author: SMALL, C. PER CURIAM:

text:
    MRS. W. B. HUNT, Appellant, v. W. E. SANDERS.
    Division One,
    June 6, 1921.
    1. NEGOTIABLE NOTE: Seller: Warranty. Under the Negotiable Instrument Law, and at common law before that statute was enacted, any person selling a negotiable instrument, whether the owner, or the agent of an undisclosed principal, represents and warrants the genuineness of the signature thereto, although the seller’s name does not appear thereon.
    2. -: -: -: Forgery. In an action to recover the amount of forged notes sold to plaintiff, an instruction telling the jury that the mere fact that defendant sold to the plaintiff forged notes and deeds of trust is not sufficient to warrant the jury in finding against defendant, is erroneous, for such is not the law, but the very reverse of the law. If there are no other facts in the case than that the notes and deeds of trust were forgeries and that defendant sold them to plaintiff, the defendant, under the statute (Sec. 10035, R. S. 1909) and at common law, is liable for the amount of the notes.
    3. -: -: Express and Implied Warranty: Relying on Representations. Where plaintiff does.not attempt to submit his case to the jury as on an express warranty, but only on an implied 288 Mo. — 22 warranty, an instruction for defendant telling the jury that it was immaterial that plaintiff relied upon defendant’s representations, or that he had no attorney to examine the forged notes sold to him hy defendant, which latter fact was withdrawn from their consideration, is not erroneous.
    4. -: Despoiling Paper: Presumption: Instruction. Wilfully despoiling a document will justify a presumption of law against the despoiler, that the contents of the document were not as stated by him. But such rule has no application where the document destroyed was a written opinion by an attorney attached to an abstract which simply referred to the title, and the only dispute between the parties was whether said opinions were addressed to the defendant or his undisclosed principal, and none as to their contents. Under such circumstances, the instruction should not tell the jury that the presumption of law is that if such opinions • were produced in evidence they would be against the interest of plaintiff, but if any instruction at all is given it should be limited to creating a presumption that the opinions were addressed to the principal, as claimed by defendant. But where the evidence shows that the document was not wilfully destroyed to suppress evidence, it is error to declare in an instruction that there is any presumption of law in reference thereto. Presumptions of law disappear when facts and circumstances appear from which conflicting inferences may arise.
    5. —--: Burden of Proof: Instruction. Where nothing unnecessary to be proven is stated in the other instructions, it is not error to instruct the jury that “the burden of proof is upon the plaintiff to prove all the facts necessary to a verdict in his favor, as defined in these instructions.”
    6. -: Defendant’s Knowledge of Forgery. Where defendant is sued for the amount of forged notes sold by him to plaintiff, it is error to permit defendant to testify that he did not know they were forged for some time after plaintiff purchased them, or that his undisclosed principal was or had been dealing in forged paper. Whether defendant knew that the notes were forged, or that his principal was dealing in forged paper, is wholly irrelevant and immaterial, where he sold the notes to plaintiff, and the petition in no wise calls his innocence or good faith in question.
    Appeal from Jasper Circuit Court. — Son. Grant Emerson, Judge.
    Reversed and remanded.

      H. S. Miller for appellant.
    (1) Instruction 8, requested by the.plaintiff and.refused by the court, properly declared the law as held in Thompson v. McCullough, 31 Mo. 224, and many decisions following. In fact, Sec. 851, R. S. 1919, is to the same effect, and we fail to understand why said instruction was refused. It was admitted in this case that the signatures were forged. It is not necessary for the plaintiff to show that the defendant forged the notes and deed of trust, in order to recover. It is not even necessary for the plaintiff to show that the defendant knew that the notes and deeds of trust were forged at the time they were negotiated. The law is that when a person sells a note as owner or agent for an undisclosed principal, he guarantees and warrants the signatures on the notes to be genuine regardless. of what the facts may be as to forgeries or otherwise. Stewart v. Sparkman, 75 Mo. App. 109; Kinlen v. Street Ry. Co., 216 Mo. 163; McRue v. Railroad, 109 Mo. 582; Jackson v. Railroad, 29 Mo. App. 495; Hannah v. Bayler, 27 Mo. App. 302; Meredith v. Wilkinson, 31 Mo. App. 1; Sawyer v. Drake, 34 Mo. App. 472. (2) Instruction B'given at the instance and request of the defendant is clearly erroneous. If the evidence shows that defendant Sanders sold plaintiff the notes and deeds of trust in controversy, and that they were forged, then plaintiff makes out a prima-facie case. The burden of proof is not on plaintiff to show that the defendant was acting as agent for Wilgus. If the defendant was acting as agent for Wilgus, that is a matter of defense and no part of plaintiff’s cause of action. Thompson v. McCullough, 31 Mo. 224; Sec. 851, R. S. 1919. Said section of the statutes covers this whole ease, and clearly brands said Instruction B as erroneous. (3) Instruction C given by the court at the instance and request of the defendant, is not only erroneous but is also vicious. Some of the documents destroyed were the opinions given by Mr. Dewey as to the title of the land conveyed by the mortgages in question. The only evidence on this proposition is the evidence of the husband of plaintiff to the effect that he destroyed these opinions shortly after he got the loans and before he knew that the notes and deeds of trust were forgeries. There is no evidence to the contrary. As a matter of course, if Mr. Hunt knew nothing of the forgery at the time he‘destroyed the opinions, there would be no call for said instruction. Certainly a presumption could not arise against the interest of an individual in a matter of this kind unless he knew the facts. Said instruction is entirely too sweeping and vicious and is not based upon the law and the facts in this case, and is not justified from any viewpoint. In any event the documents destroyed should be material documents. The word material appears no-, where in the instruction. (4) Instruction D is wrong and ought to have been refused. The main issue in this case was as to whether or not the defendant sold the notes to plaintiff as owner or as agent for an undisclosed principal. There is no dispute but that the defendant negotiated the loans. The defendant himself admits that much. Said Instruction D practically cuts off all argument as to what the defendant Sanders may have said or told plaintiff or her husband at the time of the transactions. Clearly .what the defendant Sanders may have said at the time of the transactions and at the time he delivered the notes to the plaintiff and received the checks therefor, is evidence, even though this suit is not based on a special warranty on the part of the defendant. (5) Instruction E, which is an instruction on the burden of proof, is erroneous. Thompson v. McCullough, 31 Mo. 224. (6) The court erred in permitting defendant to testify as to when he ascertained that Wilgus was engaged in the business of selling forged notes and deeds of trust. This evidence is wholly immaterial and yet highly prejudicial.

      B. M. Sheppard for respondent.
    (1) The appellant’s next contention is that the court erred in giving Instruction B. This instruction told the jury that the mere fact that defendant sold the notes and deeds of trust in controversy to the plaintiff and that said notes were forgeries and therefore worthless was not sufficient to warrant the jury in finding the issues against the defendant. This instruction was in accord with the theory upon which the plaintiff tried this case and the instructions given on behalf of the plaintiff. Plaintiff was claiming that defendant owned the notes or that he- sold them as the agent of an undisclosed principal. Plaintiff’s petition had alleged a warranty upon the part of the plaintiff which could Lave been established either by proving an expressed warranty, or an implied warranty. Plaintiff’s evidence discloses that there was an express warranty. This was denied by the defendant, defendant asserting that he had told plaintiff that he was selling the notes for Wilgus. Under this state of the record it was clearly necessary for the jury to find that the defendant sold the notes in question as owner or that he sold them as the agent of an undisclosed principal. These two phases of the case were covered by plaintiff’s instructions, which required the jury to find that the defendant sold these notes to the plaintiff as owner or as the agent of an undisclosed principal. It was necessary for the jury to find that Sanders was either acting for himself or that he was acting for an undisclosed principal, and, all the facts having been disclosed, there was not any room for any presumption arising from the mere fact of sale. If there had not been any evidence as to what was said and done at the time of the sale there might be some merit in plaintiff’s contention. But where all the facts appear, there is not any room for presumptions. Brannoek v. Jaynes, 193 S. W. 55. (2) The evidence shows that the attorney’s opinion in question was of vital importance, because if, as plaintiff contends, they were addressed to the defendant Sanders, that would have been almost conclusive proof that Sanders was the owner of the notes; upon the other hand, if the opinion respecting the title were addressed to Wilgus, this was at least a circumstance to show that Wilgus and not Sanders was the owner of the notes. Plaintiff had voluntarily-destroyed these letters. Under all the authorities, Instruction C under this record was a proper instruction. Barker v. Pub. Co., 152 Mo. App. 717; Pomeroy v. Benton, 77 Mo. 87; Tracy v. Buchanan, 167 Mo. App. 438; Allomong v. People, 75 Mo. App. 280; Dooley v. 'Greening, 201 Mo. 343. (3) Instruction D was a proper instruction. The issues were whether or not there was an expressed or implied warranty by the defendant. The question as to whether or not the plaintiff or her husband relied upon defendant Sanders did not enter into the case. If Sanders sold the paper either as the owner or as agent for an undisclosed principal, he warranted' the genuineness thereof, and the question as to whether or not the plaintiff relied upon his statement is 'immaterial. This instruction does not withdraw from the jury statements made by defendant' as claimed by the appellant. This instruction simply told the jury that the question as to whether or not the plaintiff relied upon statements made by the defendant were immaterial. The latter part of the instruction withdrew from the jury the consideration of the evidence that the plaintiff did not have an attorney, for this question was wholly irrelevant to the issues in this case. The fact that plaintiff had or did not have an attorney did not prove or tend to prove or disprove the claim that defendant sold the note as owner or agent of an undisclosed principal. (4) The burden of proof is always upon the plaintiff. Instruction E is the ordinary instruction upon the burden of proof. Stofer v. Dunham, 208 S. W. 641. (5) It was certainly material in this case to know whether or not Sanders knew prior to the sale of the notes to the plaintiff that Wilgus was dealing in forged notes. It was perfectly proper, therefore, to show that he did not know Wilgus was engaged in the business of selling forged and duplicate notes until a long time after this transaction. The only two controverted issues in this case are whether or not the plaintiff sold the notes in question as the owner or as the agent of an undisclosed principal.
   SMALL, C.

