(232 S.W.) different from those alleged, except "alcohol- [ 437, 111 S. W. 109, 17 L. R. A. (N. S.) 1167, ism." Upon this testimony, plaintiff asked to amend by inserting among the words complained of "Elmyr (meaning plaintiff) is a defaulter." This was not permitted. The words are so different from the words alleged that they could not be held to be similar in sound or meaning; and the effect would be to insert another cause of action in a count already overcrowded. The testimony of Randolph Laughlin is that defendant said to him that Elmyr's sickness was due to alcoholism; that he had wrecked the company; had overdrawn; and the defendant wished to protect the boy from exposure. But he testifies that this conversation was a family matter, and he never repeated it, and that plaintiff never heard it until the time of the trial. This is evidence of use of some of the offensive words alleged. [2] It is not true that plaintiff drank whisky to excess, or was suffering from alcoholism. He had meningitis, with symptoms of nervous breakdown. Defendant had heard that it was called alcoholism. It is not a slander to accuse a man of drinking too much, or being ill with alcoholism. It is true that plaintiff had overdrawn his accounts with the supply company; that the company was in a crippled condition, and in danger of liquidation or bankruptcy, unless money was borrowed, and that it was desirable, and defendant desired, to protect the plaintiff, as well as the company and himself, from exposure, and to do this defendant was seeking to borrow money. The words used by defendant were substantially true. In making the statements to his son Randolph, and statements similar in substance (although not in the same words) to one or more intimate friends, defendant was influenced by disappointment, embarrassment, and anxiety, and perhaps overestimated the extent of the actual condition. He did not misstate it in kind or quality, and did not intentionally seek to injure the plaintiff. 124 Am. St. Rep. 786, 14 Ann. Cas. 742; Orcutt v. Century Building Co., 201 Mo. 424447, 99 S. W. 1062, 8 L. R. A. (N. S.) 929. The plaintiff fails to allege what the letters patent were, that there was any license under the letters, or any revocation of license, or cause therefor. cause therefor. He has undertaken to prove all these things. Defendant, in his answer, denies that he wrongfully manufactured and sold the 8,000 side bearings, or made a profit of $10,040 on them; he fails to plead any license to manufacture and sell, and avers that the profit on "the side bearings referred to" was not in excess of royalty credited to plaintiff on his account with the company. Both sides assume the matters of letters patent, license, and revocation as properly in issue, and submit the case on evidence as to those matters. The final notice of revocation was served December 28, 1915. A book entry of the company December 30, 1916, shows sales of 8,414 Joliet side bearings, for which plaintiff was allowed a royalty of 62 cents each. This would be 2,1032 car sets, which were sold at various prices not shown by the evidence. It does not appear that they were sold at a price in excess of the cost and the royalty allowed to plaintiff. The evidence also fails to show grounds for revocation of the license. Finding on this claim for defendant. Exhibit B-Paragraph No. 12. Plaintiff claims to have executed six notes, one to Roth and the others to the Northern Hotel Company, and to have pledged his stock in the hotel company to secure same, for accommodation of defendant, and that defendant wrongfully converted the stock to his own use. Plaintiff asks for an accounting for the converted stock, and for the amount of the notes,. for which he claims he is liable. his own. Defendant admits the execution of the notes by plaintiff, but avers that plaintiff received the money on three of them, and they were secured by defendant's stock, and had to take Plaintiff was unable to borrow money at them up and have them assigned to him. He once on his recovery and return from Califor-alleges payment of the other notes by him as nia. It does not appear that he lost credit in any banking institution where he had had credit before. He did, in a short time, obtain financial backing in a business that became very profitable to him. J. B. Johnson refused to lend him money at first, but has since done so. It does not appear that plaintiff suffered damage thereby. Thus, the special damage pleaded is not proven. Finding on this slander count for defendant. Exhibit B-Paragraph No. 11. This is a claim that the defendant, through the Supply Company, of which he was a stockholder, wrongfully manufactured and sold 8,000 side bearings under letters patent owned by plaintiff, making a profit of $10,040, for which plaintiff asks judgment. There is no objection for misjoinder of causes of action. It is difficult to see how a stockholder would be liable for the wrongful acts of the company. It was not his agent, or alter ego. It does not appear that he held the purse strings and controlled the business of the company, as in Phillips v. St. Louis & San Fran. R. R. Co., 211 Mo. 419 The note for $1,500 to Roth, and the two