Sonnenfeld v. Rosenthal-Sloan Millinery Co.

ROT, C.

— This suit was instituted July 13, 1905, in the circuit court of the city of St. Louis and comes here on plaintiff’s appeal from a judgment sustaining a demurrer to the third amended petition which is as follows:

“Plaintiff by leave of court files this her third amended petition and for cause of action states, that the defendant is a corporation duly organized under and by virtue of the laws of the State of Missouri.

“That on July 10, 1894, I. B. Rosenthal Millinery Company, a corporation duly organized under the laws of the State of Missouri, executed and delivered to plaintiff its negotiable promissory note, 'whereby said company promised to pay to the order of plaintiff, for value received, on demand, the sum of ten thousand, four hundred and seventy and 40-100 dollars with interest from date at the rate of six (6 per cent) per cent per annum.

“That on November 10,1894, the said I. B. Rosenthal Millinery Company paid to plaintiff all interest due on said note.

“That on the 1st day of January, 1900, the corporation name of the I. B. Rosenthal Millinery Company was changed and the name the Rosenthal-Sloan Millinery Company was adopted, and that the Rosenthal-Sloan Millinery Company, the defendant herein, is the same corporation which was formerly known as I. B. Rosenthal Millinery Company.

‘ ‘ The plaintiff further states that she is unable to file said note with her petition because of the fact that the defendant, through its officers, agents and servants, in 1896, obtained possession of said note wrongfully, fraudulently, without paying any consideration therefor, and without the knowledge or consent of plaintiff. That upon direction of defendant, said note was abstracted from a safe-deposit box where it had been placed by plaintiff, by one of the agents of defendant, and by said agent delivered to defendant, and defendant has since said time.wrongfully retained possession of said note.

“Plaintiff states that during the years from 1896 to 1901 inclusive, she at various times and occasions discussed with the president of the defendant the payment of said note; that said officer of defendant frequently stated to plaintiff that it was not convenient to pay said note, assured her most earnestly that she was entirely safe and would be paid, and further stated to plaintiff that even if said note was not paid within ten years, that still it would be a good note, because the Statutes of Limitations would never be pleaded against said note as a bar to same, and plaintiff did not sue on said note because of said statements, until as hereinafter stated.

“Plaintiff further states that the president of defendant company, during all of the years above mentioned, was I. B. Rosenthal; that the said I. B. Rosenthal is the brother of plaintiff; that during the conversation as aforesaid which she had with the president of defendant, her brother, I. B. Rosenthal, with reference to said note, the payment thereof and the Statute of Limitations, that the president of defendant, her brother, with the intention of decéiving and defrauding plaintiff, and causing her to lose her legal rights against the defendant with reference to said note, the said president of the defendant always referred to said note as “my note,” and the said president was so earnest in his request to plaintiff at the various times that they discussed said note, that the plaintiff, his sister, should not proceed against her brother on “his note,” that the president of defendant finally succeeded in causing plaintiff to believe that it was tbe note of her brother, I. B. Rosenthal, and not the note of I. B. Rosenthal Millinery Company, this defendant.

“That plaintiff and her brother, I. B. Rosenthal, during the years above mentioned showed all the love and affection due from a brother and sister towards each other, and plaintiff relied implicitly upon the statements made to her by her brother, I. B. Rosenthal, because of her love for him and her confidence in him.

“Plaintiff further states that during the fall of 1901 she went to the establishment of defendant and made a peremptory demand for the payment of said ■ note of her brother, I. B. Rosenthal, being under the impression from the many false statements made by her brother to her, that her brother I. B. Rosenthal was the maker of said note. That the said president of defendant, acting for and on behalf of defendant, had deliberately, intentionally and falsely misstated the fact as to who was the maker of said note in order to defraud his sister, and in order to protect his corporation, this defendant.

“That at the time of said demand the said I. B. Rosenthal, the president of defendant, refused to pay, and the plaintiff, intending to bring suit on said note, went to the safe-deposit box for said note and then discovered that the note was not in said box where it had been placed by her. That plaintiff ascertained at that time that defendant had possession of said note and had been in possession of same for several years, and plaintiff made demand on defendant that the same be delivered to her, which demand was refused by defendant, and then plaintiff asked of defendant that she be allowed to see said note and this request was refused by defendant. The defendant finally stated that it did not have said note, and refused to tell where said note could be found, and'plaintiff asked'all of the agents and business associates of defendant whom she believed had knowledge of the whereabouts of said note, but none of them gave her any information, though all of said parties knew where said note was, and one of the parties, a business associate of defendant, to whom she applied for information, had said note in his possession at this time and was holding same in order to protect defendant from plaintiff.