Appeal from the Circuit Court of Jasper County.

The plaintiff sued the defendant to recover the amount she paid him for certain forged negotiable notes, purporting to be secured by certain deeds of trust, also forgeries, which slie claims defendant sold her, and which notes and mortgages the petition alleges, “purported to be and what defendant then warranted to be, and plaintiff' relying on such warranty believed to be, good” and valid securities, but which were forgeries, and plaintiff lost her entire investment.

There were five counts in the petition, each arising out of the purchase of one of such notes.

The answer was a general denial.

That the notes and deeds of trust were forgeries was not seriously contested by defendant at the trial.

The plaintiff’s evidence tended to prove the allegations in the petition, and to show that the plaintiff herself took no part in the purchase of the notes, but that her husband purchased them from the defendant, representing plaintiff as her agent.

Plaintiff’s husband testified: That defendant showed him the real estate, which was all in the City of Joplin, by which the notes purchased purported to be secured by deeds of trust, and that witness said to defendant before he purchased the notes that he did not know whether the papers were all right or not, and that if defendant knew they were all right he would take the loans, but if they were not, he did not want them. That defendant said, “I know the papers are absolutely good and that you [plaintiff’s husband] need not be worried a moment about it.” Thereupon, and relying upon defendant’s statement, the plaintiff’s husband gave the defendant checks payable to defendant for the full amount of the notes, and received the notes and deeds of trust and abstract of the property from the defendant. That defendant said nothing about representing A. B. Wilgus, Jr. That witness asked defendant whether he had better get an attorney to examine the papers,. and he said it was not necessary, they were absolutely good. The notes and deeds of trust purported to be made by different parties to the order of different parties, including two to said Wilgus, and the notes not made to him purported to be indorsed by the makers without recourse, and all the notes were indorsed in blank by said Wilgus, without recourse.

There was an opinion of an attorney attached to each abstract, which plaintiff’s husband said was addressed to said defendant, but which defendant said was addressed to said Wilgus. This opinion plaintiff’s husband stated he destroyed long before the suit was brought and before the forgeries were known, thinking it of no further consequence. The evidence of both parties tended to show that said opinions simply referred to the title to the real estate; and said nothing about the genuineness of the notes or deeds of trust.

The defendant’s testimony tended to contradict the plaintiff’s in all essential particulars, and to show that he fully informed the plaintiff’s husband, before he purchased the notes, that said Wilgus was the owner, and that he, defendant, simply acted as agent for said Wilgus in selling and receiving the purchase money therefor. That defendant was not such owner and was in fact only such agent. Defendant’s evidence also tended to prove that defendant did not know, and had no reason to know or presume the -notes and mortgages were forgeries, or were not genuine papers owned by said Wilgus, until after purchase by plaintiff. To this testimony plaintiff objected and excepted. Defendant also testified that he made no statement, representations or warranties whatever concerning them when plaintiff’s husband purchased and paid for them. That said Wilgus himself took part in the transactions with plaintiff’s husband and delivered the notes in one or more instances himself.

The court instructed the jury as follows' at the request of the plaintiff, on the first count:

“1. The court instructs the jury that if you find and believe from the evidence in this case that the defendant, - as owner, sold to plaintiff a certain note dated June 23, 1914, for the principal sum of $1,500, purporting to have been signed by Alvin H. Schmidt and Lola E.. Schmidt, and which said note purported to have been secured by a deed of trust upon lot numbered eighty in Schifferdecker’s Second Addition to the City of Joplin, and that said note and deed of trust are forgeries, then you will find the issues in favor of the plaintiff, on the first count of plaintiff’s petition, and assess her damages at the sum paid for said note, not exceeding the sum of $1,510, with interest thereon at the rate of six per cent per annum from date of demand therefor from defendant, if you find there was a demand, and if you find there was no demand, then fr-om the date of filing suit,, to-wit, December 20, 1918.”

Similar instructions were given applying to each of the other counts of the petition; The following general instructions applying to all counts in the petition, were given for plaintiff:

“6. The court instructs the jury that even though the defendant was not the owner of the notes and deeds of trust in question or any of them at the time plaintiff through her agent, W. B. Hunt, purchased the same or any one of them, if you find plaintiff did purchase the same or any one of them, from the defendant, and that the defendant was acting as the agent for A. B. Wilgus, Jr., yet if the evidence shows that defendant failed to tell or disclose to plaintiff’s agent at or prior to the time of such purchase that he was acting as the agent for A. B. -Wilgus, Jr., or failed in any manner to disclose to the plaintiff’s agent that he was not the owner of the notes and deeds of trust mentioned in the evidence or that said notes and deeds of trust or any ,of them were owned by A. B. Wilgus, Jr., and that said notes and deeds of trust so purchased, if you find the same were purchased, and that the signatures of the makers of the said notes and deeds of trust are forgeries, then as to the notes and deeds of trust so purchased and sold as aforesaid, you will find the issues in favor of the plaintiff.

“7. The court instructs the jury that where a deed of trust is given covering real estate to secure the payment of a promissory note and the note is transferred by indorsement, such transfer of the note carries with it the security.

“8. The court instructs the jury that if the evidence in this case shows that the notes in controversy herein, or any one of them, at the time the plaintiff purchased the same, or any one of them, if you find plaintiff did purchase the same, or any one of them, were indorsed in blank, that is to say, the indorsement was made by the payee of the note or the last indorsee thereon by simply writing his name across the hack thereof, and if you further find that there was nothing said in the presence or hearing of plaintiff’s agent W. B. Hunt, as to who owned said notes, or any one of them, and that plaintiff’s agent had no knowledge who was the owner, at or prior to the time of such purchase by plaintiff, if you find there was such purchase, of said notes, or any one of them, and that the defendant at the time of the purchase of said notes, or any one of them, had possession of said notes, or any one of them, and had delivered the same to plaintiff’s agent, then the plaintiff had the right to presume that the defendant was the owner of such note so indorsed, sold and delivered.”

The court refused to give the following instruction requested by the plaintiff:

“9. The court instructs the jury that any person who sells a negotiable instrument, whether as owner or as agent for an undisclosed principal, represents and warrants that the signature to such instrument is genuine, even though the name of the person selling the instrument does not appear on the note.”

The court gave the following instructions at the request of the defendant:

“A. The jury are instructed that the mere facts the evidence that the defendant W. E. Sanders sold the notes in controversy in this case to the plaintiff for A. B. Wilgus, Jr., and that at or before the time of the sale thereof, plaintiff or her agent were informed or was told by defendant W. E. Sanders that A. B. Wilgus, Jr., was the owner of the notes, then the jury should find the issues in favor of the defendant W. E. Sanders.

”B. The jury are instructed that the mere facts that defendant Sanders sold plaintiff the notes and deeds of trust in controversy and that the signatures of the maker of said notes and deeds of trust were forgeries and that said notes and deeds of trust were and are now worthless, are not sufficient to warrant the jury in finding the issues in this case against the defendant W. E. Sanders.

“C. The court instructs the jury that if they find and believe from the evidence that the plaintiff or her husband, who was acting for her,'destroyed any document relating to the transactions in question, the presumption is that if said document were produced and offered in evidence it would be against the interest of the plaintiff.

“D. The jury is instructed that the question as to whether or not the plaintiff or her husband relied upon the defendant Sanders as to what he represented is immaterial in this case. You are further instructed that the fact that plaintiff or her husband did not have an attorney to examine the papers in question is not material in this case, and that the evidence of the plaintiff to the effect that he did not have an attorney examine the papers is withdrawn from your consideration.

“E. The court instructs the jury that the burden of proof in this case is upon the plaintiff to prove all the facts necessary to a verdict in his favor, as defined in these instructions, by the preponderance or greater weight of the evidence. And by the terms burden of proof and preponderance of evidence, as used in these instructions, the court does, not refer to the number of witnesses sworn on either side, but means that in point of credibility and value the evidence to sustain the plaintiff’s case must outweigh that for the defendant W. E. Sanders, and the jury are the sole judges of the credibility of the witnesses and of the weight and value to be given to their respective statements and evidence, and if the jury finds that the evidence to sustain the plaintiff’s case does not outweigh that for the defendant, W. E. Sanders, or that the evidence in behalf of the plaintiff’s case and that in behalf of the defendant W. E. Sanders is evenly balance, then the jury must find the issues in favor of the defendant, W. E. Sanders.