notes to the Hotel Company, one dated September 23, 1909, for $1.000. and the other dated June 3, 1910, for $1,500, were executed by plaintiff for accommodation of the defendant, and have been paid by the defendant. For the note dated April 26, 1910, to the hotel company for $2,000, the company issued its check for the same amount to the plaintiff, which he indorsed and deposited in the bank to his account. On the same day he issued his check for the same amount to the hotel company, which was indorsed by it and placed to defendant's credit with the company. Thus, defendant received the benefit of the loan upon the note. The note has been transferred to him since the answer was filed. It is therefore extinguished. The defendant has merely paid to the company what it loaned for his benefit, and is out nothing. Plaintiff's check to the company was balanced by his check from the company; and, since his note, left outstanding, has been taken up by defendant, for whose benefit it was issued, and is thereby extinguished, plaintiff is out nothing. He is not entitled to the item of $2,000 on the account, and neither party is entitled to recover on the note. The notes, one of March 22 (not August 22), 1910, for $1,500, and the other dated May 1, 1910, for $2,500, both payable to the Northern Hotel Company on demand, with 5 per cent. interest from date, were signed by plaintiff, and he received the proceeds. They have been assigned to defendant and he is entitled to recover of plaintiff on them with interest at 5 per cent. less the credit hereinafter allowed. Stock in the Northern Hotel Company was pledged as collateral for these notes. All of it belonged to the defendant, except 15 shares, which are claimed by each party. Plaintiff testifies that he had $1,200 or $1,500 in stock pledged as collateral for these notes. Defendant, in his statement (Exhibit 39), states that he gave plaintiff 13 shares, and later, in 1908, transferred 15 shares of his own stock to plaintiff's name, and permitted him to draw the dividends until January, 1916, when he (defendant) had them transferred to his own name; that at the time the notes were executed (in 1910), plaintiff owned only 3 shares, and owned 12 others for a few months only; and that plaintiff had sold 12 shares to one person, and 3 to another. This is conflicting and uncertain. We may fairly conclude that plaintiff pledged 15 shares of the par value of $1,500, which defendant, as president of the hotel company, had control of, and had transferred to his own name. They had stood in plaintiff's name for some 8 years, and, from the evidence, belonged to him. The acts of the defendant amounted to a conversion. The shares were of the value of $1,950 at that time, and that amount should be allowed to plaintiff as credit upon the said notes for which he is liable, as of the date of January 15, 1916. That satisfies the older note, that of March 22, 1910, and leaves a balance of $13.75 in favor of plaintiff to apply as of January 15, 1916, on the note May 1, 1910, for $2,500. Defendant should amend his answer to conform to the proof, by alleging assignment of the hotel company's notes to him. The Counterclaims. These have not been stated separately or in order in defendant's answer, but rather in connection with the different matters alleged in the petition to which the counterclaims relate. It is necessary to specially notice those only upon which the defendant, in argument, insists he is entitled to judgment. The others may be considered as found against defendant. The Hester L. Pfister Checks. These are 18 checks for $100 each. It sufficiently appears that, upon receiving each of these checks, plaintiff procured exchange for it, and forwarded it to Mrs. Pfister, as was intended. The Notes. Defendant is entitled to recover on the note to Bessie Laughlin, indorsed to him, dated July 14, 1909, for $2,500, payable February 1, 1910, "with interest at no per cent. per annum." This bore no interest till maturity, but bears interest at the legal rate of 5 per cent. since maturity, February 1, 1910, and amounts to $3,587.83. Defendant is entitled to rècover on the note to Northern Hotel Company, dated May 1, 1910, for $2,500, with interest at 5 per cent. per annum, less credit of $13.75, January 15, 1916, leaving balance at that time $3,199.44, now amounting to $3,638.90. Defendant is not entitled to recover on any of the other notes specified in his answer, or in any other counterclaim. The Pfister Contract. Defendant is entitled to allowance under this contract for moneys spent for farm improvements and betterments $5,045.29, less a credit of $2,000 as a gift, which defendant has conceded, leaving $3.045.29, with interest at 6 per cent. from the filing of the answer, June 20, 1917; this amount is $3,285.86. The Overdrafts. The evidence shows overdrafts on plaintiff's signed to defendant, amounting to $4,801.92, own account with the supply company, asless a credit of Koban motor, $60.50, leaving $4,741.42, with interest from June 20, 1917; the amount is $5,115.98. Checks on Joliet Railway Supplies Company On these checks, those on account of water power, amounting to $2,349.05, have been taken into account