State ex rel. Fenlon v. Cummiskey

34 Mo. App. 189, 1889 Mo. App. LEXIS 69

• Court: Missouri Court of Appeals
• Decided: February 5, 1889
• Status: Published

Opinion

Thompson, J.,

delivered the opinion of the court.

This action is brought on the bond of James Cummiskey, as a special commissioner in partition, to recover the sum of one hundred and forty-five dollars alleged to have been received by the principal defendant in the character named, as the distributive share of the plaintiff, Frances Fenlon, and not paid over to her. The answer admits the preliminary allegations of the petition about the partition and admits that, by the decree in partition, Mrs. Fenlon was entitled to seven hundred and ninety-six dollars, out of the proceeds of the sale of the real estate by the special commissioner; but denies that he has failed or refused to account for or pay over to her the sum of one hundred and forty-five dollars and denies that this or any other sum is due to her. It then sets up that, on the twenty-first day of July, 1885, the defendant Cummiskey, as special commissioner in partition, appointed by the circuit court, paid to Mrs. Fenlon the sum of six hundred and fifty-one dollars, being the balance due and owing to her of her distributive share of $796.01 in the hands of the said commissioner. It sets up that the sum of twenty dollars had, before that time, been paid, on her order and by her request, to William S. Stewart, her attorney of record in the partition suit, on account of his services in the said cause; and that the sum of one hundred and twenty-five dollars had been paid by the commissioner to William McCully, on account of the written order of Mrs Fenlon, which alleged order was filed as an exhibit to the petition.

The three sums above named, it will be perceived, amount to the sum of seven hundred and ninety-six dollars (saving one cent, which may be disregarded), which is admitted to have been the total amount of Mrs. Fenlon’s share of the proceeds of the sale for partition. This special matter was put in issue by a reply, which contained other avertments which may be disregarded. The substantial issues for trial therefore were: (1) Whether the defendant Cummiskey, in his character of commissioner for partition, had paid to William S. Stewart the sum of twenty dollars on the order or by the request of Mrs. Penlon. (2) Whether he had paid to William McCully one hundred and twenty-five dollars on account of the written order of Mrs. Fenlon disclosed in the paper filed with the answer and marked exhibit A.

I. Upon the first issue, whether Mr. Cummiskey had paid twenty dollars to Mr. Stewart on the order or at the request of Mrs. Fenlon, it is to be observed that no evidence was adduced showing any such order or request, but the evidence of Mr. Cummiskey himself shows that there was no such order or request. He testified; “The payment I made to Mr. Stewart was previous to the confirmation by the court; the payment was made out of courtesy — that is all; it was a request on his part.” The circumstances that Mr. Stewart may have been the authorized attorney of record of Mrs. Fenlon (which she denies) is quite immaterial, since Mr. Cummiskey had no authority to disburse her money in his hands as trustee for her, in the payment of any debts due by her, albeit to her attorney in the case. The circuit court was therefore in the right in directing the jury to find for the relators as to this item, and this item may accordingly be laid out of view.

II. As to the second item, the paper referred to in the answer as containing the written order of Mrs. Fenlon to pay one hundred and twenty-five dollars to William McCully, was not a written order directed to Mr. Cummiskey at all, but was a paper directed to the judge of the circuit court and signed by four of the parties to the partition proceeding, requesting the court to make an order for the payment, among others, of the sum of one hundred and twenty-five dollars, on behalf of Mrs. Fenlon, to Mr. McCully. This paper, after being entitled in the partition suit, ran as follows: “Now come the undersigned parties to the above suit, and pray for an order of this court upon the sheriff of St. Louis city, or party or parties in custody of proceeds of sale of real estate in said suit described, to pay to William McCully from the moneys due us as distributees thereof, the amounts set opposite our name respectively, to-wit: Mary Ann Kilpatrick, $375.00; Frances and John Fenlon, $125.00; Samuel Kilpatrick, $125.00; Robert Kilpatrick, $125.00; Sarah Kilpatrick, $125.00, —to reimburse said William McCully for money advanced us by him.” The paper was signed by Mary Ann Kilpatrick, Frances Fenlon, Sarah Kilpatrick and Nancy Kilpatrick. Endorsed on it when put in evidence were receipts as follows:—

“Received, July 21, 1885, of James Cummiskey, $625.00, being amounts due on foregoing instrument, as thereupon appears, to-wit: •

Mary Ann Kilpatrick................. $375.00

Sallie Kilpatrick...................... 125.00

Nancy Kilpatrick.................... 125.00

$650.00

“William McCully.”

“Received, Aug. 27, 1885, of James Cummiskey, $125.00, being amount due from Frances Fenlon, on foregoing instrument.

“ William McCully.”