“And you are further instructed that if you find and believe that any witness has wilfully sworn falsely to any material fact in this case you may set aside the whole or any part of said witness’s evidence.

“F. If the jury find and believe from all the facts and circumstances in evidence that plaintiff’s agent knew at and before the sale and delivery of the notes and deds of trust that defendant did not own the said notes or loans of any of them, but was selling the same as agent for A. B. Wilgus, Jr., you will find the issues for defendant on such count or counts as the case may be.”

The jury found a verdict for the defendant and judgment was entered accordingly. The plaintiff filed a motion for new trial, but being overruled, plaintiff appealed to this court.

I. The court should have given plaintiff’s instruction No. 9, which it refused. It is the statute law in this State, since our Negotiable Instruments Law has been in effect, and was the common law in ^is ^a^e Prioi“ to that time, that any person selling a negotiable instrument, which the notes in controversy here were, whether the owner, or agent of an undisclosed principal, represents and warrants the genuineness of the signature to the note, although the seller’s name does not appear on the note.

Section 10035, Revised Statutes 1909, is as follows:

“Every person negotiating an instrument by delivery or by qualified indorsements warrants: (1) That the instrument is genuine and in all respects what it purports to be; (2) that he has a good title to it; (3) that all prior parties had capacity to contract; (4)' that he has no knowledge of any fact which would impair the validity of the instrument or render it valueless. But when the negotiation is by delivery only, the warranty extends in favor of no holder other than the immediate transferee. The provisions of subdivision three of this section do not apply to persons negotiating public or corporate securities, other than bills and notes.”

In Thompson v. McCullough, 31 Mo. 224, l. c. 225, the court said:

“The bill of exceptions does not show that any question was raised at the trial, by evidence. or by instructions, as to whether the defendants were dealing with the notes as principals or agents. It merely appeared that they were bill-brokers and that the plaintiffs dealt with them, knowing them to be engaged in this sort of agency. There was no evidence, other than this fact, to show that they were acting as agents for any one else; or if they were, that they disclosed the name of their principal, and that the plaintiffs gave credit to him. Under such circumstances the defendants are to be held as principals.

“It appears to be very well settled that the vendor of a bill or note, without indorsement, is responsible for the genuineness of the paper. He is considered as representing the note to he signed and indorsed by the persons whose names appear upon it in that character; and if these signatures are forgeries, the consideration fails. [Young and others v. Womersley and others, 3 Am. Law Reg. 502; 1 Jurist, N. S. 328.] Judgment affirmed. ’’

As said in Kinlen v. Railroad, 216 Mo. l. c. 163: “As an abstract proposition, the instruction in our opinion correctly declares the law, and if there was evidence upon which to base it then the action of the court in refusing it was reversible error.”

The whole theorjr of plaintiff’s'case, evidence and pleadings, supported said instruction. The error in its refusal was not cured by the other instructions given for plaintiff, because they did not expressly and distinctly state that under the circumstances predicated in said instructions, the seller represented and warranted the genuineness of the signature to the notes and the jury should have been distinctly so informed by the court.

II. Instruction B given for the defendant was erroneous. It tells the jury that the mere fact that defendant sold the plaintiff forged notes and deeds ^rus^ n0^ sufficient to warrant the jury in finding against the defendant. Such is not the law. The very reverse is the law. If there were no other facts in the case than that the notes' and deeds of trust were forgeries and that the defendant sold them to the plaintiff, the defendant under said section of the statutes (Sec. 10035, R. S., 1909), and the common laAV, would be liable, because the mere fact'of the sale by defendant, absent all other evidence as to the sale, would mean a sale as owner, or as agent for an undisclosed principal.

III. It is also objected by appellant that the court erroneously gave defendant’s Instruction D, Avhich told the jury that it was immaterial that plaintiff’s husband relied on defendant’s representation, or that he had no attorney to examine the papers, which , , , , o n • latter fact was withdrawn from their consideration. We agree as stated by respondent’s learned counsel, that the plaintiff’s petition was based upon a warranty by defendant of the genuineness of the paper sold, which plaintiff could establish by showing either an express warranty or an implied warranty. Plaintiff in her instructions to the jury, however, did not ask to submit the case as upon an express warranty, but simply on the implied warranty raised by the law in case the defendant sold the paper as owner or as agent of an undisclosed principal, without making any express warranty. In case defendant made an express warranty, then he would be liable to the plaintiff, whether or not he disclosed his agency or his principal. [Wilder v. Cowles, 100 Mass. l. c. 487.] Had plaintiff submitted her case as on an express warranty, the testimony excluded might have been competent, which, however, we do not pass on, as it is not before us. But, inasmuch as plaintiff did not attempt to submit her case as on an express warranty, we think the testimony excluded had no bearing- on the implied warranty upon which alone the plaintiff did submit her, case, and the plaintiff cannot complain of this instruction! We must rule this point against the appellant.

IV. Instruction C, given for defendant, was erroneous. It is true that wilfully despoiling a document would justify a presumption of law against the despoiler, that the contents of the document were not as stated by him, but as by his adversary. [Pomeroy v. Benton, 77 Mo. 87; Tracy v. Buchanan, 167 Mo. App. 438.] In this case, the only dispute between the parties was as to whether the destroyed opinions, were addressed to said Wilgus or to the defendant. There was no dispute as tó their contents. Had they been wilfully destroyed by the plaintiff or her husband, tbe only legitimate inference, as a matter of law, against the plaintiff would have been that they were addressed to Wilgus, and not that-they contained any other matter detrimental to plaintiff’s case — -which it is not claimed they did contain. If the said instruction was proper at all, it should have been limited to creating a presumption against plaintiff that the opinions were addressed to Wilgus, as claimed by defendant, and should not have broadly stated that if said documents had been produced, they would have been against the interests of the plaintiff. But, we think, in this case, where the explanation of the destruction of the opinions by the plaintiff’s husband,- testified to by him, if true, shows that they were not destroyed wilfully to suppress evidence, it would be error for the court to declare in an instruction to the jury that there was any presumption of law with reference thereto, because, when the facts and circumstances appear, and conflicting inferences may arise therefrom, presumptions of law disappear, and it is for the jury to pass on the weight of the evidence and credibility of the witnesses, in view of all the facts and circumstances in the case, without any suggestion or comment by the court in its instructions as to any such presumptions. [Mockowik v. Railroad, 196 Mo. 550; Guthrie v. Holmes, 272 Mo. 215; Brunswick v. Ins. Co., 278 Mo. 154; Prentiss v. Ins. Co., 225 S. W. l. c. 701.]

V. Appellant also objects to Instruction E, given for defendant, on the burden of proof. The portion objected to is the following: “The court instructs the jury that the burden of proof in this case is upon the plaintiff to prove all the facts necessary to a verdict in -his favor, as defined in these instructions, by the preponderance or greatei weight of the evidence.”

We think this instruction was proper, as there was nothing contained in the other instructions (which were all plaintiff’s instructions) stated to be necessary for the plaintiff to prove, in order to recover, which was not necessary for her to so prove. In this respect, it differs from the instruction on the burden of proof which the lower court gave, hut which the Supreme Court of Massachusetts criticized in the case of Wilder v. Cowles, supra.

VI. Over the plaintiff’s objection, the defendant was permitted to testify that it was not until sometime after the plaintiff purchased the notes in question that he knew they were forged, or - that Wilgus was or ^een dealing in forged papers. Error is assigned on account of this ruling. We think it is well assigned. It was wholly irrelevant and immaterial to any issue in the case whether or when defendant knew or did not know the paper was forged or Wilgus dealt in forged paper. Defendant’s innocence or good faith in the matter was in no way called in question by the plaintiff in her petition, and it it in no way constituted a defense to the plaintiff’s cause of action. The testimony complained of was improperly admitted.

Let the case he reversed and remanded for a new trial in accordance with the views herein expressed. It is so ordered.

Ragland, C., concurs; Brown, C., not sitting.

PER CURIAM:

The foregoing’ opinion by Small, C., is adopted as the opinion of the court.

