author: FERRISS, P. J.

text:
    MARGARET L. WILLIAMS v. MARGARET L. KEEF et al., Appellants.
    Division Two,
    March 21, 1912.
    1. RESULTING TRUST: Proceeds of Wife's Land: Presumption. As the law stood in 1867 the husband had a right to reduce to his possession, and to become the absolute owner of, the proceeds of a sale of his wife’s real estate not held by her as a separate estate; and if he used the money arising from a sale of her land to purchase other land and took the title in his own name, it will be assumed that he intended to reduce the money to his possession and did so with her consent, in the absence of a showing of any agreement between them that he took the property as. her agent or trustee.
    2. -: Long-Settled Titles. It is not the policy of the law to allow long-settled titles to be easily disturbed. The evidence should be strong enough to remove all doubt that the husband, who used the proceeds of the sale of his wife’s land to buy other land and took the title in his own name, in whom it was permitted to remain for thirteen years prior to his death and twenty-seven years thereafter, did not intend to reduce said proceeds to his own use, but in taking the title in his own name was acting as her agent or trustee.
    S. -: Evidence: Proximity of Sale and Reinvestment. The _ fact that the husband and wife sold her land, and two days later he bought another tract and took the title in his own name, does not afford a basis for an inference strong enough to overcome the presumption that he intended to convert the money to his own use and that she assented thereto.
    4. -: Old Recollections. Recollections of casual remarks made by a deceased grantee as to the actual owner of the land, made from twenty-eight to forty years prior to the trial, are extremely unreliable as tending to establish a resulting trust in the grantee’s wife.
    5. PLEADING: Insufficient: Objection First on Appeal. It would . be unfair to treat as fatal an objection, made for the first time in the appellate court, to the form of an answer, which objection could have easily been met by an amendment in the trial court.
    Appeal from Carroll Circuit Court. — Eon. John P. Butter, Judge.
    Reversed.

      John 8. Crawford and Jones & Conldvng for appellants.
    (1) The evidence is not sufficient to support the judgment. Evidence to establish a resulting trust must be so clear, strong and convincing as to leave no reasonable doubt in the mind of the chancellor as to the existence of the trust. The evidence does not measure up to that standard. Burdett v. May, 100 Mo. 13; Smith v. Smith, 201 Mo. 547; Kang v. Isley, 116 Mo. 155; Garrett v. Garrett, 171 Mo. 155; Modrell v. Riddle, 82 Mo. 31; Philpott v. Penn, 91 Mo. 38; Kennedy v. Kennedy, 57 Mo. 73; Ringo v. Richardson, 53 Mo. 386; Rogers v. Rogers, 87 Mo.- 257; Bradley v. Bradley, 119 Mo. 61; McFarland V. Laforce, 119 Mo. 585; Curd v. Brown, 148 Mo. 82; Viers v. Yiers, 175 Mo. 444; Reed v. Sperry, 193 Mo. 167; Johnson v. Quarrels, 46 Mo. 423; Woodford v. Stevens, 51 Mo. 443. (2) Under the law, as it existed in 1867 when respondent’s forty acres of land was sold to Allison, it not being her separate estate, if her husband, John F. Winkler, took the proceeds into his possession and under his control, it became his absolute property, and if he invested such proceeds in the land in controversy and took the deed in his own name, it became his absolutely. Smith v. Smith, 201 Mo. 549; Bank v. Fry, 168 Mo. 508; Tillman v. Tillman, 50 Mo. 40; Woodford v. Stevens, 51 Mo. 443; Ki dwell v. Kirkpatrick, 70 Mo. 214; Leete v. Bank, 141 Mo. 574; Modrell v. Riddle, 82 Mo. 36; Sloan v. Torrv, 78 Mo. 626; Dillenberger v. Wrisberg, 10 Mo. App'. 465.

      Lozier, Morris $ Atwood for respondent.
    (1) There is abundant evidence to support the finding and decree of the chancellor. Hammons v. Renfrow, 84 Mo. 341; Clark v. Clark, 86 Mo. 122; Botts v. Hooch, 97 Mo. 90; McCoy v. Hyatt, 80 Mo. 134; Woodford v. Stephens, 51 Mo. 447; Robert v. Walker, 101 Mo. 601; Holthaus v. Hornbostle, 60 Mo. 439; Bank v. Fry, 168 Mo. 492; McMunnigal v. Aylor, 204 Mo. 28; Admr. v. Walker, 25 Mo. 375; Kidwell v. Kirkpatrick, 70 Mo. 216; Pensenneau v. Pensenneau, 22 Mo. 27; Alkire Co. v. Ballenger, 137 Mo. 369; Freeland v. Williams, 220 Mo. 217; Depas v. Mayo, 11 Mo.. 319; Bank v. Nichols, 235 Mo. 401. (2) The amended separate answer of Margaret Lee Keef does not controvert the allegations in respondent’s bill, and they are, therefore as to her, taken as confessed, under the statute. Secs. 604 and 628, R. S. 1899 ; Dazell v. F. & C. Co., 176 Mo. 279; Bales v. Bennington, .1.36 Mo. 528; State v. Club, 200 Mo. 65.
   FERRISS, P. J.

— Appeal from a judgment of the circuit coux*t of Carroll county, declaring a resulting trust in favor of plaintiff in forty acres of land. Here are the facts:

In April, 1866, there was conveyed to plaintiff, who was then the wife of John F. Winkler, by general warranty deed, a certain forty acres in section 33, township 52, in Carroll county. On August 24, 1867, the plaintiff joined her said husband in a warranty deed conveying this forty acres to one Allison for a recited consideration of $1000. On August 26, 1867, said John F. Winkler purchased from one Thompson forty acres in section 6, township 51, and eight acres additional in said township in Carroll county, and received a warranty deed therefor in his own name, of date August 26, 1867, reciting a consideration of $960'. Plaintiff and her said husband took possession of the forty acres purchased from Thompson, and resided thereon together until his death, which occurred in February, 1880, and plaintiff continued in possession thereof up to the time of the filing of this suit in 1907. The eight-acre tract was sold by the Winklers in 1871, both joining in the deed.

John F. Winkler, by his last will, devised all his real estate, consisting of several tracts at his death, including the forty acres purchased from Thompson, aggregating more than two hundred acres, to his wife, this plaintiff, for life, with remainder to his adopted daughter, Mary Winkler; and all his personal property to his wife, absolutely. Upon his death in 1880, the plaintiff administered upon his estate. She inventoried this forty acres bought from Thompson as a part of her husband’s estate. Upon final settlement, she was ordered to distribute as directed in the last will. Plaintiff subsequently intermarried with one Asa Williams, who died before 1907. In August, 1907, plaintiff filed this suit against the defendant, Margaret L. Keef, who is the child and only heir of the aforesaid Mary Winlder, now deceased.

In her petition plaintiff alleges that the purchase price, $1000, paid by Allison for the forty acres purchased by him, the title to which was in her name, was paid to her said husband, John F. Winkler, as her agent and trustee; that she purchased the forty-eight acres aforesaid from Thompson for the price of $960; that this sum was paid to Thompson by her said husband, as her agent and trustee, out of the funds received by him from the sale of her forty acres to Allison aforesaid; that said forty-eight acres was deeded by the grantors to her said husband without her knowledge or consent, and that she did not know that the deed had been made to him until long after his death; that the title was in his name on the records at his death. She sets out his last will, and the fact of the death of the adopted daughter, and that defendant is the only heir of such daughter. She says that she is the absolute owner of said forty acres so conveyed to her husband, and prays the court to divest the title out of defendant and vest same in plaintiff. This prayer is on the theory that the defendant holds the legal title by descent subject to a life estate in plaintiff.

