Werckmann v. Taylor , 112 Mo. App. 365 ( 1905 )

GOODE, J.

Plaintiffs, Caroline Werckmann and Rose L. Downey, are the children and residuary devisees of George O. Werckmann, deceased. Joseph F. Downey is the husband of Rose L. Downey. Said George C. Werckmann died testate in the city of St. Louis in Octo>ber, 1899, having appointed the defendant, William H. Taylor, executor. The will devised to his two daughters (plaintiffs) two houses and lots on South Broadway in the city of St. Louis; Numbers 3942, 3944. For two years or more after he qualified as executor, the defendant attended to the collection of the rents of said properties ; he states, by the direction and authority of the devisees (plaintiffs); but they say with their consent for the first year and against their will for the second year. He gave a statement to the devisees January 27, 1902, showing that he had collected rent to the amount of $2,094.55 and had credited himself with $1,004.95, in part disbursed for expenses incurred in caring for the property, paying taxes and other items, and in part retained for his own compensation. This left a balance of $1,089.60 due the two' daughters as devisees and owners of the premises. His statement also showed he had paid each of said parties $544.80 in cash, thus balancing the account. The disputed items of the account are these: Plaintiffs say the defendant charged them with $118.42, general and specific taxes on the premises for the year 1900, and deducted that sum from the rents, ’ when in truth he had paid said taxes as executor out of the general assets of the estate and taken credit for the payment in his final settlement as executor. If this was true and the defendant was allowed to deduct the sum paid for taxes from the rent collected, he would receive two credits for the same disbursement. The latter credit would be erroneous, because he paid the taxes out of the assets in his hands as executor and not out of the rents collected as agent for the two daughters. Defendant retained $200 out of the rents collected, for which sum he gave himself credit in his statement, designating it as compensation for “fees, advice and services.” The plaintiffs contest this credit, asserting that they never employed the defendant to give advice or render any service except as executor and for which he would he paid by his commissions as executor. It is to be remembered that this is not a controversy over a settlement in the probate court, but over a private account between the plaintiffs and the defendant as their agent. The defendant is in the fire insurance business and is secretary of the Odd Fellows Hall Company; but he testified that he was familiar with the law and especially with probate practice. The advice he gave as stated by himself, was of a business nature — instructing the two daughters how to manage their affairs after their father died. He swore they were very ignorant of business, and begged him to take charge of their affairs, promising to pay him reasonable compensation. The deceased father of the plaintiffs left two sons who were practically disinherited in favor of the daughters, and this circumstance engendered a great deal of family bitterness. The defendant said he gave the daughters advice about their dispute with their brothers, about the title to a bond left by their mother, and a case in the police court growing out of an assault and battery committed by the brothers on the sisters. In short, the advice for which he claimed compensation was instruction regarding business matters and family troubles. The services for which he claimed payment and the right to retain the two hundred dollars, were helping the daughters find a house to live in, driving them around in his buggy while looking for a house, buying a cooking range for them, getting an asbestos back for the range, and similar matters; we cannot recite them all. The third item in dispute is the sum of $104.73 retained by defendant as commission on the rents collected by him; that is, five per cent of the amount collected. The contention of the plaintiffs was that he had no> right to retain that sum, or all of it; as he acted against their will in collecting the rent during the second year, and agreed to do so gratuitously.

The answer accords with the ahoye statement. It alleges that Caroline Werckmann and Rose L. Downey, on account of their ignorance of business matters and methods, employed the defendant to give them advice and look after their affairs, promising him liberal compensation and that the services and advice of the defendant were reasonably worth $200. Another paragraph of the answer pleads that on January 27, 1902, defendant rendered an account to his two principals or clients, showing the amount of rents collected, his charges in the way of commissions and for advice and services, and that they assented to the compensation he had credited himself with and said his account was perfectly satisfactory, after they had gone over the same, item by item. Besides those defenses the answer pleaded two counterclaims, one against each of the daughters for the sum of $24.30. These counterclaims were founded on an allegation that on January 27, 1902, when the supposed account stated was rendered and assented to, defendant paid to each of his principals the sum of $569.10; for the balance due her undivided half interest in the rents collected by the defendant; whereas, the true balance going to each principal was $554.80; that the excess of $24.30 was paid by mistake. Judgment was prayed for it. In support of the counterclaim the defendant testified that he was in the habit of giving the women small sums of money, ranging from five to twenty dollars, whenever they asked for it, and having failed to keep an accurate account of the sums thus paid at different dates, he inadvertently overpaid them in the final settlement of accounts.