All of the judges concur.


source: Caselaw Access Project

author: JAMES T. BLAIR, J. GRAVES, J.

license: Public Domain

text:
    KANSAS CITY RAILWAYS COMPANY et al., Appellants, v. BATTLE McCARDLE and BENTLY CLOTHING COMPANY.
    Division One,
    June 6, 1921.
    1. APPEAL: From Action oft Petition: Amended Petition. When an amended petition' is filed the original petition is merely an abandoned pleading, and an appeal from a record showing ‘‘action by the court on petition” is an appeal from the court’s ruling on the amended petition.
    2. EXEMPTIONS: Jurisdiction of Foreign Court. As against a demurrer, an allegation in the petition that the privilege of exemption of wages for the past thirty days of a non-resident employee of a Missouri corporation allowed by the laws of this State is not recognized by the courts of Kansas, makes it sufficiently apparent that said courts have jurisdiction to impound the employee’s wages by attachment.
    3. -: Evasion: Suit in Another State: Fraud on The Law. Injunction will lie by one citizen of this State against another to prevent a fraud upon his exemption rights and the law creating the right. A petition alleging that the exemption laws of Missouri cannot be successfully invoked by a citizen of this State in the courts of Kansas; that the wages of the plaintiff, a citizen of Missouri and an employee of a domestic corporation, which are sought to be reached by garnishment in Kansas, are exempt under the laws of Missouri, and that the purpose of defendants in resorting to the Kansas courts is to evade and defeat the exemption laws of Missouri and deprive said employee of the’> benefit, states a cause of action for injunctive relief.
    •i. —-: -: -: Injunction: Interference With Foreign Court. An injunction operates in personam, and an injunction asking a court of this State to restrain one citizen of this Stace from using a Kansas court as an instrument whereby he may inflict injustice upon plaintiff, another such citizen, in violation of its exemption laws, is not an interference with the courts of Kansas, but is the same sort of jurisdiction which equity possesses to enjoin, in proper circumstances, an action at law in a domestic court,

      5. -: -: -: Federal Constitution. In a proper' case, ■ the equity courts of one State can enjoin persons within their jurisdiction from the prosecution of suits in another, and such injunction violates no right guaranteed by the Constitution of the United States.
    6. -: -: -: State Constitution: Wrongful Parties. Section 30 of Article 2 and Section 2 of Article 10 of the Missouri Constitution are not applicable to the power of a court of equity to enjoin persons within its jurisdiction from the prosecution of suits in another. Whether parties sought to be affected by the injunction, and whom plaintiff attempts to bring in by representation or as a class, are in court, is not a constitutional question at all.
    7. —-: -: -: Misjoinder: Proper Parties. Injunction was brought by a Missouri corporation and one of its resident employees against a collection attorney and a clothing company to enjoin them from (1) prosecuting an attachment already begun in a Kansas court against said employee, to impound his wages for the last thirty days, in violation of Missouri laws; (2) to enjoin actions on numerous claims of the clothing company against employees of the corporation in which the attorney represents the clothing company; (3) to enjoin attachments on all claims of like kind in which the attorney may hereafter represent the clothing company; (4) to enjoin attachments on all other claims of the clothing company; and (5) to enjoin attachments on all claims of any citizen who is or may hereafter be represented by said attorney, against any employee of said corporation who is a citizen of Missouri and whose wages are exempt from garnishment under said laws. Held, that the clothing company is in no respect a party, present or prospective, to many of the causes of action the enforcement of which by garnishment is sought to be enjoined, and a demurrer charging misjoinder, having been filed, was properly sustained. Held, also, that the debtor employee is a proper plaintiff, and that the Missouri corporation can maintain a suit against the attorney to prevent him from instituting such attachments, for any and all his clients, since as garnishee it must not let the garnishments go by default and is being continuously harassed by a multiplicity of garnishment proceedings, and it can maintain injunction against said clothing company.
    Appeal from Jackson Circuit Court.- — Eon. Allen C. Southern, Judge.
    Affirmed.

      C. E. Cooley for appellants.
    (1) The petition sets forth facts sufficient to constitute in equity a cause of equitable relief in favor of both appellants, and against both respondents, (a) An injunction will lie at the suit of a resident of this State, who is entitled to exemptions under its laws, to restrain another resident of the State from prosecuting a suit by attachment, in a foreign jurisdiction, where the purpose and effect of such suit is to evade the exemption laws of this State and deprive such resident of his .exemptions under the laws of this State. Hardware & Mfg. Co. v. Lang & Co., 54 Mo. App. 147; Ry. Co. v. Siefert, 41 Mo. App. 35; Kelly v. Siefert, 71 Mo. App. 143; Fielder v. Jessup, 24 Mo. App. 91; Todd v. Mo. Pac. Ry. Co., 33 Mo. App. 110; Keyser v. Rice, 47 Md. 208, 28 Am. St. 448; Dehon v. Foster, 4 Allen (Mass.) 545; 2 Freeman on Executions (3 Ed.), p. 1076; Cole v. Cunningham, 133 U. S. 107; Allen v. Buchanan, 97 Ala. 187, 38 Am. St. 187; Griggs v. Docter, 89 Wis. 161, 46 Am. St. 824. (b) The interests of the garnishee, and of the defendant in a garnishment proceeding, in the object of the suit, are so interrelated as to enable such garnishee to join in a suit with such defendant to enjoin a resident of the same jurisdiction as such garnishee and defendant, from proceeding by attachment in the courts of a foreign jurisdiction, for the purpose of depriving such defendant of the exemptions allowed him by the laws of the domicile of the parties, especially where the purpose and effect of such proceeding is to harass and annoy garnishee and defendant. Ry. Co. v. Siefert, 41 Mo. App. 35; 16 Cyc. 184; Fletcher v. Wear, 81 Mo. 532; Story on Equity Pleading (10 Ed.), 85. (c) If the garnishee may join with an individual employee in asking an injunction restraining the institution or prosecution of a garnishment proceeding in a foreign jurisdiction, where all the parties are residents of this jurisdiction^ and where the purpose of such proceeding is to deprive the employee of his exemption rights, then such garnishee, joined with one or more employees, is entitled to such relief on behalf of all other employees similarly situated. 1 Beach on Injunctions, p. 372, sec. 365; 22 Cyc. 912; Ry. Co. v. Siefert, 41 Mo. App. 35; Savings Inst. v. Collonious, 63 Mo. 295.' (2) The petition is not demurrable on the ground of multifariousness or misjoinder of causes of action, (a) As to plaintiffs: R. S. 1909, sec. 1731; 16 Cyc. 184; Bobb v. Bobb, 76 Mo. 419; Breimeyer v. Star Bottling Co., 136 Mo. App. 84; 16 Cyc. 248, 6b. (b) As to defendants: Bobb v. Bobb, 76 Mo. 419; Perkins v. Baer, 95 Mo. App. 70. (3) There are no valid constitutional objections to the jurisdiction of the courts of this State to grant the relief prayed in appellants’ petition. Hardware & Mfg. Co. v. Lang, 54 Mo. App. 147; Cole v. Cunningham, 133 IJ. S. 1.03; Dehon v. Poster, 4 Allen (Mass,) 545; Keyser v. Rice, 47 Md. 203, 28 Am. St. 448; Towne v. Bowers, 81 Mo. 496.

      Battle McCardle for respondent.
    (1) Demurrer was properly sustained. The suit was not filed in the name of the real party in interest. Sec. 1729, R. S. 1909. The Kansas City Railways Co. had no interest in the exemption from garnishment of any wages due its employees. The right to claim such exemption was a privilege personal and peculiar to such employees. It could not be assigned, and it could not be exercised by the employer, the Kansas City Railways Company. Howland v. Railroad, 134 Mo. 474; Osburn v. Schutt, 67 Mo. 712; Wabash R. R. Co. v. Bowring, 103 Mo. App. 164; Holmes v. Corbin, 20 Mo. App. 507; Din-kins v. Cruden-Martin Co., 99 Mo. App. 310. (2) The mere fact that the Kansas City Railways Company was called upon to answer a summons in garnishment in Kansas instead of Missouri constituted no grievance. Petition showed no fraud upon the railway, and no added hardship in calling upon it to appear in court, in Kansas, where it operated a road, had offices and was licensed to do business. Petition contained no charge that under law it was not liable to be summoned legally in Kansas. Under such a state of facts our courts have refused to interfere bv injunction. Hardware & Mfg. Co. v. Lang, 54 Mo. App. 147, 127 Mo. 142. (3) Before Allen C. Campbell was made a party plaintiff, demurrer should have been sustained. Clearly several causes of action were then united improperly; After he became a party plaintiff the same several causes of action continued united improperly. All causes of action that may be united must “all belong to one of these classes and affect all the parties to the action.” Sec. 1759, R. S. 1909; Beattie v. Gerardi, 166 Mo. App. 143. (4) Cause of action filed originally in favor of the Kansas City Railways Company could not be amended by making Campbell a party plaintiff. The cause of action was not joint. The first petition was bad, and the only effect of adding a party plaintiff was to substitute Campbell for the Railways Company. The code permits amendment, but not where the cause of action is changed, nor where one cause is substituted for another. Courtney v. Sheehy, 38 Mo. App. 290; Jordan v. Railroad, 105 ¡Mo. App. 446; Hall v. School District, 36 Mo. App. 21; Scoville v. Glasner, 79 Mo. 449. No privity of relationship was shown to exist between the Railways Company and Campbell or other employees. That such privity exists is a necessary condition precedent to the maintenance of a joint action. (5) Petition was lacking wholly in equity. If it possessed any equity it was difficult to find the same, hidden as it must have been in the evident multifariousness of the petition. (6) Petition sought to reach all persons who at any time in the future, now unknown and unnamed, might be represented by defendant McCardle. This relief, if granted, would amount to a partial disbarment of defendant McCardle from practicing law; a result that cannot be effected by injunction.
   JAMES T. BLAIR, J.