The answer contains a general denial, alleges ownership in John F. Winkler of the forty acres in controversy, and pleads the Statute of Limitations.

To sustain her case plaintiff introduced evidence of statements made by John F. Winkler concerning this land. She called four witnesses who testified as to their recollection of certain verbal statements made by John F. Winkler at the time of the purchase in 1867, and also subsequent statements made prior to his death in 1880. Some of the alleged statements were made forty years prior to the trial, in 1907, and others twenty-eight years before. Winkler died, as stated, in 1880. James Williams testified that in 1867, when the witness was fifteen years old, he heard a conversation between Winkler and the father of witness, in which Winkler said that he would buy the Thompson land for a home for his wife; that Winkler asked the father of witness whether he thought the Thompson forty acres worth as much as his wife’s forty, and said that he did not want to cheat his wife.

Wm. "Winkler testified that when he was twenty, years old he was working for John F. Winkler after the purchase, in 1867, of the forty acres in controversy, and that John F. Winkler said to him: “I sold' the forty that belonged to my wife and took the money and bought this forty, and I think I made a good deal. I think this forty better than that.”

Wm. Marcum, who also worked for John F. Winkler, testified that he heard him say that he bought this forty with his wife’s money, and that Winkler once said to witness: “Plow on her forty this evening.” When asked what land he referred to, witness said, “A piece of land I suppose she bought afterwards, after he bought this forty.” The witness further said he “understood” that Winkler referred to his wife’s forty. Witness said that this talk was about a year before Winkler died, which would make the conversation twenty-eight years old. He then said that Winklex died about ten years ago — not more than fifteen. In fact, he had been dead twenty-seven years.

Mrs. Mattie Wilson testified that John F. Winkler always called this land Margaret’s forty; that he said it was her forty, and also that he bought it with her money. This witness also said that the conversations were some eight or ten years before the trial.

There was also some testimony to the effect that John F. Winkler had no property of his own of substantial value in 1867. The witnesses testified to sundry conclusions of theirs as to where Winkler got the money and as to who owned the land. But the foregoing is substantially all the testimony competent and material as to declarations by the husband, John F. Winkler.

Plaintiff introduced the various deeds above referred to, also the last will of John F. Winkler.

Defendant introduced the letters of administration granted to plaintiff on the estate of John P. Winkler, together with the inventory and appraisement filed by her, and also her settlements in the probate court.

I. It will be perceived that there is no direct evidence that the $1000 derived from the sale of plaintiff’s forty acres was paid to her husband, nor that he paid for the forty in controversy out of such money, although it is a fair inference that such were the facts. There is no proof a.t all of any contract, agreement or understanding between Winkler and his wife that he should collect and expend this money as her agent. The'deed to her land was dated August 24, 1867. The deed to Winkler for the forty in question was dated August 26,1867. Upon the inference to be drawn from these dates, in close proximity, and upon the verbal testimony of Winkler’s declarations, plaintiff’s case rests. It may be further noted that there is no evidence as to the source from which was derived the money paid for the forty acres conveyed to plaintiff in April, 1866. It does not appear that plaintiff had at that time any money from inheritance or otherwise. She held the title to that forty from April, 1866, to August, 1867.

This transaction occurred in 1867. As the law then stood the husband had a right to reduce to his possession, and to become the absolute owner of, the proceeds of a sale of his wife’s real estate not held by her as a separate estate. If he used the proceeds of her land, it will be assumed that he intended to exercise such right where, as here, he buys other property in his own name, there being no agreement between him and his wife that he takes such property as her agent or trustee. [Modrell v. Riddle, 82 Mo. 31; Smith v. Smith, 201 Mo. 533; Tillman v. Tillman, 50 Mo. 41.] And it will further be presumed to be with her consent. [National Bank v. Fry, 168 Mo. 508; Tillman v. Tillman, supra.].

The ease of Bank v. Nichols, 235 Mo. 401, cited on this point, does not qualify the foregoing proposition. In that case the property of the wife was never reduced to the possession of the husband. He did no more than to join his wife in a receipt for her share of her father’s personal estate, which share was never in fact paid to either her husband o.r herself; but there was conveyed, to him some land which she had agreed to accept in exchange for her interest-in her father’s personalty, and for which exchange she and her husband executed the receipt aforesaid. Furthermore, the husband testified that he never received the deed', and did not consider that he had any substantial ownership in the land.

Y^e do not regard the proximity of the dates of the sale of the land to which plaintiff held title and of the purchase of the forty in her husband’s name as affording a basis for an inference strong enough to overcome the presumption that he intended to convert the money to his own use, and that the wife assented thereto.

We regard recollections of casual remarks from twenty-eight to forty years ago as extremely unreliable. It is perhaps possible for a boy fifteen years old to remember for forty years a casual remark made in his hearing concerning a financial transaction in which he has no interest, but it is not evidence substantial enough to disturb titles to land which have been unassailed during all that time. Testimony as to vague and doubtful statements made in casual conversations by the husband as to the ownership by his wife of the property standing in his name is not, in itself, enough to establish a resulting trust.

It is not the policy of -the law to allow long-settled titles to be easily disturbed. The evidence should be strong enough to • remove all doubt. Furthermore even were we to give full force to all that is testified by the witnesses, we would doubt its sufficiency. The statements imputed to Winkler do not necessarily recognize ownership in the wife. They certainly do not point to any express agreement with her that he should hold the title fox her as her agent or trustee. The record is barren of anything tending to show any such arrangement, or that the wife ever claimed that such relation existed. The views herein expressed are in line with the decisions of this court. [Curd v. Brown, 148 Mo 83; Philpot v. Penn, 91 Mo. 38; King v. Isley, 116 Mo. 155.] In the last cited ease the following rule is cited from a former decision, and affirmed:

“The rule in this court is settled by a uniform line of decisions that parol testimony, in order to accomplish such an object and secure such an end, must be clear, strong and unequivocal; so definite and positive as to leave no room for doubt in the mind of the chancellor as to the existence of such a trust.”

Plaintiff cites Hammons v. Renfrew, 84 Mo. 341, as being “almost identical with the case at bar.” We think counsel misapprehend that case. The court there asserts the proposition that by-the law in force in 1867 the proceeds of the sale of the wife’s land became eo instanti the absolute property of the husband when they came, into his possession, unless by clear and unequivocal acts of the husband the proceeds which so came to him were so held and managed by him as to exclude same from his common law marital rights. Upon the facts in that case, which radically differ from the facts here, the court finds that the husband held the proceeds as trustee for his wife. Other cases cited by plaintiff (Clark v. Clark, 86 Mo. l. c. 122; McCoy v. Hyatt, 80 Mo. 130; Bank v. Fry, 168 Mo. 492; Rice v. Shipley, 159 Mo. 399) are disposed of upon the facts in each case, but in recognition of the principles of law which we have stated above. The question, then, becomes one of fact, and we think the facts in this case fail to establish the claim of plaintiff.