It is to be observed that this instrument is not directed to Mr. Cummiskey, and is not an order to him by Mrs. Fenlon to pay over any money to Mr. McCully on her behalf. It is further to be said that no order was ever made by the circuit court, as requested in this instrument. Nevertheless, Mr. Cummiskey assumed, on what conception of duty we do not understand, nor does his evidence disclose, to withhold from the amount of money coming to Mrs. Fenlon, as her distributive share of the proceeds of the sale in partition, this sum of one hundred and twenty-five dollars, and pay it over to Mr. McCully for her. And he seems to have conceived that it was his duty to do this for her whether she would have it so or not. For what he did in the premises was this : When the time came to pay over to Mrs. Fenlon her distributive share, she and her husband were at Providence, Rhode Island. Mr. Cummiskey transmitted by express to Providence, in currency, the sum of six hundred and fifty-one dollars, together with the following receipt to be signed and returned by the agent of the express company before the money should be paid over:

“ Received of James Cummiskey, special commissioner in partition, case of Mary A. Reed and John Reed v. Mary Ann Kilpatrick, and numbered 66418, Room 5, this twenty-first day of July, 1885, seven hundred and ninety-six and dollars, being in full of my distributive share in the above entitled cause.

“$796.01.”

“The above receipt must be signed as indicated, attested by one witness, and delivery can then be made of $651.00. Failure to obtain'the signatures as shown will require the return of the $651.00 to the undersigned.

“ July 22, 1885.

“ James Cummiskey,

. “ Special Commissioner, 617 Chestnut St.”

“ Please have receipt signed as instructed, collect all charges from John W. Fenlon, and deliver money to him.”

This paper, together with the six hundred and fifty-one dollars, was tendered by the express agent to Mrs. Fenlon and her husband, and on their signing it (Mr. Fenlon as witness), the express agent paid over to them the money, $651.01. When this receipt was put in evidence it contained, after the figures of $796.01, the words and figures, “minus $145.” How these words and figures got upon the instrument is a matter as to which the evidence is in dispute. The express agent testifies that they were not written on the instrument while it was in his hands or before it was returned by him to Mr. Cummiskey; but the evidence for the relators tends to show that it was written on the instrument at the time Mrs. Fenlon received the money. The most that can be said of this matter is that it presented a disputed question for the consideration of the jury.

To make this transaction clearer, it should be observed that when Mr. Cummiskey transmitted this money to Providence by express with this conditional receipt, he also wrote and mailed from St. Louis to Mrs. Fenlon, at Providence, the following letter: “July 24, 1885. Mrs. Fenlon — Madam: I sent you yesterday per Adams express Company, six hundred and fifty-one dollars, being your proportion of the proceeds of sale of property. If the deductions of twenty dollars and one hundred and twenty-five dollars be not correct, and you and your husband decline to sign the receipt as presented, the, Adams Express Company will return the amount. The deduction of one hundred and twenty-five dollars is made in accordance with an agreement signed by you, your mother and two sisters, with Mr. McCully. I have settled with your mother and sisters as above. Respectfully, James Cummiskey.”

The evidence on behalf of the relators is to the effect that the receipt which was tendered by the express company and which was signed and returned, was signed under protest. There was considerable other evidence as to what was said at the time of the signing of it, but it is sufficient to let it rest with this statement.

This receipt was signed by Mrs. Penlon, and counter-signed by her husband as witness, on the twenty-eighth of July, 1885,. On the following day she wrote and forwarded, by mail from Providence to Mr.' Cummiskey at St. Louis, the following letter : “East Providence, July 29, 1885. — Mr. James Cummiskey— Sir: I received your letter of twenty-fourth, and also six hundred and fifty-one dollars, and signed a receipt for same, being part payment of my proportion allowed me by the court. As the deductions are not correct, I trust you will advance me the balance, one hundred and forty-five dollars, and avoid further trouble. Respectfully, Prances Penlon.” This letter was delivered at Mr. Cummiskey’s office, in St. Louis, while he was out of town. According to his testimony, when he returned he went to the express company’s office and procured the receipt. He did not read the receipt beyond noticing the signatures, but supposing that the signing of this receipt by Mrs. Fenlon and her husband was tantamount to an authority to him to pay the one hundred and twenty-five dollars due Mr. McCully, he paid it over to the latter and took his receipt for the same. At the time when he so paid it over, he had not examined his mail, which included this letter of July 29, from Mrs. Penlon, and he did not therefore know that she had prohibited him from making the payment to Mr. McCully. Prom his testimony given on a former trial, and shown on his cross-examination, it appears that “a day or two” elapsed between the return of Mr. Cummiskey to St. Louis and the paying over of the money to Mr. McCully. Soon after the money had been paid over, Mrs. Penlon, who had returned to St. Louis, called on Mr. Cummiskey and demanded the remaining amount due to her from him, and demanded to know why he had paid the one hundred and twenty-five dollars to Mr. McCully notwithstanding her letter of July 29; when he, according to her testimony, told her that the letter did not amount to anything, but according to his own testimony, explained to her that he did it because she had signed the agreement (exhibit A.) and because of a conversation he had with her some two months before, and by reason of the fact that the other heirs had authorized the payments above stated to Mr. McCully.