This is an appeal from a judgment for defendants upon plaintiffs’ failure to plead over after the trial court sustained a demurrer to the following petition:

“Come now plaintiff above named, and for their cause of action against the defendants above named, state: that plaintiff Kansas City Eailways Company is a corporation duly organized according to law, operating a street railway system in the cities of Kansas City, in the State of Missouri, and vicinity, and in Kansas City, in the State of Kansas, and vicinity, and as such employs a large number of men in its business; that plaintiff Allen C. Campbell is an employee of said Kansas City Eailways Company; that the defendant Bentley Clothing Company is a corporation organized and existing under the laws of Missouri, and doing a credit clothing business in Kansas City, Missouri; that defendant Battle McCardle is an attorney, operating a collection office in Kansas City, Missouri, collecting bills for a large number of credit houses located in Kansas City, Missouri.

“It is provided by the laws of Missouri (Eevised Statutes of 1909, sec. 2180, 2183 and 2115) that this plaintiff, or any employer, cannot be charged as garnishee for more than ten pen cent of any wages due from him to a defendant in its employ for the last thirty days’ service, where the defendant and employee is a resident of the State of Missouri, a married man or at the head of a a family.

“The defendant Battle McCardle, who is a resident of the State of Missouri, and has his office in Kansas City, Missouri, has at times numerous accounts for collection against employees of this plaintiff. For the purpose of harassing and annoying this plaintiff, Kansas City Eailways Company, and for the purpose of depriving the employees or said plaintiff of the benefit of the exemptions allowed them by the laws of the State of Missouri, as aforesaid, said McCardle has been in the habit of instituting numerous proceedings upon said claims against employees of said plaintiff in the courts of the State of Kansas, causing plaintiff to be summoned as garnishee on account of the wages due from it to said employees, and refusing to allow said employees the exemptions to which they are entitled under the laws of Missouri; said McCardle is continuing to so institute such proceedings in foreign jurisdictions, and to harass this plaintiff and its -said employees, and plaintiff Allen 0. Campbell, and threatens to continue so to do. '

“Defendant McCardle represents nuitierous credit houses, among them the defendant Bentley Clothing Company. Plaintiff alleges that among the numerous claims upon which defendant McCardle has so instituted proceedings in foreign jurisdictions against employees of plaintiff Kansas City Railways Company is one of the defendant Bentley Clothing Company against one Allen C. Campbell, one of the above named plaintiffs, who is a resident of the State of Missouri, a married man and at the head of a family, and as such is entitled to the exemptions allowed him by the laws of Missouri; that proceeding upon said claim of defendant Bentley Clothing Company, defendant McCardle, as its attorney and agent, has caused suit to be instituted thereon against said Allen C. Campbell in the State of Kansas, and has caused this plaintiff Kansas City Railways Company to be summoned’ as garnishee therein, to appear and answer touching the amount due said Campbell, for wages earned by him as such employee of the said plaintiff, for the last thirty days’ service, for the purpose and with the view of depriving said Campbell of the exemptions allowed him by the laws of the State of Missouri, and for the purpose of harassing and annoying this plaintiff Kansas City Railways Company and its employees, especially said Campbell.

“Plaintiff further alleges that the privilege of exemptions allowed by the laws of the State of Missouri is not recognized by the courts of the State of Kansas, the employees being non-residents of that State, and such privilege cannot be interposed except in the State of Missouri, although said employees demand such exemptions of plaintiff; that the proceedings of defendants, or either of them, are in fraud of the laws of the State of Missouri, and for the fraudulent purpose of depriving employees of plaintiff of their rights under such laws.

“Plabitiff further states that they have no adequate remedy or protection at law against the aforesaid fraudulent proceeding instituted by defendants Bentley Clothing Company, and Battle MeCardle as attorney and the moving factor, or against any such numerous proceedings instituted by defendant MeCardle as collection attorney, and that unless defendants, and each of them, are restrained from instituting such proceedings in foreign jurisdictions for the purpose of depriving plaintiff Allen C. Campbell and other employees of the plaintiff of their exemptions and in fraud of the exemption laws of the State of Missouri, plaintiff Kansas City Railways Company and its numerous employees will be subject to a multiplicity of suits, and be put to great annoyance and expense because of said acts of defendants, or either of them, and plaintiff Allen C. Campbell will suffer irreparable injury and be deprived of his rights, and that the employees of plaintiff Kansas City Railways Company will be deprived of the right, of exemptions allowed them by the laws of the State of Missouri, and will be subjected to great hardship and suffering because of being so fraudulently deprived of their right of exemptions, and will be subjected to irreparable injury at the hands of defendants, and especially the defendant MeCardle, if each and every employee whose rights are so fraudulently denied him is compelled to proceed separately ag’ainst defendants.

“ Wherefore plaintiff prays the court to make an order enjoining and restraining defendants, or either of them, from further proceeding in or prosecuting the above mentioned suit against Allen C. Campbell, and that either or both of them be enjoined from instituting any further proceeding, for themselves or for anybody else, either as plaintiff or as an attorney, in any State other than the State of Missouri, on any claim whereby they, or either of them, seek to charge plaintiff Kansas City Railways Company as garnishee on account of any wages due from it to any of its employees for the last thirty days’ services, where said employee and the creditor both reside in the State of Missouri and the employees are married men or at the head of a family, and as such entitled to exemptions, and that after evidence has been introduced herein and this matter heard, this order be made perpetual and for such other and further relief as to the court may seem meet and proper.”

The demurrer filed in this petition by defendants reads as follows:

“Come defendants Bentley Clothing Company and Battle McCardle and demur to amended petition of the plaintiff herein, and for cause thereof states:

“That said petition fails to set forth facts sufficient to constitute in equity a cause of equitable relief in favor of either of the plaintiffs herein and against either of the defendants herein.

“That there is apparent upon the face of said amended petition a want of equity therein.

“For special grounds of demurrer to said amended petition, these defendants state:

“1. That the action herein is not prosecuted in the name of the real party in interest, in that the Kansas City Railways Company, a corporation, has no interest in and to the exemptions from garnishment of wages of Allen C. Campbell, and that the right, if any, of said Campbell, to claim exemptions is a privilege personal and peculiar to him and cannot be asserted by the Kansas City Railways Company.

“2. That there is a defect of parties plaintiff, in that there is united in said petition an alleged cause of action in favor of the Kansas City Eailways Company, and an alleged canse of action in favor of said Allen C. Campbell, and defendants state that there is no privity of relationship between the Kansas City Eailways Company and Allen C. Campbell, and the two alleged canses of action are several and distinct and not joint and cannot be nnited in one petition.

££3. That several alleged canses of action have been improperly nnited in said petition, towit:

££a. A pretended canse of action in favor of Kansas City Eailways Company, and a pretended canse of action in favor of Allen C. Campbell, against Battle McCardle.

££b. A pretended canse of action in favor of Kansas City Eailways Company, and a pretended canse of action in favor of Allen C. Campbell, against Bentley Clothing-Company.

££c. A pretended canse of action in favor of all persons now employed or to be employed by the Kansas City Eailways Company and against Bentley Clothing Company and Battle McCardle.

££d. A pretended canse of action in favor of the Kansas City Eailways Company and against all persons whomsoever in the fntnre, who may be represented by Battle McCardle as attorney a't law.

££e. A pretended canse of action in favor of all persons now employed or to be employed by plaintiff against all persons whomsoever who in the fntnre may employ Battle McCardle as attorney at law.

<£f. A pretended canse of action by Allen C. Campbell against all persons in the fntnre, who may employ Battle McCardle as attorney at law.

“4. That severel alleged canses of action have been improperly nnited in said petition, in that there is nnited a pretended canse of action by the Kansas City Eailways Company against Bentley Clothing Company and Battle McCardle on acconnt of employees now employed or to be employed by it.

“A pretended cause of action by Allen C. Campbell against Battle McCardle and against all persons who in the future may employ Battle McCardle, as attorney at la,w, in that said Allen C. Campbell has no concern or interest whatsoever with persons in the future, as shown in said petition, who may employ Battle McCardle.

“Defendants state that each of said pretended causes of action are distinct and several, and that the Kansas City Railways Company has no interest, privity or concern with any pretended cause of action in favor of Allen C. Campbell.

“That the relief prayed for in said petition contravenes Article 1, Section 1, of the Constitution of the United States.

“That the relief prayed for contravenes Article 4, Section 2, of the Constitution of the United States.

“That the relief prayed for contravenes Section 1, Article 14, of the Constitution of the United States and Article 2, Section 30, of the Constitution of the State of Missouri.

“That the relief prayed for contravenes Article 2, Section 10, of the Constitution of the State of Missouri.

“That the relief prayed for contravenes Sections 951, 952, 953, 954 and 957* Revised Statutes of Missouri 1909.

“Wherefore defendants pray judgment and that the temporary restraining order be discharged and that the court award to them a reasonable allowance as attorney’s fee herein.”

The court sustained the demurrer and entered judgment as stated, and plaintiffs appealed.

I. Defendant contends that the record does not show any action by the trial court upon the amended petition and that, therefore, the appeal is premature. This is based upon the fact that the record s^ows “action by the court on petition” and that “plaintiff elected to stand on petition.” Defendant argues this necessarily refers, to the original petition and not to the amended petition. There is nothing in this contention. The only petition in the case when the court acted was the amended petition. The original petition, when the coiirt ruled, was merely an abandoned pleading, if it ■really had any separate legal existence at all. The amendment was by interlineation. The word “petition” in the record must be construed to mean the pleading which constituted a petition at the time the ruling was made, and not some paper which once had been but no longer was a petition.