If it was understood and agreed at the time that Yrinkler should act simply as the agent of his wife in these transactions, it is strange that she should wait twenty-seven years after the time when she must have known that he had taken the title, before asserting a claim. She knew when she filed the inventory, in 1880, that the title was in her husband’s name. Why she should let twenty-seven years go by, increasing with time the difficulty of proof it is hard to understand, unless indeed some change in the family relations stimulated this belated claim into activity. We think the case fails for want of proof.

TI. The plaintiff claims that the answer of defendant Keef does not sufficiently present the issue discussed above. No objection was made to the sufficiency of the answer before or during the trial. It is now objected that the general denial therein was not in proper form. This objection comes too late. It would be unfair to treat as fatal an objection, made' for the first time in this court, to the form of pleading, which objection could have been easily met by an amendment in the trial court.

III. What we have said disposes finally of this case, and it therefore becomes unnecessary to discuss other points presented by appellants. The judgment is reversed and the bill dismissed at plaintiff’s cost.

Kennish and Brotvn, JJ., concur.


source: Caselaw Access Project

author: KENNISH, J.

license: Public Domain

text:
    R. F. MUGAN et al. v. NELLIE WHEELER et al., Appellants.
    Division Two,
    March 21, 1912.
    1. APPEAL: Assignment of Errors. If the alleged errors of -the trial court are set out intelligently and in numerical order in appellant’s brief, with the authorities in support of each proposition, Rule 15 of the court, requiring appellant to “separately allege the errors committed 'by the inferior court,” has been sufficiently complied with.
    2. -: Abstract: Motion Called for in Bill: Printed in Record Proper. A motion for a new trial, which the bill of exceptions says was made a part thereof and which further says that the motion is not reprinted as a part of the bill since it is printed under abstract of record proper, if in fact it is so printed, will be considered on appeal. But such method of printing the motion is not approved. Its proper place is in the bill of exceptions.
    8. -: One Exception: Two Motions. Exceptions saved to one order overruling the motion for a new trial and the motion in arrest, preserve for review the action of the court upon both motions.
    4. -: Pleading; Departure: Abandoned Petition Not Preserved. Whether or not the amended petition was a departure from the original petition cannot be considered on appeal, unless the original petition is made a part of the record as a matter of exception.
    5. TRUST ESTATE: Absolute Deed: Pleading: Proof. A petition alleging that the owner of land conveyed it in trust, to be held by the grantee for the grantor, and that thereafter, at the grantor’s request, the said grantee conveyed it in trust to defendant to be held by her for the use of said grantor and his heirs, states a cause of action, without an allegation that such trust was evidenced by some writing. That it was not created by a writing is a matter of defense, or is to be raised by objection to the evidence offered to prove the trust..
    6. -: -: Parol Proof. Deeds absolute and unconditional on their faces cannot be shown by oral evidence to be conveyances in trust. The statute requires an express trust to be evidenced by some writing — which may be either the conveyance itself, or a separate writing.

      Appeal from Greene Circuit Court. — Eon. James T. Neville, Judge.
    Bevebsed.

      Delaney & Delaney for appellants.
    (1) On the evidence the judgment should he for the defendants. The evidence is entirely parol and a trust of the character declared upon cannot he so established. The admission of such evidence is in contra-, vention of Statute of Frauds and of sec. 3416, E. S. 1899' — now sec. 2868, E. S. 1909. There is no trust declared in the deeds nor in any other writing’. Lane v. Eurig, 31 Mo. 75; Cornelius v. Smith, 55 Mo. 528; Mu-lock v. Mulock, 156 Mo. 431; Crawley v. Crafton, 193 Mo. 42.1; Hillman v. Allen, 145 Mo. 638; Church v. Albers, 174 Mo. 331. (2) There can be no recovery hv plaintiffs except upon the theory of an express trust. There is no room for a resulting trust or for a constructive trust. The evidence excludes all presumptions and shows an attempt to prove an express trust. So also the amended petition is a statement of a cause of action bottomed on express trust. Green v. Cates, 73 Mo. 115; Heil v. Heil, 184 Mo. 665; Crawley v. Crafton, 193 Mo. 421. (3) A voluntary trust must he created by the donor himself; it cannot he created by the court. Four requisites must concur to create a voluntary trust: 1st, Sufficient words to create it; 2nd, A definite subject; 3rd, A definite object; 4th, The terms of the trust must he sufficiently declared, clearly, free from doubt, ambiguity and not left to conjecture. All of these elements are lacking in this case. In' re Soulard Estate, 141 Mo. 642.

      Hamlin & Seawall for respondents.
    (1) This cause having been submitted on a demurrer to the evidence, every intendment and presumption is now in favor of tlie judgment, therefore, appellants’ contention that the evidence was not sufficient to establish a resulting’ trust is not well taken. Where there is conflicting’ evidence, the court requires that the evidence to establish a resulting trust should be stronger than in a case where it is submitted on a. demurrer to the evidence. (2) In determining whether this should be considered an express or resulting trust, as the case was submitted on a demurrer to the evidence, every intendment and presumption will be in favor of the idea of a resulting trust. If the appellant wishes to submit the case on the theory that every presumption is against him be cannot complain of that theory on appeal. (3) That this should be considered a resulting trust and that the judgment should be affirmed, we think it shown conclusively: Peacock v. Nelson, 50 Mo. 261; Baumgartner v. Guessfeld, 38 Mo. 37. It is undisputed that this property was paid for by all of these parties, and this case having been submitted on a demurrer to the evidence, that is a conclusive presumption. Shaw v. Shaw. 86 Mo. 598.
   KENNISH, J.

— This is an appeal from a judgment of the circuit court of Greene county in favor of plaintiffs. Defendants appeal. Plaintiffs and defendants are the children and heirs of Patrick Mugan, deceased.

It is alleged in the amended petition that Patrick Mugan died on the —day of November, 1905; that on the —day of ■ — •, 1893, he was the owner of the land in controversy, situated in said county and particularly described in the petition, being a tract of about six acres; that in the year 1893” the said Patrick Mugan conveyed said property to his daughter, Eliza Banfield, one of the plaintiffs herein, in trust, to be held by her for him, and that said Eliza Banfield, at her father’s request, conveyed said propei’ty to her sister, Molly Mugan, one of the defendants, “to be held in trust by tlie said Molly Mugan for tlie use and benefit of said Patrick Mugan and Ms heirs;” that plaintiffs have requested Molly Mugan to convey to them their interest in said property, but that she has refused so to do, etc. The prayer of the petition is that the court divest the said Molly Mugan of the title to said real estate, or decree that she hold's the same in trust for each and all of the plaintiffs and defendants, and that the court order said real estate sold and the proceeds divided as each party’s interest may appear, and for general relief:

I. Eespondents raise two preliminary questions which require attention, before considering the errors assigned by the appellants. ,

(a) It is urged that the appeal should be dismissed for the reason that appellants have failed to comply with Eule 15 of this,court, providing that appellant “shall separately allege the errors committed by the inferior court,” etc. An examination of the appellants’ brief has satisfied us that this objection is not well founded. The brief sets out the alleged errors of the trial court intelligently and in numerical order, with the authorities in support of each proposition, and that is all that is required. [Wallace v. Libby, 231 Mo. 341.]