elsewhere, under Exhibit B, paragraph 5. A long account on the books of the company in the name of the defendant included many items for the individual use and benefit of each of the parties. Plaintiff, as manager of the company, directed the items to be so entered; defendant consented to this, and had knowledge from time to time in a general way of what the account contained, although he did not examine it closely until about November, 1914. A large part of the items were for expenses on the farm and upon the dam, for the use and benefit of both, as to which there was no effort to discriminate between what was for one and what was for the other. The defendant has admitted in his correspondence that many of But his admissions the items were for him. are general as to classes of items, without specifying particular items. He sought to get a statement from plaintiff, who was likewise general, and too indefinite to satisfy defendant or any one else. From the items as stated in the account and the correspondence with reference thereto, probably a considerable part should be charged to the plaintiff, while a considerable part should remain charged to the defendant. But there is nothing to show any line of division. There is no testimony as to the particular items. The testimony of defendant and his witness, Mrs. Shultz, in support of this claim furnishes no criterion by which the items. chargeable against the plaintiff can be identified, but merely presents their conclusions upon the matter, without evidence upon which it is based. However sincere it may be, it is mere opinion, without any basis of fact. Without evidence upon which to base a finding of any amount, even approximately, the (232 S.W.) finding must be against the defendant, upon whom is the burden of proof. Findings and Decree. Upon the pleadings and the evidence heretofore submitted, the court finds the issues in part for the plaintiff, and in part for the defendant, as follows: Upon the account set out in the petition as Exhibit A, the plaintiff is entitled to debits against the defendant, amounting to $32,504.25, and upon said account defendant is entitled to credits against plaintiff amounting to $23,877.85, leaving a balance due thereon from defendant to plaintiff in the sum of $8,626.41 amounting, with interest, to $9,445.91. Upon the claims set out in the different paragraphs of Exhibit B in the petition, the plaintiff is not entitled to recover on paragraph or claim No. 1, because the same has, upon the trial, and before submission hereof, been dismissed, and the court finds in favor of defendant on claims or paragraphs numbered 2, 3, 4, 6, 7, 8, 9, 10, and 11; and on paragraph or claim numbered 5 defendant is indebted to plaintiff in a balance upon an accounting as to the matters therein specified amounting with interest to $2,185.77; and, upon paragraph or claim numbered 12, the plaintiff is entitled to an allowance for 15 shares of stock in the Northern Hotel Company wrongfully converted by the defendant to his own use on the 15th day of January, 1915, of the value of $1,950, to be credited as of that date, in satisfaction of note of plaintiff to said hotel company for $1,500, dated March 22, 1910, and to the amount of $13.75 upon the note for $2,500, dated May 1, 1910, as hereinafter provided; and otherwise the court finds for defendant on said paragraph or claim numbered 12, and that the plaintiff is entitled to no other or further relief upon the same. Upon defendant's counterclaims alleged in his answer, the court finds as follows: Defendant is entitled to recover of plaintiff upon plaintiff's note to Bessie Laughlin, dated July 14, 1909, for $2,500, the sum of $3,587.83; and on plaintiff's note to Northern Hotel Company, dated May 1, 1910, for $2,500, $3,638.90. And defendant is not entitled to recover on the other notes mentioned and set out in said counterclaim, or any of them. Defendant is entitled to recover under the contract between the plaintiff and Carlo Pfister for improvements and betterments of farm as set out in the answer, a balance of $3,285.86. And defendant is entitled to recover of plaintiff for overdrafts on plaintiff's account with the Joliet Railway Supply Company, assigned to defendant, $5,115.98. Defendant is not entitled to recover for any of the other overdrafts or any of the other claims or counterclaims alleged by him in his to Roth and the Northern Hotel Company mentioned in the petition and the answer, and herein found to be satisfied. John W. McElhinney, Judge. 