II. As against the demurrer filed, it sufficiently appears from the allegations of the petition that Campbell could have maintained a suit in Wyandotte County, .Kansas, against the Railways Company f°r w8!?68 'which defendants are seeking to reach by garnishment proceedings in that county. The Kansas courts, therefore, had “jurisdiction to impound” Campbell’s “credits there by the attachment.” [Hardware & Mfg. Co. v. Lang & Co., 127 Mo. l. c. 247; Howland v. Ry. Co., 134 Mo. l. c. 478; State ex rel. v. Leahy, 193 Mo. App. l. c. 44; Farrar v. Am. Express Co., 219 S. W. l. c. 993, 994; Assurance Co. v. Walden, 238 Mo. l. c. 63.]

III. The petition alleg’es and the demurrer admits that the exemption laws of Missouri cannot he invoked successfully by a citizen of this State in the courts of Kansas; that Campbell’s wages which are reacted by garnishment in Kansas are exempt under the laws of Missouri, the State of Campbell’s residence; that defendants are also residents of Missouri; and that the purpose of defendants in resorting to the Kansas court is to evade and defeat the exemption laws of Missouri and deprive Campbell of their benefit. Injunction will lie by one citizen of this State against another to prevent such a fraud upon exemption rights and upon our laws. The decisions are practically unanimous in support of this doctrine. [Kelly v. Siefert, 71 Mo. App. l. c. 147; Wabash Western Ry. Co. v. Siefert, 41 Mo. App. l. c. 41; Wierse v. Thomas, 145 N. C. 261, 15 L. R. A. (N. S.) 1009 and note, 122 Am. St. Rep. 446 and note.] The injunction operates in personam and is not an interference with the courts of the foreign State. No restraint upon the Kansas court is attempted. The court of this State is asked simply to restrain one citizen of this State from using the Kansas court as an instrument whereby he may inflict injustice upon another citizen of this State. It is but the same sort of jurisdiction which equity possesses to enjoin an action at law in a domestic court, in proper circumstances. [1 High on Injunctions (4 Ed.), sec. 106, p. 116, et seq.; 2 Freeman on Executions (3 Ed.), sec. 209, p. 1076; Keyser v. Rice, 47 Md. l. c. 213, et seq.; Margarum v. Moon, 63 N. J. Eq. l. c. 588, 589; Allen v. Buchanan, 97 Ala, l. c. 401, et seq.] In these citations will be found cited numerous other decisions in point. With respect to the Federal constitutional questions which are raised, the Supreme Court of the United States has held valid the principle upon which this sort of proceedings rests. In Cunningham v. Butler, 142 Mass. 47, there was presented a question whether a Massachusetts court could enjoin parties from prosecuting a suit begun in a court of a foreign State by one citizen of Massachusetts against another in anticipation of insolvency proceedings in Massachusetts and for the purpose of attaching property in the foreign State and preventing its seizure and distribution in insolvency proceedings, i. e. to defeat those proceedings pro tanto. The principle of the cases permitting injunction in circumstances like those in the case now at this bar was applied, and it was held there was no constitutional restriction upon the power of the Massachusetts court to prevent, by injunction, the contemplated fraud. The cause went by writ of error to the Supreme Court of the United States. [Cole v. Cunningham, 133 U. S. 107.] That court, after discussing the question, at page 116, stated it thus: “So that after all, the inquiry is, whether in a proper case, the equity courts of one State can control persons within their jurisdiction from the prosecution of suits in another. If they can, in accordance with the principles of equity jurisprudence and practice, no reason is perceived for contending* that the Constitution of the United States prescribes any different rule.” The very statement of the question makes clear the soundness of the ruling. Concerning the objection based upon Section 30 of Article 2 and Section 2 of Article 10 of the State Constitution, there seems to be no reason upon which those sections could be held applicable. The question whether parties sought to be affected, and whom plaintiffs attempt to bring in by representation or as a class, are in court, is not a constitutional question at all. They must be in court before the judgment could affect their rights. The question whether they are in court requires no construction of the Constitution. So far as concerns defendants’ rights to access to courts for redress for their grievances that furnishes no ground for denying them the right to use a court as a means of defeating exemption rights and perpetrating what amounts to a fraud.

IV. The defendant who is sued, and not the garnishee, usually is the applicant for injunctive process in circumstances like those disclosed by the petition in this case. This was pointed out in Wabash Western Ry. Co. v. Siefert, 41 Mo. App. l. c. 41, in which the garnishee was sole plaintiff. In that case the St. Louis Court of Appeals held, in an opinion by Eombatjer, P. J., concurred in by Thompson and Biggs, JJ., that the garnishee was threatened with a multiplicity of suits and was entitled to have each of them enjoined by joining in each, as co-plaintiff, the individual employee proceeded against; that since there was no demurrer for defect of'parties, the garnishee, as sole plaintiff, was entitled to affirmance of the judgment against Siefert, who held, as assignee, numerous claims against individual employees of the railway company. Whether this ruling is correct need not be decided in this case. For present purposes let it be assumed to be so. The question of misjoinder is raised by the demurrer. The proceedings against which injunction is sought to prevent defendants from prosecuting attachments in Kansas, are: (1) the attachment actually begun in Kansas against Campbell; (2) actions on numerous, claims of the Bentley Clothing Company against employees of the Railways Company in which defendant McCardle represents the Bentley Clothing Company; (3) attachments on all other claims of like kind [as under (2)] in which McCardle may hereafter represent the Bentley Clothing Company; (4) on all other claims of the Bentley Clothing Company; (5) on all claims of any citizen of Missouri who is or may be represented by McCardle now or hereafter against any employee of the Railways Company who is a citizen of Missouri and entitled to exemptions with respect to the wages which may be garnisheed. It is obvious that whatever may be the rights of the plaintiffs, .jointly or severally, and without regard to the question' whether Campbell can be permitted to sue in behalf of all other employees in a like situation, the Bentley Clothing Company is in no respects a party, present or prospective, to many of the causes of action the enforcement of which by garnishment in Kansas is sought to be prevented. It has no connection with the several other clients of McCardle against whom injunction is sought, and no connection with claims of other firms or persons against Campbell and other employees of the Railways Company. While the petition, had no objection been raised to it, might have warranted some relief, yet the objection for misjoinder was made and sustained. That the ruling in this particular was correct is clear. Plaintiffs did not amend and eliminate the misjoinder, but stood on tbe petition.

The judgment is affirmed.

All concur; Graves, J., in separate opinion, in which all concur.

GRAVES, J.

(concurring). — I concur in the result of the opinion herein. The basis of such an action is the fraud upon the rights given to an employee in Missouri by our exemption statutes. The petition in this case covers more ground than it should have covered. In my judgment, the plaintiff Railways Company could have maintained a suit against McCardle to prevent him from instituting these numerous suits, the object of which was to obviate the effect of the exemption statutes of Missouri as to citizens of Missouri. The Railways Company has such an interest in these attachment suits (as garnishee) as to give it a standing as a party plaintiff. As garnishee it must not let the case go by default, but must place itself aright with its Missouri creditor employees by appearing continuously in such cases. It has such interest by reason of the multiplicity of suits as will permit it to maintain an action such as is here brought, in its own right, as against McCardle, or as against McCardle and any particular client of his, who was bringing or threatening to bring such suits. The Railways Company could join McCardle and any one particular client, as defendants. It could maintain an action as against McCardle alone as to bringing such suits for any or all clients represented by him. The Railways Company had more than a passing interest in the perpetration of this fraud upon the laws of the State. It is being continuously harassed by these numerous garnishment proceedings, to which it is made a party, in the very act of perpetrating the fraud upon our laws. We are firmly convinced that the Railways Company can maintain an action to enjoin such frauds upon our laws. It was not necessary for it to have joined Campbell as party plaintiff.

All the judges concur in these additional views.


author: GRAVES, J.

text:
    MARY A. LARRICK et al., Appellants, v. FREDERICK G. HEATHMAN et ux., Appellants.
    Division One,
    June 6, 1921.
    1. DEED BY ENTIRETY; Resulting Trust: Character of Proof. A deed conveying land to “Fred. G. Heathman and Fannie B. Heath-man, husband and wife” upon its face creates an estate by the entirety. But after her death a resulting trust in her favor may be shown by parole proof; but the burden of proof to overcome the deed is upon her heirs or devisees, and such proof must be of such strength as will leave no doubt as to the trust.
    2. -: -: Presumption: Intention. The presumption of a resulting trust arising from the fact of one party paying all or a part of the consideration money for a deed may be rebutted by parole testimony, and the intention of the parties at the time the deed was made is a material element in determining the question of trust or no trust.
    3. RESULTING TRUST: Wife’s Money: Used Without Her Written Consent. Since the Married Woman’s Acts of 1889 became effective, a resulting trust arises in favor of the wife (and upon her death in favor of her heirs) upon the purchase of lands with her money and the taking of title in her husband, without her written consent. But -she can purchase land herself and use her own money to pay for it and have the deed name her and her husband as grantees, without her written consent or a written contract, and no resulting trust will arise in her favor.