(b) Eespondents also contend that “the judgment should be affirmed because appellants have not incorporated their motions for a new trial in the bill of exceptions, as printed in the abstract of the record and filed in this court, nor the order of court, if any, filing and overruling same.”

What purports to be the bill of exceptions in the printed abstract consists largely of a recital as to orders, motions and rulings, following which, instead of setting out such order, motion or ruling, there is a note referring to the abstract of the record proper where they may be found, and they do appear on the page of the record proper as stated. As illustrating the condition of the record purporting to be the bill of exceptions, we shall set out only that part referring to the motions for a new trial. It is as follows: “Said motions for new trial and rehearing are in words as follows: (Note: Said motions for new trial are set forth in the bill of exceptions, but as same are printed under abstract of record at pages 15-20, the repetition is omitted here.) ”

This court has many times held that the proper place for all matters of exception, as set forth in the printed abstract of the record filed in this court, is in the bill of exceptions, and not in the record proper. There is no authority for taking what is matter of exception out of its place in the bill where it belongs and transposing it -to the record proper where it does not belong, nor is there any economy in so doing, although it works a great inconvenience to this court. Were this a question of first impression, the sufficiency of this abstract, at least as to the bill of exceptions, would be a matter of grave doubt. However, in the case of Booth v. Railroad, 217 Mo. l. c. 715, upon facts almost identical with those before us, this court said:

“But the counsel say that on page 17 the motion appears to have been copied into the record proper where it had no lawful place. It is true the motion had no lawful place in the record proper and if it was not in fact set out or called for in the bill of exceptions it would avail the appellant nothing. But the abstract of the bill of exceptions signifies that the motion was copied therein, and the reference to another page where it is printed in full was only to save the useless trouble and expense of printing it a second time.”

Under the authority of the Booth case we rule this point against the respondents.

The bill of exceptions does show that the motions for a new trial were filed by the defendants in due time, that they were overruled by the court and that exceptions were saved to the action of the court in overruling them. Exceptions thus saved to one order of the court overruling- two motions will preserve for review the action of the court upon both motions. [Sotham v. Drovers Telegram Co., 239 Mo. 606.]

II. The case was tried upon an amended petition, The original petition therefore became an abandoned pleading, and could only be made a part of the record as a matter of exception. It was not so preserved, and for that reason the question whether the amended petition is a departure from the original cannot be considered. , [Railway Co. v. Bank, 212 Mo. l. c. 517; Forrister v. Sullivan, 231 Mo. 345; Rule 9, Rules of this Court.]

III. The petition alleges that the property was conveyed by the grantor, Patrick Mugan, to Eliza Ban-field, “in trust, to be held by her for him, and that on the ---day of--said Eliza Banfield, at the request of her father, Patrick Mugan, conveyed said property to her sister, Molly Mugan, to be held in trust by the said Molly Mugan for the use and benefit of said Patrick Mugan and his heirs.”

Appellants contend that as there was no allegation of fraud or mistake in’the conveyance, nor that the deeds were intended as mortgages, the petition fails to state a cause of action.

The petition states a cause of action upon the theory that the conveyance created an express trust in the defendant Molly Mugan, and although the statute (sec. 2868, R. S. 1909) provides that such a trust shall be proved only “by some writing signed by the party who is, or shall be, by law, enabled to declare such trusts, or by his last will, in writing,” yet it is not necessary that the petition should allege the existence of such written evidence. The presumption is that the trust pleaded is a vaild one until the contrary appears. That it was not created by written evidence is a matter of defense or to be raised by objection to the evidence offered to prove the trust. [Phillips v. Hardenburg, 181 Mo. l. c. 472.] And that was the course adopted by the defendants at the trial of this case.

IY. The deeds introduced in evidence were absolute and unconditional conveyances on their faces, but they were not for that reason incompetent, for the evidence that an express trust was in fact created by the conveyance may have existed in a separate writing. [Hall v. Bank, 145 Mo. 418.] Here we reach the fatal weakness in plaintiffs’ case. There was no written evidence whatever in support of the allegations of the petition that the conveyances were made in trust, and the oral evidence offered for that purpose was incompetent and should not have been admitted over defendant’s objections. Under the requirements of the statute, only upon written evidence can such a trust be established, and the statute has been uniformly so construed by this court. [Green v. Cates, 73 Mo. 115; Rogers v. Ramey, 137 Mo. 598; Hall v. Small, 178 Mo. 629; Crawley v. Crafton, 193 Mo. 421.]

It follows that the court erred in refusing defendants’ instruction in the nature of a demurrer to the evidence, asked at the close of plaintiffs ’ case, and fox that reason the judgment is reversed.

Ferriss, P. J., and Brown. J. concur.


author: ROT, C. PER CURIAM.

text:
    JOHN M. HANNA v. THE MINNESOTA LIFE INSURANCE COMPANY, Appellant.
    Division Two,
    March 21, 1912.
    1. CONTRACT: Fiduciary Relation: Insurance Company: Agent. A general agent for an insurance company made a contract with the company hy the terms of which all funds received hy the agent were trust funds, not to be used by the agent/but to be remitted to the company. Held, that the relation thus formed was a fiduciary one, which was not altered in practice by the fact that when the agent settled with the company under his previous contract containing the same terms, he failed" to' account for certain first-premium notes and the company allowed him special favors in order to pay for those notes, and that an official of the company soon after the making of the last contract directed the agent to cash all premium notes at once — and this view is strengthened by the fact that after the last contract was made the company wrote the agent a letter calling his attention to the fiduciary clause, censuring him for selling a premium note and failing to reimburse the maker when rejected, and warning him that his conduct was an unlawful conversion of another’s property.
    2. PRINCIPAL AND AGENT: Insurance: Authority to Sell Premium Notes. Authority to a general insurance agent to sell premium notes is not permission to convert the proceeds to the agent’s own use.
    3. EMBEZZLEMENT: Trust Fund: Failure to Account: Evidence. The statute defining embezzlement does not make the failure to account for a trust fund, or a fund received by an agent or officer, an offense, but the essence of the offense is the wrongful conversion of the fund. The failure to account may, however, be material evidence tending to establish the act of conversion.
    4. -: Definition. Embezzlement is the fraudulent and felonious appropriation of another’s property by a person to whom it has been intrusted or into whose hands it has lawfully come.
    5. -: Proof Covering Part Only of Sum Charged. The general agent for an insurance company was prosecuted for embezzling three first-premium notes. He took these notes payable to himself, immediately cashed them, paid the sub-agents their commissions and, in violation of his contract with the company making all funds in his hands fiduciary, converted the remainder to his own use. When the applications with which the three premium notes were taken, were rejected, the sub-agents' refunded to the general agent. The agent asserted upon the trial that before this refunding by the sub-agents he had made a claim against the company for reimbursement for sums advanced on account for sub-agents in other transactions and that therefore the money so refunded to him could be retained and he could not be guilty of embezzlement because the whole amount charged had not been converted. Held, that a prosecution for the embezzlement of a certain'sum can be sustained by showing the embezzlement of any portion of that sum.
    0 -; when Offense is Completed: Efforts to Atone. The offense of embezzlement is complete at the time of conversion and is not tolled by subsequent claims or efforts at atonement.
    7. -: Conversion: Evidence: Criminal Intent. Where in a prosecution for embezzlement the admitted facts show a conversion of part of the items charged before any counterclaim was made or entertained by the defendant, such conversion is a fact from which the jury would be authorized to infer a criminal intent.
    8. MALICIOUS PROSECUTION: Duty of Court and Jury. When the facts in an action for malicious prosecution are undisputed, it is the duty of the court to declare their legal effect; when they are disputed, it is for thé jury to determine the question under proper instructions.
    9 -;■ Reasonable Doubt: Evidence. In no case can an action for malicious prosecution be sustained where there was probable cause. Held, that in this case there was probable cause.
    Appeal from Jackson Circuit Court. — Eon. J. E. Slover, Judge.
    Reversed.