2. There were only two objections made and exceptions saved to the court's ruling during the production of the evidence, viz.: (1) "Mr. Gardner: Plaintiff asks to amend the petition by inserting on page 34 of said petition the following words after the word 'whisky': 'Elmyr (meaning the plaintiff) is a defaulter,' which said words were falsely and maliciously said about and concerning the plaintiff by the defendant at the Great Northern Hotel in the city of Chicago, state of Illi nois, in the early part of the year 1915, in the presence of J. B. Johnson and others." "Judge Harvey: Objected to as being out of time, changing the cause of action, and stating a separate cause of action. "Objection sustained, and exceptions to the ruling taken by plaintiff. "The Court: The motion to strike out the testimony will be overruled, as the evidence may be admissible for some other purpose." (2) "On redirect examination defendant offered in evidence the checks of June 1, 1901, Exhibit 52, and of June 29, 1901, Exhibit 53, and over the objection of plaintiff they were admitted, and plaintiff excepted." [3] The court correctly ruled these questions. As to the slander charge, the proposed amendment would have made the petition aver that defendant had charged in the presence and hearing of others, that plaintiff was a "defaulter"; that is to say, he had coma "defaulter"; that is to say, he had committed a crime for which he might be prosecuted criminally. The original petition made no such averment, but was drawn on an entirely different theory. [4] As to the two checks, whether they were proper items for accounting or not was in dispute, and they were properly admitted in evidence. that the court erred in giving defendant an In his motion for a new trial, it is averred allowance under the Pfister contract for money spent for farm improvements and betterments. In his brief, although admitting that said contract was pleaded in defendant's answer, he asserts it was not filed as an exhibit with the answer, nor introduced in the evidence. This is manifestly erroneous, for, while it may not have been filed as an exhibit, it was preserved in de fendant's additional abstract of the record, where it is set out in full as Exhibit 27, wherein it is recited, over plaintiff's signature, that defendant had expended for upkeep and other necessaries on the farm the sum of $5,000.45/29. evidence was not objected or excepted to, and [5] The introduction of said contract in it will not be reviewed by this court. The authorities in this state are unanimous on the point, and we cite only a few. Seeley v. Savings Ass'n, 67 Mo. App. 554; Amer. Met. Co. v. Daugherty & Mine La Motte L. & S. Co., 204 Mo. 71, 102 S. W. 538; De Reamer Appeal from Circuit Court, Lincoln Coun. We have given the record in this case careful attention, and the facts, finding, and decree of the learned trial court as well, and we are impressed with the manifest justice of the conclusion reached by him. Our minds run in the same channel as to the facts. We therefore approve the overruling of the plaintiff's motion for a new trial, and adopt said opinion as the opinion of this court, and affirm the decree. It is So ordered. RAILEY, C., concurs. WHITE, C., concurs in result. PER CURIAM. The foregoing opinion of MOZLEY, C., is hereby adopted as the opinion of the court. All concur; DAVID E. BLAIR, J., in result. WATTS v. MAYES. (No. 21847.) Action by W. W. Watts, administrator pendente lite of estate of Charles A. Mayes, deceased, against R. L. Mayes. Judgment for plaintiff, and defendant appeals. Affirmed. J. W. Powell, of Elsberry, and Abbott, Fauntleroy, Cullen & Edwards, and Curlee & Hay, all of St. Louis, for appellant. Sutton & Huston, of Troy, and Hostetter & Haley, of Bowling Green, for respondent. The maker, R. L. Mayes, was the son of the payee, C. A. Mayes. The latter died May 6, 1918, leaving a writing which purported to be his last will. The original was dated November 15, 1912; two subsequent writings were annexed to it as codicils November 21, 1916, and April 22, 1918, re (Supreme Court of Missouri, Division No. 1. spectively. The whole was admitted to pro June 6, 1921.) 1. Bills and notes 125-Note, payable one day after date, bears interest after demand for payment. It is a general rule that a promissory note, made payable without interest, bears interest at the legal rate after maturity; but, when the note is payable one day after date, interest is payable after demand for payment is made. bate by the probate court of Lincoln county as the last will of the decedent. Defendant was named therein as executor; and by its further provisions he was given a specific legacy of $5,000, and made one of the residuary legatees. He qualified as executor, took charge of the estate and inventoried it. Almost immediately thereafter a suit to contest. the will was instituted in the Lincoln circuit court, and thereupon plaintiff was duly ap2. Executors and administrators 434 (3)-pointed Maker of note without interest held liable pointed administrator pendente lite. The asto estate for interest pending action thereon, sets of the estate were turned over to him by though he was entitled to a distributive share. the executor, and he entered upon the disWhere a son gave a promissory note with-charge of his duties as such administrator. out interest to his father to evidence a debt, He instituted this suit November 22, 1918. and was by the father's will given a dis- The petition is in the usual form. The antributive share, the son could not resist pay-swer after admitting the execution of the ment of interest in action by administrator note, alleges that the amount named therein pendente lite on the note on the supposed represented the purchase price of a farm equity of offsetting the distributive share greater than face of note against the note, so greater than face of