“That being unable to locate said note and get possession of same or even to see it, the same being in possession of defendant, or its agents, the plaintiff in September, 1902, instituted suit on said note, and that suit was against her brother, I. B.’Rosenthal, because her brother had frequently stated it was his individual note, and not the note of defendant, and plaintiff believed that statement of her brother.

“That defendant intended to defraud plaintiff by taking possession of said note and placing- it where the plaintiff could not find it or see said note. That after said suit had been instituted by plaintiff on said note of ($10,470.40). ten thousand four hundred and seventy dollars and forty cents, against I. B. Rosenthal, the defendant fraudulently and intentionally concealed from plaintiff for more than two years the fact as to the maker of said note, while said suit was pending in court against said I. B. Rosenthal, and defendant only permitted plaintiff to know the truth with reference to the maker of said note in March, 1905, after said note, from its face, was barred by the Statute of Limitations.

“The defendant knew that its president had fraudulently deceived plaintiff as to who was the maker of said note, and knew that its president by false statements had caused her to sue the wrong party, and defendant took fraudulent advantage of plaintiff by closely guarding said note from her, and defendant knew that its president was protecting it from being sned by causing plaintiff to sue him and by defending said suit, and knew that its president was defending in court, in its behalf, the suit which had been instituted on said note against him as an individual.

“That during the time from September, 1902, to March, 1905, while the president of defendant was contesting in the courts with plaintiff the suit which she had brought against him, the defendant, the real maker of said note, had said note in its possession or under its control, and refused to let plaintiff see said note, or to give any information with reference to it, and defendant used all possible means to prevent plaintiff frbm learning the truth about said note, and by its action the defendant intended to defraud plaintiff of her rights with reference to said note, and encouraged its president to make defense in court against the suit which plaintiff had instituted against him on said note. That the president of defendant, by false statements, created a condition with reference to said note to the great injury of plaintiff, and the defendant knowingly accepted the benefits which accrued to it by reason of said false statements of its president.

“That defendant knew that its president was making false and fraudulent statements with reference to said note; and defendant encouraged him in the making of such false statements, and the defendant received and accepted all of the benefits accruing to it because of such false and fraudulent statements.

“Plaintiff further states’that no part of the principal of said note has ever been paid, and interest paid only to November 10, 1894, and that the whole thereof remains due, together with interest thereon from November 10, 1894.

“Therefore plaintiff prays judgment against the defendant for the sum of ten thousand, four hundred and seventy and 40-100 dollars with interest at the rate of,six (6 per cent) per cent per annum from November 10, 1894, and for her costs.”

I. We think that so far as the petition pleads an estoppel, it furnishes the answer thereto. It is useless to say that plaintiff was lulled into a sense of security by the promises of defendant not to plead the Statute of Limitations, for the petition states that plaintiff did bring suit within the time allowed for bringing the suit.

II. On the other branch of the case we think the petition states a good reason why the Statute of Limitation is not available to the defendant.

It appears from the petition that defendant wrongfully got possession of the note and withheld it from plaintiff and refused to allow plaintiff to see it. Plaintiff then thought that the maker of the note was I. B. Rosenthal. She brought suit on the note within the statutory period against I. B. Rosenthal, who was the president of the defendant. The petition states that defendant knew of the pendency of that suit from September, 1902, to March, 1905, and during that time refused to let plaintiff see it, and used all possible means to prevent her from learning the truth about it.

Revised Statutes 1909, section 1905, says: “If any person, by absconding or concealing himself, or by any other improper act, prevent the commencement of an action, such action may be commenced within the time herein limited, after the commencement of such an action shall have ceased to be so prevented. ’ ’

When plaintiff instituted her suit against I. B. Rosenthal in September, 1902, she thought he was the maker. It makes no difference that she once knew who the maker was and had forgotten or been misled about it. She had a right to the possession of the note. The defendant knew the plaintiff was suing the wrong party.

It is true that the defendant was not hound under the law to furnish the plaintiff information, hut it was bound to give her up the note which belonged to her, and which had on its face all the information she needed. The questions arising under section 1889 with reference to actions for relief on the ground of . fraud should not be confused with the question here under discussion. When defendant knew that plaintiff was laboring under a mistake as to who was the maker of the note, whether that mistake arose from forgetfulness or otherwise, its refusal to surrender the note or to let her see it was an improper act, which prevented the bringing of the suit.

In Battle v. Crawford, 68 Mo. 280, it was held that the false and fraudulent representation did not prevent the bringing of the suit. But in this case the act of the defendant was improper and it did prevent the bringing of the suit.

The judgment is- reversed and the cause remanded.

Blair, G., concurs.

PER CURIAM.

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

All the judges concur.