      Warner, Dean, McLeod & Timmonds for appellants.

      Reed, Yates, Mastín é Earvey for respondents.
   ROT, C.

— This action for malicious prosecution was brought in the circuit court of Jackson county, resulting in a judgment for plaintiff for $3500 on the first count and $8500 on the third count, the second count being dismissed by plaintiff. Defendant appeals.

This proceeding is the result of a charge of embezzlement made by the insurance company against plaintiff, who was a member of the firm of Hanna & Redmon, who were the general agents of the company of Kansas City. Redmon was made a party defendant herein, but has been practically ignored as a party defendant by both sides and hereafter, for convenience, unless otherwise necessary, we shall speak of the firm as Hanna, and of the company as the defendant.

The contract, so far as necessary to be stated, was as follows:

This agreement, made this 16th day of January, 1904, between the Minnesota Mutual Life Insurance Company, of St. Paul, Minnesota, first party, hereinafter referred to as the company, and J. M. Hanna and J. B. Redmon, copartners, as Hanna & Redmon, of Kansas City, in the State of Missouri, second party, hereinafter referred to as the agents of the company:
Witnesseth: That the company does hereby appoint the said agents for the purpose of establishing and maintaining an agency in the State of Missouri and in Indian Territory (except the following counties in the State of Missouri, viz.: St. Louis, Jefferson, Ste. Genevieve, Perry, St. Francois, Washington, Crawford, Franklin, Gasconade, Warren, St. Charles, Lincoln, Pike, Audrain, Callaway and Montgomery); the appointment and supervision of local or sub-agents in said territory and of. personally canvassing for applications of insurance' on the lives of persons who shall be satisfactory to the company, and for the purpose of collecting and paying over premiums on such insurance when effected in person or through local or sub-agents and of performing such other duties as may be required by the company in connection therewith. This appointment and its continuance are based on the following terms and conditions, which are agreed to by each party hereto:
First: The said agents shall act exclusively for The Minnesota Mutual Life Insurance Company, so far as to tender it all risks or applications obtained by them or by any local or sub-agents appointed by them. They shall earnestly and faithfully solicit applications for insurance and to this end will cause the territory herein mentioned to be thoroughly and ably canvassed by them and by their local or sub-agents, to be appointed by them as hereinafter provided, for whose fidelity and honesty and indebtedness, if any, to the company they shall be responsible to the company. They shall be governed in the business of their agency strictly by the written and printed instructions which they may receive from time to time from the company, consistent with this agreement and their duties hereunder.
Second: Said agents shall keep accurate and regular books of account, -of- all their local or sub-agents’ transactions, for or on behalf of said company, and shall on or before the 10th day of each month, or oftener, if required, transmit to said company a report in detail embracing every item of insurance done by them, or through or under them by local or sub-agents, up to and including the last day of the preceding month, or period since the last report, showing the balance due the company, which balance must be remitted with their monthly or more frequent reports, to the company, by check or draft drawn to the order of the Minnesota Mutual Life Insurance Company. Said report shall show a list of all new policies remaining on hand, and all policies not delivered and paid for within ninety days from the dates respectively of their receipt, by the agent from the company must be returned to the home office.
Said agents agree that all books of account, documents, vouchers, and other books or papers connected with the business of said company shall be the property of the company and at any and all times to be open to the officers of the company, the manager of agencies and other duly authorized representatives, and be freely exhibited for the purpose of examination and shall be immediately returned to the company upon request.
Third: It is expressly agreed and understood that all moneys or securities received or collected for or on behalf of the company by said agents or by any local or sub-agents appointed by them, shall be held by the agents hereby appointed as a fiduciary trust, and shall not be used by them for any purpose whatever, but shall be remitted to the company as provided above.
Fourth: The said agents have no authority on behalf of the company to make, alter, or discharge any contract or waive forfeitures or receive any moneys due or to become due to said company, except on policies and renewal receipts signed by an officer of the company, sent them for collection, or on other written authority.
They shall have no authority to accept or receipt for any renewal premium for which the regular receipt signed by the secretary or other officer is not then in their possession, nor shall they have any authority to accept any new or renewal premiums past due, otherwise than conditionally upon the approval of the company.
Fifth: Within said territory said agents shall have the right, but by written contract only, to appoint local or sub-agents subject to the approval of the company and to such terms and conditions and to such rules and instructions as the company may establish.
Sixth: In consideration of and conditioned upon the prompt and faithful performance of said agents’ duties hereunder, and of the performance by their local or sub-agents of their duties and services, as herein provided for, the company agrees:
(a) To allow and pay the said agents commissions upon the first year’s premiums paid and collected in cash on policies issued by the company upon applications procured by said agents personally or through their local or sub-agents as follows: Participating policies. On ordinary life, twenty payment life, twenty year endowment, twenty-five year endowment and thirty year endowment, fifteen and twenty year accdmulation policies, 75 per cent. Special commission rates on other forms of policies will be fixed and determined by the company from time to time when necessary.
In addition to the commissions above mentioned, the company will allow and pay said agents a bonus of three and 50-100 dollars ($3.50) on each one thousand dollars of participating insurance, other than term, written and paid for in said territory; said amount to be deducted from the premium before remitting to the company, whenever practicable, or if not so deducted, to be thereafter accounted for and remitted by the company to the agents monthly.

Prior to the 16th day of January, 1904, Ilanua was the general agent of the company at Kansas City and with reference to his settlement of his accounts up to the date of the Hanna & Eedmon agency, Mr. Palmer, -the president of the company, testified, “At the close of the period when the new contract was made, according to the best of my recollection, there were some notes that were not accounted for, and, in order to aid Mr. Hanna in accounting for them, we allowed him a bonus which was not to be paid until his business had been entirely settled for, and bonus was allowed in addition. I do not mean to say Mr. Hanna was guilty of any dishonest practice at all. ’ ’

Many sub-agents were appointed by Hanna. He and Eedmon were both much of the time actively in the field soliciting.

Whenever an application for insurance was obtained, the agent would receive from the applicant the first premium. As a general rule that premium was paid by a note payable to the agent. If Hanna was present the note was made to his order. A receipt for the premium was given the applicant, which contained the following clause: “In case the application shall not be approved, the full amount of such payment to be promptly returned to the applicant. ’ ’ The application after being registered in the Kansas City office, was forwarded with the medical "examination to the home office. If the application wa.s rejected, the Kansas City office was notified, the notice having these words: “If---has given cash or notes in payment of his first premium, kindly reimburse him.”