We need not go into the testimony further with regard to the item of one hundred and twenty-five dollars. It is to be kept in mind that the paper, marked exhibit A., being a request to the court to order the sheriff, or whoever might be the custodian of the proceeds of the sale in partition, to pay over the sums named to McCully, and never having been acted upon by the court, is to be regarded as an abortive paper ; and, as it was not addressed to Mr. Cummiskey, it conferred no authority on him whatever to pay the sum of one hundred and twenty-five dollars out of Mrs. Fenlon’s distributive share to Mr. McCully.

Then, as to the effect of the express company’s receipt. The case has been argued before us orally and in writing, at great length, on the theory that the signing of the receipt in the hands of the express agent, when the six hundred and fifty-one dollars was paid over to her, was tantamount to an authorization to Cummiskey to pay over the one hundred and twenty-five dollars to McCully, and tantamount to a ratification of his payment of the twenty dollars to Stewart. In our opinion no such effect can be ascribed to the paper. A receipt for money is one of the least conclusive instruments of writing of which the law takes notice. It can always be contradicted or explained by parol. This was merely a receipt for money, and, in the absence of any extrinsic facts characterizing the transaction, it did not conclude Mrs. Fenlon from showing that the sum therein described to have been received had not actually been received by her. This conclusion is indisputable, unless there is something in the transaction to take this paper out of the category of a mere receipt for money, and to place it in the category of a contract founded upon a consideration. ■ That it can not take rank in any sense as a contract is too plain for argument. If there had been a question fairly in dispute between Mr. Cummiskey and Mrs. Fenlon as to whether she was entitled to receive six hundred and fifty-one dollars from him, then he might have tendered that amount conditionally, and her acceptance of it and her quittance would have been conclusive upon her as to what was in dispute. But as to her right to receive six hundred and fifty-one dollars there was no dispute on any theory. On any theory which has been advanced by either party, he held that sum of money belonging to her and was bound to pay it over to her unconditionally. Now, what did he do? Instead of tendering it to her unconditionally, he in effect reached it out to her in one hand, and reached out to her in the other hand a receipt by which she acknowledged having received from him not merely the six hundred and fifty-one dollars which he offered her, but seven hundred and ninety-six dollars and one cent, and he in effect said to her: “If you do not sign this receipt for the greater amount, you can not have the lesser amount, although I admit that the lesser amount is due to you.” He was bound to pay her the six hundred and fifty-one dollars unconditionally; and the getting of this money by her can not on any principle be raised to the dignity of a consideration moving her to release the remainder which was due to her.

But as to this larger sum of $796.01, it may be said with equal confidence, on the facts established by this record, that there was nothing whatever to compromise. There is no evidence that Mrs. Fenlon had, prior to the time when this receipt was tendered to her by the express agent, ever authorized Mr. Cummiskey to pay the twenty dollars to Mr. Stewart or the one hundred and twenty-five dollars to Mr. McCully. Instead then of paying over the full amount which was due to her, he took the singular position that it was his duty in some way to collect from her funds in his hands the supposed amount which was due from her to Mr. McCully, and that it was also proper for him to require of her a ratification of his unauthorized act of paying over the twenty dollars to Mr. Stewart; and he deliberately said to her by his letter of July 24, and by the language of the receipt which he had placed in the hands of the express company : “ Unless you ratify the payment of this twenty dollars to Mr. Stewart, and unless you authorize me to pay this one hundred and twenty-five dollars to Mr. McCully, you shall get nothing — the express company shall return the money to me.” It is precisely upon this case that this defense has been predicated, and it is upon no better state of facts that this appeal has been prosecuted.

Giving the fullest possible effect to the signatures of Mrs. Fenlon and her husband upon the receipt which was returned to Mr. Cummiskey by the express company, it does not help out this defense ; for on the day following that on which she signed this receipt, she mailed to him the letter of July 29, and his testimony concedes that this letter and this receipt were received by him contemporaneously, — that is, on his return from his trip out of the city the letter of Mrs. Fenlon was among his mail, and he himself went to the express office and there - obtained the receipt. The mere fact that he may, on the faith of the receipt, have paid over the money to Mr. McCully, in ignorance of the letter, if it were a fact (which the jury probably did not believe) would not help out his defense. The letter was a distinct notice to him not to pay the money over; and having received this notice before he paid the money over, it does not lie in his mouth to say that he had not read it. On bis own testimony, a day at least intervened between his arrival home and tbe paying over of tbe money to McCully. If in tbe meantime be bad not read tbe letter of Mrs. Fenlon, it must be ascribed either to negligence or to a desire not to know its contents. But in point of law, negligent or obstinate ignorance is tbe same as actual knowledge. If notice is communicated to a person by letter, can be put tbe letter unopened in bis poekét or leave it unopened on bis desk, and be beard to say in a court of law that be has not received tbe notice which tbe letter imparts ?

In a record presenting such a state of facts and exhibiting no dispute as to any fact which is essential to tbe determination of the rights of tbe parties, our duty is discharged when we see that tbe verdict and judgment which were rendered in tbe trial court applied tbe law to tbe undisputed facts. It is not necessary that we should scrutinize tbe instructions or scan tbe intermediate rulings, the trial appearing to have been in all respects a fair one.

The judgment is accordingly affirmed.

All the judges concur.