      4. -: -: Deed by Entirety: By Wife’s Direction. The deed was made to the husband and wife in November, but not delivered until January. The land of her father was sold in October, and she received $1572 for her share therefrom; and that money and $500 paid by him went to pay for the land, the greater part of the consideration of $2200 being paid when the deed was delivered in January. They went to the seller and talked over with him the matter of the deed, and he testified that both said they had money to put in the land and wanted the deed so drawn that if either died the other would get the land, and he suggested that they have a joint deed drawn, and both agreed to that, and she said'that was the way she wanted the deed made,
      and it was accordingly so drawn. They both had previously examined the land, and thereafter went together to the seller and agreed to buy it. Held, that the wife was as much a buyer as the husband, and the two buyers, as between them and the seller, had the right to direct the devolution of the title, and it was immaterial who cheeked out the funds that went to pay for it, since she was investing her own funds, and when the seller made her the conveyance she desired, both she and her heirs were thereafter precluded from questioning its character, and hence no resulting trust in favor of either at any time arose.
    Appeal from Shelby Circuit Court. — Hon. V. L. Drain, Judge.
    Reversed and remanded (with directions).

      Enoch M. O’Bryen and J. S. Arnote for plaintiffs.
    (1) Where a husband invests his wife’s personal property without her written consent in real estate and takes the deed in the name of both, an estate in trust is created to the extent of the wife’s money invested. Sec. 8309, R. S. 1909; Garner v. Jones, 52 Mo. 72; Jones v. Elkins, 143 Mo. 651; McLeod v. Venable, 163 Mo. 545; Johnson v. Johnson, 173 Mo. 97; Frost v. Frost, 200 Mo. 483; Hudson v. Wright, 204 Mo. 432; Donovan v. Griffith, 215 Mo. 149; Moss v. Ardry, 260 Mo. 605; Holman v. Holman, 183 S. W. 623; Powell v. Powell, 183 S. W. 625; Cross v. Huffman, 217 S. W. ’520. (2) Plaintiffs were entitled to judgment for a larger proportion of the land in controversy than was awarded to them by the court because the court failed to take into consideration, in awarding plaintiffs ’ judgment, the money, the joint accumulation of Frederick G. Heathman and his wife, invested by him in the land in controversy. McCloud v. Venable, 163 Mo. 545, 63 S. W. 847. (3) The plaintiffs were entitled to recover rents from the defendants since the death of Fannie B. Heathman, April 26, 1916, Frederick G. Heathman, the defendant, occupied the land in controversy after the death of Fannie B. Heatliman, exclusively as against the plaintiffs, claiming the land as his own, and that the defendants had no interest in it, and is still making that contention, and therefore held adversely to the plaintiffs. 38 Cyc. 66; 7 R. C. L. 820, sec. 23; Starks v. Kirchgraber, 134 Mo. App. 121; Bates v. Hamilton, 144 Mo. 1; Donovan v. Griffith, 215 Mo. 149. (4) The above authorities would seem to settle the proposition, but if the court desires to go further in the proposition we cite the following’ cases: Crane v. Wagoner, 27 Ind. 52; Early v. Friend, 16 Grat. 21; Ward v. Ward, 40 W. Ya. 611; Mining Co. v. Yarwood, 91 Am. St. 874, note 4; Fenton v. Miller, 116 Mich. 45; Cain v. Cain, 53 S. C. 350; Rippe v. Badger, 125 Iowa, 725; McGahan v. Roundout Bank, 156 IT. S. 218, 39 L. Ed. 403.

      R. G. Maupin and Harry J. Libby for defendants.
    (1) The warranty deed to “Fred G. Ileathman and Fannie Heathman, husband and wife ’ ’ created in terms, an estate by the entirety, and the surviving tenant stood seized from the beginning of the entire estate to the exclusion of the heirs of the deceased tenant. Gibson v; Zimmerman, 12 Mo. 386; Garner v. Janes, 52 Mo. 68; Beauchamp v. Schrader, 52 Mo. 72; Hall v. Stephens, 65 Mo. 670; Edmondson v. Moberly, 98 Mo. 523; Bains v. Bullock, 129 Mo. 117; Hume v. Hopkins, 140 Mo. 65; Otto Stifel Brew. Co. v. Saxy, 273- Mo. 159. (2) The bux’den of proving that a resulting trust arises is cast upon the parties claiming against the deed, and the evidence for that purpose must be so clear, convincing and complete as to leave no doubt in a reasonable mind that it was the intention of the parties to the transaction that a resulting trust should be created. Morford v. Stephens, 178 S. W. 441; Joerger v. Joerger 192 Mo. 133; Philpot v. Penn, 91 Mo. 44; Johnson v. Quarles, 46 Mo. 423. (3) And since a resulting trust may be shown by a parol proof, as a presumption of law arising out of the transaction, so the' presumption may be rebutted by parol proof showing that no trust was intended by the parties at the time of the transaction, and that it was the intention to confer the beneficial interest upon the supposed nominal purchaser; and whatever facts appear tending to prove that it was intended that the nominal purchaser should 'take the beneficial interest as well as the legal title, negatives the presumption. 1 Perry on Trusts (6 Ed.), sec. 139; Morris v. Clare, 132 Mo. 232; Morford v. Stephens, 178 S. W. 441. (4) And where a clear understanding is had at the time the purchase is made, the money paid, and the deed taken, by which the nominal purchaser was to have both the legal and beneficial interest, it is incompetent for the person who paid the purchase money to put a different construction upon the transaction at a subsequent time and claim a resulting trust in the estate contrary to the understanding and intention at the time. 1 Perry on Trusts (6 Ed.'), sec. 140. Intention is an essential element. Such a trust arises only where such may be reasonably presumed to be the intention of the parties. It has been said the presumption springing from one party paying all or á part of the purchase money arises only in the absence of all evidence of intention. And that a resulting trust can never arise contrary to the expressed intention of the parties at the time of the sale or transaction. 3 Pomeroy’s Eq. Juris. (3 Ed.) sec. 1031; 39 Cyc. 105, 113, 127; Ferguson v. Robinson, 258 Mo. 129; Stephens v. Fitzpatrick, 218 Mo. 708; Morford v. Stephens, 178 S. W. 441. (5) Thé intention of the Legislature in enacting the Married Woman’s Statute (Sec. 8304, R. S. 1909) was to remove the disabilities under which a married woman labored at common law, so as to permit her to contract and be contracted with, sue and be sued, and the language used being entirely without exception, is broad enough to permit her to contract with her husband, and her contract with him will be enforced at law, just as if she had contracted with third persons. Bice Stix v. Sally, 176 Mo. 107; Grimes v. Bieynolds, 184 Mo. 679; Smelzer v. Mier, 196 S. W. 22; Combs v. Knowlton, 200 S. W. 743; Aeby v. Aeby, 192 S. W. 97. (6) The testimony of the witness Marion Dale, agent of the vendor, Homer Dale who was the only living witness, competent to testify, as to what occurred at the time of the purchase of the land, and whose testimony is all the testimony on the point, and which testimony is wholly uncontradicted, shows that Fannie G. Heathman and her husband Frederick G. Heathman had had their deed so made that whichever one died, the survivor would take the whole, and that she wanted it that way, wanted her husband to have it,- and shows clearly (a) that the-wife did not intend to create a trust for the benefit of her heirs; (b) That she did intend, and did, in law, and in fact, create an estate by the entirety, and that her husband as survivor became and is entitled to the whole; and (c) that she intended whatever money she invested in the land to be a provision for her husband in the event she died first. Haguewood v. Britian, 273 Mo. 89; McCune v. Graves, 201 S. W. 891; Craig v. Bradley, 153 Mo. App. 593.
   GRAVES, J.

Action to have declared a resulting trust in and to eighty acres of land in Shelby County, Missouri. Mary A. Larrick is the mother and James A. Larrick and Mattie L. Byers are the brother and sister of Fannie B. Heathman, who died childless and intestate-April 26, 1916, in Shelby County, Missouri. These are the plaintiffs who seek to enforce a resulting; trust, on the theory that the money of Fannie- B. Heathman was used in the purchase of the land involved. Defendant Frederick G. Heathman is the former husband of the deceased, Fannie B. Heathman, and the defendant Addie Heathman is his present wife.

The land in question was bought in 1901 from one Homer Dale, and the deed taken in the names of “Fred Gr. Heathman and Fannie B. Heathman, husband and wife.” They lived upon the land to the date of Fannie B. Heathman’s death. Fannie B. Heathman (the wife) received from the real estate of her father’s estate the sum of $1,572, and there is but little doubt that this money went into the land in question, which land cost $2,200. The difference was .paid by the husband, Frederick Gr., who, after getting the deed as aforesaid, put valuable improvements thereon, aggregating some $2400 or more. It is shown that Fannie. B. had but little other property of her- own. It included two horses, two cows and $100 cash, which likewise came from her father’s estate. The $1572 came from the sale of the father’s land.