Hanna testified that he always sold the premium notes which he received as soon as received, without waiting for the action of the home office on the application. When the policy was delivered to the applicant the company’s receipt was given for the first premium which receipt was required to be countersigned by Hanna & Redmon for every policy issued in their territory.

Plaintiff at the trial testified that just after the contract of January 16th was executed, Mr. O’Shaughnessy, representing the company, told him to cash the premium notes as soon as received; and from that plaintiff claimed he had the right to cash the notes and use the money for his own purpose, repaying the company from time to time in the course of business. Mr. 0’Shaughnessy was not a witness; but the following letter was read in evidence and the plaintiff admitted that he received it in the ordinary course of business.

St. Paul, Minn., April 18, 1904.
Messrs. Hanna & Redmon,
514 Century Building, Kansas City, Missouri.
Gentlemen: We have had numerous communications from Mr. Alvin Grafford of Urich, Missouri, since March 2, 1904, and now have received one from his attorney', demanding the' immediate return of the note for $86.76 which he gave Mr. Redmon at the time he took his application.
We have written you four or five times on the subject, requesting that the matter be disposed of without further delay, and have promised Mr. Grafford that it would be. I am informed that he gave Mr. Redmon a note when the application was taken, and that the note has been discounted at one of the local banks. The application was rejected February 23d and you were promptly notified. The note and the proceeds thereof were received in trust, and certainly could not become the property of the company nor of the agent in whole or any part, until the application was approved and the insurance placed in force. The application having been rejected it followed that neither the note nor the proceeds thereof could ever become the property of the agent or the company, but remains the property of Mr. Grafford and should havé been returned to him at once. Allow me to call your attention to the third clause of your contract:
“It is expressly agreed and understood that all moneys or securities received or collected, for or on behalf of the company by said agents or by any local or sub-agent appointed by them, shall be held by the agents hereby appointed as a fiduciary trust, and shall not be used by them for any purpose whatever, but shall be remitted to the company as above provided.”
All of the communications of the company on the subject have been absolutely ignored by you, so far as any reference to the same having been made in the letters addressed by you to the home office. You must realize that no company can maintain its reputation and standing before the public, or with the insurance department, and transact business as you have done it in this case, and I am informed by the assistant secretary, that there are two or three other similar cases concerning which he is in correspondence, and you must realize or are liable to, that your failure to take up the note and return it, is hot an ordinary breach of contract, but operates as an unlawful conversion of another’s property. This matter must have immediate attention, and I trust it will not be necessary to address any more letters to you on the subject.
Very truly yours,
T. R. Palmee, President.

The plaintiff also admitted getting the following letter:

St. Paul, Minn., July 5, 1904.
Messes. Hanna & Redmon,
514 Century Building, Kansas City, Mo.
Gentlemen: This morning we received from superintendent of insurance of Missouri, a letter, copy of which is enclosed, also copy of letter from Mr. Crews which insurance superintendent forwarded for oúr perusal and I likewise enclose a copy of my reply to the insurance department. We have had two or three cases called to our attention where premiums on applications taken by your agents have not been returned within a reasonable time after your receiving notice of rejection. Is it not possible to avoid these unfortunate conditions which result in complaints against the company? The company has always stood well with the Missouri insurance department and we do not wish to have its good name destroyed if by any possible efforts on our part and that of the company’s agents it can be avoided.
Yours very truly,
T. R. Palmee, President.

The amount of business done through the Kansas City office was very satisfactory, but there were complaints from the company as to the accuracy of the reports sent in and as to alleged failure to return premiums to the applicants when applications were rejected or postponed.

On August 19th the company, wrote the Kansas City office objecting to some items of office expense, but congratulating them on the amount of business done. About that time Mr. 0’Shaughnessy called on Iianna and discussed the situation with him. On August 31st plaintiff sent in his resignation to take effect September 30th, which contained the following:

“I herewith hand you my resignation to take effect September 30, 1904. Under the thirty day clause in the contract, we will be able to clean our business all up by that time, with what we have here on the books by way of margins and bonuses, and what will come in within the next thirty days and what we have due us from our contract. We are advised by our counsel that the contracts with the agents are the contracts of the company, and not with us, and you are holding the contracts §md you certainly know what to do. We will gladly furnish you with all the information in regard to the several amounts due from these parties, but I presume you have this o,r memorandums.
“With kindest regards, I wish to remain,
“Tours,
“J. M. Hanna.”

Following that resignation, the eompany sent its representative, Mr. Hageman, to make a settlement with various persons whose applications had been rejected and who had paid premiums to Hanna or the sub-agents, and Mr. Hageman about December 13th presented to Hanna a statement of the amounts so paid by it, a summary which is as follows:

“Item 1. Ellis note May 27 ■ $155.30
“ 3. Short note July 15 ' 86.73
“ 3. Short note July 15 86.73
“ 4. Clarkson note June 22 129:23
“ 5. O. T. Baffrey . 65.98
“ 6. Am’ts paid Hanna by sub-agents 215.08
“ 7. Shortage in report of July 10 45.60
“ 8. Net prems. $54. Perry pol. $8.70 62.70
“$835.87”

The second, third and fourth items of the above statement are the ones on which the criminal prosecution complained of were based.

The dates shown in the above items were the dates of the applications in those respective cases. The plaintiff on the trial testified that he took the notes mentioned in the first four items of that statement payable to himself and immediately cashed them at the local banks, paid the sub-agents half the commissions (37^0%) less expenses, and that he made no entry on any book of such items and converted to his own use all except what he paid sub-agents as their commission, and that on the rejection of the applications the sub-agents refunded to him the amounts paid them, which he never accounted for to the company. It should be stated that plaintiff stated in his testimony that he had accounted to the company for $3.57 of the Plant item. .

He also admitted liability for a portion of the other items in defendant’s statement.

At the trial of this cause the plaintiff claimed he was not responsible to the company for the above amounts for the reason that the company owed him for amounts which he had paid to applicants who had been rejected by the company in cases where the premiums had been paid by the applicants to the sub-agents buf had never been received by Hanna, and also where Hanna had paid to the company “net” premiums collected by sub-agents and not received by Planna. The “net” premium was what was due the company after taking out the commission. The amounts claimed to be so paid and the names of the sub-agents for whom paid are shown in his statement as follows:

“Kansas City, Mo., October 3, 1904.
“Amount of money paid by J. M- Hanna to agents for the Minnesota Mutual Life Insurance Company:
John M. Woods, Agent $100.00
Wm. T'. Johnson, “ 55-.00
W. H. Barnes, “ ' 135.00
G. W. Scott, — “ 65.00
J. R. Steele, “ 40.00
C. J. Gilman, “ ' 24.00
H. A. Bulkley, ■ “ 40.00
R. P. Gwinn, “ 50.00
W. IT. Gephart, “ 40.00
“Total, $549.00”

As beariug on the question of the bona fides of that claim, the plaintiff testified at the trial that he had consulted Mr. Bremmerman, a lawyer, who advised him that he was not liable for sub-agents, and that in the settlement of his accounts he could offset the amounts so paid' by him against the amounts claimed by the company, and that he told Mr. O’Shaughnessy so in August. On the other hand, he testified as follows:

“Q. I will ask you to tell the jury what statement if any you made to Mr. O’Shaughnessy in the conversation that you had with him, in reference to any claim you made on the company on account of these matters of money paid out by you? A. Up to that time I had made no claim against the company for these amounts, and I told Mr. O’Shaughnessy I was getting tired of paying out for rejections to sub-agents, and that Eedmon wouldn’t stand half the loss — that he was always very free with the profits coming in but not. with the losses coming in. He said Eedmon ought to stand his share of the losses, and I had a talk with Eedmon about it while Mr. 0 ’Shaughnessy was in the city, and Eedmon said any money paid out by rejections is not mine.
“A. Well, I told Mr. 0’Shaughnessy that Eedmon refused to pay any part of the losses sustained by the firm, and he agreed with me that he ought to pay his share of the losses. These men that had been rejected would draw sight drafts on the firm of Hanna '& Eedmon, and I was working most of the time, and when I would come in they would be presented to me and if I had the money in the bank I would pay them, expecting an offset on account with my partner when the profits would come in, but he always managed to get his profits before there was any chance so far as an accounting, and I got tired of that kind of business. ’ ’

He also testified as follows:

“Q. Now, then, I understand that after you took this advice — when was it you took this advice of Mr. Bremmerman? A. I presume it must have been July or possibly August; I remember that Mr. Hamilton was away on a vacation, it must have been in July.
“Q. Long before Mr. 0’Shaughnessy had the conversation with him to which you have adverted in your testimony? A. Yes, sir.
“Q. Was 'Mr. Bremmerman as attorney to you consulted in the matter ? A. I think so.
“Q. Or in any of the matters connected with this business ? A. No, I think Mr. Hamilton and he talked the matter over.
‘ ‘ Q. Touching your .responsibility for the conduct of your sub-agents? A. I think not that particular clause in the contract.
“Q. Now, at the time you consulted Mr. Bremmerman I understood you to say that you were then advised that you were not responsible for moneys paid by applicants to sub-agents in case the application was rejected and the applicant became entitled to have his or their money back; am I right? A. I think so.
“Q. Then after this consultation in July or August, did you ever pay back any claims to applicants of that character? A. I think I did; I think I paid them up until the time I severed my connection with the company.
“Q. So then you did not follow the advice of your attorney? A. Not necessarily, no, sir.
“Q. Then after you got this advice as you claim you got, you did recognize claims by applicants for the return of money they had paid your sub-agents? A. I think I did.
“Q. In case where you had not received the money or any part of it from the sub-agents? A. There was sometimes eases of that kind.
“Q. So then you continued, to recognize the responsibility for the conduct of your sub-agents, in these rejections, after you received this advice just as you did before you received the advice? A. I continued to pay those until I found out my partner would not stand for his half of the loss and then I refused to pay.
“Q. You paid until you got tired? A. Yes, sir.
“Q. Until the burden became too great for you to bear according to your opinion what you ought to bear; am-I right? A. Yes, sir.
“Q. And then after you left the company you continued to recognize your responsibility for the claims arising on account of rejections for moneys paid by applicants to your sub-agents during the time you were connected with the business, didn’t you? A. I cannot tell you the date I ceased to recognize my responsibility : Mr. 0’Shaughnessy sent me a number of policies over to my office.”

On August 26th Hanna wrote a letter to his firm in which he said, “I guess we will be able to care for all the kicks that come if we keep up the gait we are on.”

With reference to that letter he testified as follows :

“Q. And these kicks which you referred to were demands made by applicants who had paid by cash or note and were rejected, weren’t they? A. I think that bad reference to the little complaints made by the company to us direct.
“Q. Little complaints about what? A. About us not going down in our pockets and paying the rejections for the sub-agents.
“Q. That referred to demands made on you for rejections on account of sub-agents applications? A. Yes, sir.
1 ‘ Q. And you then expressed the opinion this way August 26th? A. Yes, sir.
“Q. Five days before you wrote your resignation? A. Yes, sir, v •
“Q. And you were then of the opinion that if the business kept up the gait you were going, you would be able to pay the demands? A. Yes, sir.”

On September 6th Hanna was working for another company and wrote Redmon to come to Pattonsburg, saying among other things, “You and I can. pick up enough money to pay everything and have some besides. ” With reference to that letter he testified:

“Q. What do you refer to by this statement that you and he can pick up enough money to pay everything and have some besides? A. To pay these claims, these rejected requests of the Minnesota Mutual Life Insurance Company. ' .
“Q. The copartnership at that time was behind on those rejections? A. Yes, sir.
“Q. And it was your idea if you and Redmon could get this money which you refer to, as the easiest you ever saw, up there, that the firm of TIanna & Redmon might be able to pay bach these moneys, yóur rejected requests? A. Yes, sir, exactly what I meant.
“Q. And these very rejected requests included Clarkson, Payne, Ellis and Short? A. Yes, sir, those were the ones I had.
“Q. The four we talked of a while ago? A. Yes, sir.
“Q. At that time you were short and unable to pay? A. I never denied responsibility for the claims.
“ Q. You knew you were short then? A. Yes, sir.
“Q. And that is the reason you asked permission to resign? A. Yes, sir.
“Q. Because you were short? A. I had paid off many of my payments.”

Mr. Bremmerman, who, according to plaintiff’s testimony, was consulted by Hanna, and advised Hanna that he could offset the amounts paid by him on account of sub-agents against what was due him from the company, did not testify in the cause.

Mr. Tolle, a lawyer representing the plaintiff, wrote a letter to the company, which contained the following: “Oct. 17, 1904.

“St. Paul, Minn., Oct. 17, 1904.
“The Minnesota Mutual Life Ins. Co.,
“Gentlemen: Mr. Rosenberger, attorney-at-law, Kansas Oity, Mo., advised me today that your Mr. O’Shaughnessy has employed him to collect and furnish the local prosecuting attorney sufficient or the necessary data to convict J. M. Hanna, my client, and one of your former managers, on a charge of converting the company’s money to Ms own use in the sum of about $800; and also one Johnson on a similar charge, in the sunroof about $700.
“In reference to this matter, in so far as Mr. Hanna is concerned, I beg to advise that my understanding- of the matter is that Mr. Hanna is entitled to certain moneys to be paid to him from-the Minnesota Mutual Life Insurance Co. on account of certain life insurance policies solicited and secured by him for the company upon which he has not received his commission, but that the. same are now in the hands of the company’s cashier and one Mr. Redmon, and that if Mr. Hanna is indebted to the company, such indebtedness arose, out of his contractual relations with the company, which indebtedness, if any there be over and above his claim against the company, he is able, ready and willing to pay.”

In that letter no mention was made of any claim on account of money paid for sub-agents.

