Attorney's fee as trustee's attorney both sales 500.00 500.00 Trustee's fee for both sales 212.00 212.00 Second trust deed covering both properties 600.00 600.00 Claims and costs — Lolordo Estate
Probate Court costs 89.60 89.60 Probate Court notices abandoned sales 105.20 105.20 Other Probate Court notices 24.60 24.60 J.C. Bensiek funeral expenses 685.30 685.30 J.C. Bensiek Cemetery lot 143.00 143.00 Moceri Monument Co. — monument 625.00 625.00 Dr. John M. Dean 249.00 249.00 Ely-Walker Dry Goods Co. 1123.50 1123.50 Mercantile Trust Co. 2300.49 2300.49 Funeral Mass. 80.00 80.00 Attorney's fee for Probate Court work 600.00 600.00 Judgment against V. Lolordo 781.00 781.00 Judgment against V. Lolordo 724.00 724.00
Note of Father Spigardi signed by Giovanni Lolordo (the administrator) 700.00 700.00 Note of V. Lolordo to Domenic Dimaggio 600.00 600.00 Defendant's claim against the estate 3900.00 3900.00 Defendant's claim against Giovanni Lolordo 3900.90 3900.00 __________ __________ __________ $31,862.48 $17,752.31 $14,110.17 Disputed claims 14,110.17 __________ __________ __________ Totals $31,862.48 $31,862.48
The conclusions to be drawn from these figures are:
First, if defendant had only to account for $28,600 and all of his claims were established he would have paid out all of the sale money and $3262.48 besides.
Second, if defendant is charged to account for $30,000, by reason of taking $9500 ($9800 — $300 commission) as the sale price of 3103 Washington, and if he is only credited with the amounts admitted by plaintiff to be proper ($17,752.31), then the difference between this amount and $30,000 is $12,247.69.
Third, the jury, if it took the latter amount, allowed defendant credit for over $1200 of the items in dispute.
Fourth, there was substantial evidence to warrant a submission of the case to the jury.
The judgment is affirmed. Ferguson and Bradley, CC.,
concur.