note against the note, so that no interest should be collected until settlement of the estate; and the fact that a will contest was instituted would not suspend interest, as such contest did not prevent payment of the note. bought by defendant from his father, and that one consideration for such purchase was an agreement entered into between them that the note given for the purchase money should not bear interest, and should not be paid during the lifetime of the father, nor after his death, except from the distributive 3. Executors and administrators122(2)- share of the defendant in his father's estate. Administrator pendente, lite under duty to It further alleges that plaintiff, as adminiscollect outstanding note of son of deceased. trator pendente lite, receipted for the note Where a son gave a promissory note to without interest; that he is not responsible his father, and was by father's will made executor, but on institution of will contest an to the heirs for interest; that he has no powadministrator pendente lite was appointed, iter and is under no duty to distribute the eswas both a prerogative and duty of the ad- tate; and that defendant owns unincumbered ministrator to collect the note. property subject to execution, exceeding in For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (232 S.W.) value $20,000, in addition to his distributive to suspend interest for one day only. Peirshare in his father's estate. The answer concludes as follows: "Defendant therefore asks the court to find that the note sued on is an advancement from the said Charles A. Mayes to this defendant as a part of the consideration for the purchase of the farm by the defendant, as heretofore stated, and that no interest is due on said note at this time, nor at any time before the final settlement of the estate of the said Charles A. Mayes, and that if a judgment be had for the face of the said note the said judgment shall not bear interest until the final settlement of said estate." point v. Peirpoint, 71 W. Va. 431, 76 S. E. 848, 43 L. R. A. (N. S.) 783, Ann. Cas. 1914C, 241. But in any event the holder of such a note is entitled to interest after demand of payment is made. Brown v. Brown, 124 Mo. 79, 84, 27 S. W. 552. [2] Appellant next insists that it would be inequitable to compel him to pay interest, and for these reasons: His distributive share in the estate, whether the will be sustained or not, is more than sufficient to discharge his debt to the estate; he is entitled to have such distributive share applied to the extinguishment of the debt; but he is prevented The reply is a general denial. Plaintiff from having it so applied by the pendency of offered the note in evidence and rested. De- the will contest-an interposing of the law. fendant introduced as a witness the scrivener It does not appear from the record that his who prepared the note for signature. She distributive share, when ascertained, will be testified in effect that at C. A. Mayes' direc-sufficient to pay his debt; whether it will tion she struck out some of the printed words or not, however, is wholly immaterial. on the blank form, and wrote in lieu of them the words "without interest." Defendant made formal offer of the entire record in the circuit court of the will contest case, but only the petition and summons appear in the abstract. This was all the evidence in the case; the facts set out in the first paragraph of this statement appearing from admissions made in the pleadings. The cause was tried without a jury. The court found the issues for the plaintiff, and assessed his damages at $15,175, the principal sum of the note, with interest thereon at the rate of 6 per cent, per annum from the date of the institution of the suit, and gave judgment accordingly. Defendant appeals. When the evidence was all in on the trial below, the question of advancement went out of the case. The only proof offered with respect to the nature of the transaction between the father and the son was the note, and it plainly evidences a debt and nothing Strictly speaking, he has no distributive share, and will have none until an order of distribution is made; and his debt, whether considered from the standpoint of his relation to the estate as a distributee, or as executor of the will, is an asset, and in the orderly administration of the estate must first be paid before any order of administration can be made. He has therefore no absolute legal right to have what he deems his distributive share set off against his debt (Green v. Tittman, 124 Mo. 372, 27 S. W. 391). and there is nothing in the situation disclosed by the record calling for the intervention of equitable principles. [3] In instituting this suit, the plaintiff, as administrator pendente lite, was clearly acting within the scope of both his prerogative and his duty (Union Trust Co. v. Soderer, 171 Mo. 675, 72 S. W. 499), and the pendency of the will contest in no way prevented defendant from paying his debt and thereby stopping the running of interest. The judgment of the circuit court is affirmed. BROWN, C., absent. PER CURIAM. The foregoing opinion of RAGLAND, C., is adopted as the opinion of the court. All the Judges concur. |