Mr. Tolle was a witness in the case. He testified among other things as follows:

“Q. Just what was that advice that you notified Hageman of, in Hanna’s presence — that you gave? A. As near as I can remember the advice was that we wouldn’t permit Mr. Hanna to pay the amount claimed against sub-agents for the reason that we considered that the sub-agents were not sub-agents of Hanna, but direct employees and agents of the company.
“Q. That of course was on the theory that Mr. Hanna didn’t have the money from the sub-agents that that advice was given? A. The effect of that was not discussed so far as I was concerned.
“Q. It would make a vast difference in your opinion, would it not? A. I don’t know that it would, because I haven’t distinctly in mind all the circumstances that led up to the conversation or what the exact conversation was.
“Q. Was it not their claim that one sub-agent named W. P. Johnson, had on account of one Hiles, who lives at Holden, in Missouri, collected $102.80, on an application that had been rejected, and gave Mr. Hanna $41.12 of that money, and that Planna had the money and that the applicant wanted it back and the company had to pay it back? A. No, sir.
“Q. That didn’t come out — do I understand you to say that in such a case it would have made no difference in your advice whether or not ITanna had got his share of the commission and kept it, and the application rejected and the man wanted it back, and the company’s share, too. Did you take the position that he was entitled to keep that money? A. My advice at that time was made on specific facts I had before me, and not having these facts now, I don’t know how 1 can answer your question satisfactorily.
“Q. What facts was it you had? A. I don’t know just the facts that were presented at that time, if at all, and discussed at that time, but my opinion was formed at that time and I don’t remember at thisr time just exactly what the fact was, or what the definite advice I gave my client was, except generally I refused to permit him to pay money that was due the company1 from sub-agents.
“Q. Now, to refresh your recollection, you are very certain, axe you not, that you didn’t give any such advice in the ease where Hanna had in fact obtained the money belonging to the company and his share of the commission from the sub-agent? A. That state of facts wasn’t submitted to me at that time. The only answer I can make is, no such proposition came up, and no such advice was given, unless it was given on specific facts, and not having those facts before me at this time, I don’t remember just what the advice was.”

It will thus be seen that he does not in that evidence discuss the liability of the company to plaintiff for sums paid by plaintiff on account of sub-agents, but confines himself to a denial of plaintiff’s liability for such items as had not yet been paid by him. It will be noted that Mr. Tolle did not distinguish between a ease where the sub-agent had paid to Hanna and those cases where Hanna had not received the money.

Among the instructions, the jury were told that under the agency contract the company wa,s not liable to Hanna on account of any money paid by him to discharge any liability of sub-agents, or liability arising from acts of sub-agents, and also that there was no evidence to show that the company owed Hanna at the date of his conference with Hageman or thereafter, or that it was indebted to him, at the time when he received the Ellis, Plank, Clarkson and Short notes, and that Hanna had no right for his own purposes to sell those notes, and had no right to usé any part of the proceeds of those notes for his own purposes. The court also instructed that all notes and money received by plaintiff for the company, whether by himself or through sub-agents, were held by him as a fiduciary trust.

The evidence for the plaintiff showed that the criminal prosecutions were carried on at the suggestion of the defendant, and that the defendant threatened the plaintiff with prosecution unless he paid the full amount demanded.

It was admitted on the trial that the fifth item in defendant’s statement, known as the Baffrey item, had never been paid by the company and that plaintiff held the Baffrey note.

Plaintiff’s evidence tended to show that he expressed a willingness to pay whatever should be found clue from him.

The foregoing statement is of facts concedéd by the plaintiff. We have not undertaken to present the defendant’s contention as to the facts.

I. Counsel for respondent in their brief say, “It is apparent, we say, that there never was any thought between the -company and Hanna that their relations were of a fiduciary character, or that the monetary matters between them were simply matters of accounting to be settled from time to time, until after Hanna left the service of the company and other reasons intervened, bringing' about a change of attitude.”

The trial court found against them on that proposition, and so do we. It is true that when he settled up on his first contract he failed to account for some notes that had come into his possession under a contract of agency in which were the same terms as in the last contract of agency; and the company permitted him special favors in order to enable him to pay for those notes. But that was no authority for him to repeat the offense, especially when the new contract contained the clause^making all funds received by plaintiff a trust fund not to be used by the agents for any purpose whatever, but to be remitted to the company. The plaintiff claims that right after the contract of January 16th, 0’Shaughnessy directed him to sell all notes at once. Even if that be true, an authority to an agent to sell is not permission to convert the proceeds to the agent’s own use. To make the matter all the stronger, the company on April 18, 1904, wrote plaintiff a letter calling his attention to the fact that he had sold a note and failed to reimburse the party who was entitled to it. That letter called plaintiff’s attention specially to the clause in the contract making those notes a fiduciary trust and roundly censured him for not attending to it, and told him that his conduct was “an unlawful conversion of another’s property.”

II. In State v. Mispagel, 207 Mo. 1. c. 580; it was held: “It must, however, be observed that our statute does ‘not make a failure to account for a trust fund, or a fund received by an agent or officer, an offense, but the essence of the offense is the wrongful conversion of the fund; and while failure to account for such fund mky constitute very material evidence tending to establish the act of conversion, yet the failure to account by no means constitutes the offense of embezzlement of the fund.”

“Embezzlement is the fraudulent and felonious appropriation of another’s property by a person to whom it has been entrusted or into whose hands it has lawfully come.” [State v. Casey, 207 Mo. l. c. 11.]

It was held in State v. Missing, 187 Mo. 96, that a prosecution for embezzlement of a certain sum could be sustained by showing the embezzlement of any portion of that sum. It is so provided as to money or notes in Revised Statutes 1899, section 2581.

Plaintiff testified that up to the time of his talk with Mr. 0’Shaughnessy about the middle of August he had made no claim against the company on account of money paid out for sub-agents.

He further testified that when he wrote on September 6th to Redmon, saying, “You and I can pick up enough money to pay everything and have some besides,” he meant that they could pick up enough to pay the Clarkson, Plant, Ellis and Short items. That he knew he was -short, and for that reason asked permission to resign. It is thus seen that he made no claim for reimbursements on account of sub-agents until the middle of August when he spoke of resigning. The items which he was charged with embezzling came into his hands from a month to two months before his talk with O’Shaughnessy and before any claim made by him. Instead of taldng premium notes payable to the company, he took them payable to himself, immediately cashed them, making no entry on the books, and used the money for his own purposes, except what he paid sub-agents, and that was refunded to him and spent by him. Even if the sub-agents did not refund until after plaintiff claimed the right to hold it, that part which had been converted by him before he made such claim was not affected by such claim.

All authorities hold that the offense of embezzlement is complete at the time of the conversion, and is not tolled by subsequent claims or efforts at atonement.

We, accordingly, refrain from passing on the question of the good faith of plaintiff’s claim to offset payments to sub-agents.

The admitted facts show a conversion of part of those items before any such claim was made or entertained in his own mind by the plaintiff. Such conversion was a fact from which the jury in the criminal prosecution would be authorized to infer the criminal intent. [State v. Lentz, 184 Mo. l. c. 239.]

There is no evidence in this cause to rebut such inference.

“When the facts are undisputed, it is the duty of the court to declare their legal effect; when they are disputed, it is for the jury to determine the question under proper instructions from the court.” [Carp v. Insurance Co., 203 Mo. l. c. 351.]

We hold that -there was probable cause for the prosecution. In no case can an action for malicious prosecution be sustained where there was probable cause. [Stubbs v. Mulholland, 168 Mo. l. c. 74.]

We find nothing in the case to indicate that on another trial the plaintiff could show a cause of action, hence we reverse the case without remanding it.

Blair, G., concurs.

PER CURIAM.

— The foregoing opinion of Rot, C., is adopted as the opinion of the court.

All the judges concur.