After hearing all the testimony, the trial court decreed a resulting trust in favor of plaintiffs in said land as follows:

“Wherefore, it is ordered, adjudged and decreed by the court, that the defendant Frederick Gr. Heathman took and held the title to 1575-2200 of said land in trust for the said Fannie B. Heathman and that 625-2200 thereof was taken and held in his own right and is now so held by him. That upon the death of the said Fannie B. Heathman as aforesaid one-half of the 1575-2200 of said land descended to Frederick Gr. Heathman as her surviving husband, and one-half thereof to the plaintiffs, Mary A. Larrick, James A. Larrick and Mattie L. Byars, each being seized of and entitled to an equal share in the said one-half of 1575-2200 of said land, and said lands so held by said Frederick Gr. Heathman are hereby impressed with a trust in favor of said plaintiffs in accordance with the findings herein.

“It is further adjudged and decreed that the plaintiffs recover nothing for rents from said Frederick Gr. Heathman, and that said defendant Frederick Gr. Heath-man recover nothing for improvements placed upon said land, and that the costs of this action be taxed against defendant and that execution issue therefor. ’ ’

From such, judgment by both sides an appeal is taken. The vital question is the real character of the deed from Dale. Of this, and the pertinent facts in the opinion.

I. Upon its face the deed from Dale created an estate by the entirety. If we were confined to that, the end of this case would be in sight. But a resulting trust may be shown by parol proof, and in the face of the deed, if the quantum of proof appears. The burden 0f proof is upon plaintiffs in this case, if they are allowed to overturn the deed. [Joerger v. Joerger, 193 Mo. l. c. 139; Morford v. Stephens, 178 S. W. l. c. 441.] And such proof must be of a strength that will leave no doubt as to the trust. [Morford v. Stephens, supra; Ferguson v. Robinson, 258 Mo. l. c. 133.] The intention of the parties at the time the deed was made is a material element in determining the question of trust or no trust. That is to say, the presumption of a trust arising from the fact of one party paying all or a part of the money, may be rebutted by the testimony, as well as by the deed. The deed itself may be contradicted, so as to show a resulting trust, if the facts in .evidence warrant.

The question of the proof required may be gathered from the case, 'supra. So in this case it but remains to measure the proof made by plaintiffs by the rule established by these cases as to quantum of proof. Many other cases might be cited, but these will suffice to illustrate the rule.

II. It would be jockeying with facts to suggest that $1572 of Fannie G. Heathman’s did not go into the land. Tt is clear that Fred G. Heathman put in the remainder, Whether or not he got any portion of this from Fannie’s share in the personal estate of her father is not definitely shown by the evidence. It appears that Heathman was a-man of limited means at his marriag’e a few years before this transaction, and the improvement placed upon the farm were no doubt from accumulations made after the purchase of the farm. When the farm was purchased in 1901, Fannie had not yet received her part from the sale of the father’s real estate, and the first $500 payment on the farm was made by the husband. But, before the delivery of the deed, in 1902, she had received the $1572, and as indicated it is clear that this money went into the land. Had the husband taken full title to the land in his own name, under these facts, without more, a resulting trust might have to be declared, as to the interest represented by the money of the wife. [Moss v. Ardrey, 260 Mo. l. C. 604.] So, too, it might be said that had the husband caused the deed creating an estate by the entirety to be made without the knowledge or consent of the wife (after placing her money in as a part of the purchase money) then a like situation might result. [Moss v. Ardrey, supra, and the cases therein cited and reviewed; Johnston v. Johnston, 173 Mo. l. c. 118.]

Our cases cover the time before, as well as the time after, the Married Woman’s Act of 1889. This case, upon the facts, would come clearly under the law existing after the passage of the several Married Woman’s Acts. It arose at a time when, under ordinary circumstances, the wife could even contract with her husband. It arose at a time when Section 8309, Revised Statutes 1909 (formerly Section 4340, R. S. 1899), was in full force and effect. Under this statute we have ruled that when the money of the wife is invested in lands (either as full or partial consideration thereof) without the written assent of the wife, a resulting trust arose in favor of the wife (and of course in favor of her heirs) to the extent of the money so invested. Whether or not this construction should have been given to the peculiarly worded proviso, in said section, we need not now discuss. It had been so long so ruled that in Moss v. Ardrey, 260 Mo. l. c. 604, et seq., supra, the writer took it as settled. What our views might have been had we been dealing with it as an original proposition is immaterial. So that, inasmuch as no written assent of the wife appears for the use of the wife’s money here, this case upon this theory would, fall within the line of cases cited in the Moss case, supra. And this is the contention of the respondents.

III. But grant it that it requires the written consent of the wife, for the husband to possess himself of his wife’s personal property, and further grant it that his agency for the wife imist have this same written asseiA, yet on the facts in this case, do the plaintiffs have an interest in these lands ? Of course, if Heathman and wife were not tenants by entirety they did have an interest. In other words if Mrs. Fannie Heathman could enforce a resulting trust, the plaintiffs, her sole heirs, could do the same. And in the discussion of this, the real question in this case, we shall leave'out of consideration the right of the wife to contract with her husband. We shall not consider the question, as to whether or not the husband and wife could have agreed to each put in money in the land, and have made a deed which would create an estate by the entirety. Personally we think that after the Married Woman’s Acts such a contract could have been made, and that the establishment of that contract would show the intent of the parties and destroy the theory of a resulting trust. But as said, we do not pass on this'question, and as this is an action in equity, we can, so far as the evidence is concerned, separate the wheat from the chaff upon vital issues, and exclude the irrelevant evidence from consideration here.

This land was bought before Fannie Heathman got her $1572 from her father’s estate. It is fair to assume from the evidence that she intended to put her money into this land when she got it. The land of the father was sold in October, 1901, and the deed from Hale was made in November, 1901, but not delivered until January, 1902. The greater part of the consideration for the deed was paid upon its delivery, which was after the wife got her $1572 for the interest she had in her father’s land. So run the facts as to payments.

The foregoing, however, are not all of the facts. The land purchased belonged to a young man who was in the West at the time. His father was his agent for the sale of the land. - Marion Dale, the father of Homer Dale, and the agent of Homer Dale, was a witness in the case. The importance of the witness is evidenced by the heated contest of counsel imthe course of the examination of the witness. The witness was a very old man, and vigorously cross-examined, but when his testimony is read from beginning to .end, it is fairly stated in an excerpt therefrom, thus:

“Witness: Will I be permitted to tell what the conversation was between Mr. Heathman and his wife and me.

“Yes, sir.

“A. We talked the matter over about the deed and they both said they had money to put in the land, and they wanted it fixed so if one died the other would get it, and I suggested that they have a joint deed drawn, and they both agreed to it, and Mrs. Heathman said go ahead and have it drawn that way; that was the way she wanted it and me and Mr. Heathman went to Clarence that evening and had it drawn that way.”

The witness had. previously testified that Mr. and Mrs. Heathman had examined the farm, and had thereafter come to see him as to the price, and on the same day had agreed to buy it. A few days afterward he went to their then home, on the old Larrick place, and asked them, about how they wanted the deed to be made. From liis testimony it clearly appears that the deed was made just as the purchasers desired it to be made. To my mind it is quite clear that husband and wife had previously agreed to this course, but this matter we leave' out of consideration. The testimony of Marion Dale makes it clear that the husband and wife were buying this property; that both were putting money into it; that they wanted it fixed so that the. survivor would get it all; that they directed the seller, through his agent, so to make the deed; that the seller did make the deed in pursuance to a joint request and direction of the purchasers. If these be the facts, and we are satisfied that they are, then we do not have an agency of the husband for the wife, nor do we have a contract between husband and wife, for consideration. We simply have a contract between buyers and sellers. Mrs. Heathman was as much a buyer as was her husband, and the two buyers, as between them and the seller, had the right to direct the devolution of title. In this situation it would be immaterial as to who checked out the funds. Mrs. Heathman was investing her own funds, and all parties so understood it. As a party to the contract of purchase, she had a right to agree upon the form of conveyance, and when the seller made to her the conveyance which she desired, both she and her heirs are precluded from questioning the character of such conveyance. It is clear to us that the intent of the two purchasers of the land involved was to create an estate by the entirety, and that they so contracted with the seller. In a case like this the intent is a vital matter. This evidence tends to show that Fannie was investing her own money, and not that her husband had gotten possession of it without her written consent, and was using it for his own benefit. That question, i. e. the use of the •wife’s money without her written assent, is not really in this case. Here we have husband and wife purchasing a farm (each putting money therein), and in the course -of their contract of purchase directing the form of convey1? anee that they desired.. These facts corroborate-the deed,''-' rather than tending to establish a resulting trust.

Had Mrs. Heathman made the purchase of the farm herself, and invested her own money therein to the full extent of the consideration, there would be no question that she, as the purchaser, could have had the deed made in the present form, and it would bind her. [Haguewood v. Britain, 273 Mo. 89.] The mere fact that the two were purchasers and jointly directed the form of the deed cannot change the situation. The Haguewood case, supra, controls this case. We conclude that the record fails to establish a resulting trust, and the judgment nisi is reversed, and the cause remanded with directions to enter judgment for defendants.

All concur.