The case was tried without a jury. At the conclusion of the evidence the court passed on certain declarations of law and rendered judgment for the plaintiffs for the $200 retained by the defendant as commissions for his advice and services, but disallowed their demand for the sum retained by him as commissions on the rent collected and the sum they alleged he had credited himself with twice, once as executor and once in his private capacity. The court found against the defendant on the two counterclaims.

Complaint is made of the mode of procedure followed in disposing of the counterclaims. The first judgment in the case was entered June 11, 1901. By mistake the court made no finding and entered no judgment on the counterclaims that day.

Motions for a new trial and in arrest of judgment were filed by the defendant, which were overruled July 5, 1901. On July 20, 1901, the defendant filed his affidavit for an appeal to this court and on that day the court granted the appeal. Afterwards on August 9, 1901, during the same term, the circuit court set aside its order granting an appeal and entered judgment in plaintiffs’ favor on the counterclaims. To this ruling the defendant at the time objected and excepted. Thereafter on August 9, 1901, the circuit court again entered an order granting the defendant an appeal to this court.

The controversy on this appeal is confined to the item of $200 retained by the defendant as pay for his advice and services; because that ^was the only item on which the court below ruled against the defendant (appellant). There was a square conflict of testimony as to whether the defendant was employed by the two women to give advice or render services in connection with their affairs. The women contended that defendant was not engaged to collect the rents and was entitled to no commission on the collection, at least for the second year. This issue the court decided against them. But as to defendant’s right to compensation for services and advice he found in their favor; and as the testimony was contradictory the finding must be accepted as settling the facts. The court gave two declarations of law bearing on that part of the case. One declaration was that in order for the defendant to maintain his claim it must appear the plaintiffs employed him to give advice and render services, and that, pursuant to such employment, the defendant gave advice and rendered services reasonably woth $200. The other declaration dealt with the stated account alleged to have been rendered by the defendant to the two1 women and approved by them. The court declared that if the defendant called at the plaintiffs’ residence for the purpose of settling his account, and submitted the account offered in evidence, and if plaintiffs and defendant went over said account, and plaintiffs knew defendant had charged them for advice and services and agreed.that said charges were satisfactory and the account correct, then the plaintiffs were not entitled to' recover, SO' far as that part of their demand was concerned. The latter instruction was given at defendant’s instance and, of course, he cannot complain of it. Besides, it is correct. The first one was given at the instance of the plaintiffs and, we think, is sound law.

The transcript of the judgment in this case shows a judgment in plaintiffs’ favor for $200 entered June 7, 1904. The entry contains no reference to the counterclaims. It is recited in the defendant’s abstract of the record that the court revoked the first order allowing an appeal to this court and on August 9, entered judgment on the counterclaims. The contention of the defendant’s counsel is that the court was without jurisdiction to do this, because when it allowed the appeal, the jurisdiction of the cause vested at once in this court. This proposition is true in a sense; but not in the sense that the circuit court had no power to revoke an improvident order during the term at which it was made. The circuit court could do no act in the case so long as its order granting the appeal stood unrevoked. [State v. Musick, 7 Mo. App. 597.] But the court had power to set aside, during the term, the order allowing the appeal. [Oberkoetter v. Luebbering, 4 Mo. App. 481.] Doubtless this mile would be modified to the extent of not allowing sucb an order to be revoked if rights of third parties had attached meanwhile; conceding that such a thing can happen. The effect of granting an appeal on the jurisdiction of the court which makes the order, is like the effect of granting a change of venue on the jurisdiction of the court which grants the change. An order for a change of venue confers jurisdiction on the court to which the case is sent. [State v. Duesenberry, 112 Mo. 277, 20 S. W. 461.] Nevertheless, the court which awards the change retains sufficient jurisdiction to revoke the order at the same term. [State v. Webb, 74 Mo. 333; Colvin v. Six, 79 Mo. 198; State v. Bragg, 63 Mo. App. 22.] There may be some theoretical difficulty about this rule, but it is established in this state. In State v. Webb, the Supreme Court said the rule that after a change of venue is granted, the jurisdiction of the cause is lost to the court awarding the change, is to be understood as prevailing only while the order for the change remains in force; that the awarding court has power to correct its order for a new venue as much as it has power to correct any other during the term when it was made.

What, possibly, was an «erroneous procedure in this matter was not the revocation of the order allowing the appeal and entering judgment on the counterclaims, but failing to set aside the original judgment'and enter a single judgment, both on the plaintiff’s cause of action and on the counterclaims. There ought to be one final judgment in a case. However, no error was assigned in relation to' this point.

The judgment is affirmed.

All concur.