Summary
In Goldman v. Ashbrook, Mo.App., 262 S.W.2d 165, this principle was construed to mean that a plaintiff must establish his equitable cause of action both by pleadings and evidence before the Court may, in equity, proceed to consider and grant relief which would otherwise be legal; or, in other words, that the equity jurisdiction must first attach both under the pleadings and the proof.
Summary of this case from Jaycox v. BruneOpinion
No. 21910.
October 5, 1953.
APPEAL FROM THE CIRCUIT COURT, BUCHANAN COUNTY, EMMETT J. CROUSE, J.
M. J. Duvall, and Boyd Elliott, St. Joseph, for appellant.
Strop Strop, St. Joseph, for respondent.
The petition in this case states an action to recover a judgment for $5451.90 for money loaned to defendant for repairs and remodeling of her dwelling house and for an equitable lien on such real estate to secure the amount so due the plaintiff, together with an order of injunction to prevent any disposition of the property pending this suit. The petition also contains in the alternative a statement of the claim for a money judgment only, for the same amount. The court tried the case as one in equity, found the issues for the plaintiff, gave judgment for $5451.90 and decreed the same to be an equitable lien on the real estate described, subject to a deed of trust already of record, and assessed the costs against the defendant. No order of injunction was made. Defendant has appealed.
The substance of the material allegations of the petition are that Max James died on November 20, 1950; that during his life time and between May 12 and November 8, 1950, he loaned to defendant various sums of money, in the total amount of $5451.90; that it was agreed between James and defendant that defendant would execute her note for such total sum loaned, payable in certain installments with interest, and would execute a deed of trust on certain real estate described to secure such note; that before James died he demanded payment of such total sums due him, and demanded a note and deed of trust as agreed, with all of which demands the defendant failed and refused to comply; that since his death his executor, the plaintiff, made similar demands and defendant has failed and refused to pay the said amount due or to make a note and deed of trust as agreed. It was alleged that plaintiff has no adequate remedy at law; that, in the alternative, if, because of the death of Max James, plaintiff is unable to prove the agreement to make such note and deed of trust, he is entitled to a judgment for the sum of $5451.90. The payer was for a judgment for the amount due; that it be declared an equitable lien on the real estate described; that defendant be restrained and enjoined from disposing of any interest in said real estate pending this action; and, in the alternative, plaintiff asked for a money judgment against defendant for $5451.90, with interest from November 8, 1950, and for such further orders as the court may deem just and proper.
The answer was a general denial of the controversial allegations of the petition with the further averments that prior to May 12, 1950, Max James and the defendant were engaged to be married; that it was the suggestion of Max James that substantial repairs and remodeling be made to the house to make it better and more comfortable as a home for both after the anticipated marriage; that defendant did not have the means to make such improvements and Max James agreed that if defendant would permit them he would have them made and would pay for them; that but for the anticipated marriage she would not have permitted the work to be done on her house; that the marriage was prevented by Max James' death on November 20, 1950. Defendant alleged that for a long time before and after the engagement of marriage and during the time the improvements on her house were being made, she furnished Max James with his meals and a furnished room and treated him as a member of her family.
Before the trial defendant filed a motion for a trial by jury, stating that under the law and statutes in such case made and provided it was a question of fact for a jury whether plaintiff was entitled to a judgment. This motion was denied by the court.
The sole point raised on this appeal is that the court erred in denying the defendant a jury trial and lacked jurisdiction under the pleadings and evidence to render its decree as in an equity proceeding. Therefore, it is not essential to state the evidence in great particularity.
It was shown that Max James was a man between 80 and 83 years of age at the time of his death, and defendant was in her fifties; defendant lived in her own home with her son and daughter; they had known Max James for a long time and he held a mortgage on the home since defendant purchased it about 1948, which defendant had reduced from $2700 to $1600. He had operated a shoe store, a secondhand clothing store and, lastly, a loan business. He owned an apartment building in the basement of which he lived much of the time in order to attend the furnace.
For some time prior to his death he ate many meals at defendant's home and often occupied one of the rooms there. Defendant's evidence was that in the presence of her son and daughter and a friend. James proposed marriage and she accepted; that he suggested many repairs and substantial remodeling of the home which he said he would pay for so as to make a happier home for the two of them after the marriage, which was to take place when the work was completed; that he ordered and supervised the work, and accepted and paid the defendant's written orders brought to him by those who had completed their services or furnished materials. Many such orders, checks and receipts were admitted in evidence. An itemized account of the sums furnished by James and in his handwriting was admitted without objection. At the top of the paper appeared the signatures of defendant and her son, under which was written: "Tentative bal. full bal. to be established when work is completed. Remodel residence 1103 South 12th Street, St. Joseph, Mo." In the margin at the bottom of the first page of the account appeared the words: "This statement is correct. Sept. 11, 1950". Underneath appeared the signatures of the defendant and her son. Defendant's evidence was that James required this signed statement in order to know "where his money was going" and in so doing he was merely typical of his careful methods; that at no time did he mention a note or deed of trust.
Plaintiff's evidence was to the effect that after the death of Max James the undertaker delivered to the executor some papers found on decedent's person, among which were an unsigned note for $5451.90, dated November 9, 1950, payable to him in installments stated, and an unsigned deed of trust on defendant's home property described, in which defendant is named grantor, Abe Goldman (present executor and plaintiff) as trustee, and Max James as third party, and containing provisions that the deed was security for the payment of the note above described. The executor took the unsigned note and deed of trust to the attorney for the estate, who, in the executor's presence and hearing telephoned defendant, asking her to come in and sign the instruments, which defendant said she would do. The executor was permitted to testify, without objection, that the execution of the note and deed of trust was in conformity with what he, former attorney for decedent, understood was the understanding between Max James and defendant. Defendant admitted this conversation, except, she said she told the attorney she would not sign the papers as she did not owe the money.
Defendant's first contention is that she had a right to a jury trial because the court had no equity jurisdiction under the petition for the reason that it fails to state that the agreement for the note and deed of trust was made before the loans were made, or that the loans were the result of such agreement, or were in any way referable to the same. No attack was made on the petition before trial and its sufficiency is questioned for the first time after the judgment and decree. In such a situation not only are the facts alleged to be considered as true for the purposes of such attack, but the petition "is much more immune from attack than before verdict". Every reasonable intendment in favor of the petition will be indulged. Nahn-Heberer Realty Co. v. Schrader, Mo. App., 89 S.W.2d 142, 144. From the allegations that the loans were made and that defendant agreed to execute her note therefor and a deed of trust to secure the note, it is reasonable to construe such allegations to state that the agreement to make the note and deed of trust was a part of the loan agreement. Hammond v. City of El Dorado Springs, 362Mo. 530, 242 S.W.2d 479, 481.
The defendant insists that she was entitled to a trial by jury because the evidence failed to prove that defendant agreed to make the note and deed of trust if Max James would furnish the money for the repairs and remodeling of her house, thus leaving proof only of a legal cause of action for the recovery of a money judgment. Without restating the evidence hereinbefore set forth, we conclude that there was substantial proof that the agreement was for the money to be loaned for which defendant would execute and deliver to Max James her note and deed of trust on the property "when the work was completed".
Defendant next asserts that before plaintiff can recover in equity he must plead and prove that he has exhausted his remedies at law. The petition at bar is all in one count. As stated, it contains an action in equity to recover a judgment for money loaned and for an equitable lien on the real estate of defendant to secure the same, pursuant to an agreement for mortgage security on such property, and in the alternative, an action at law for the mere recovery of the money loaned. Formerly a petition could not partake of the attributes of both legal and equitable actions. Ebbs v. Neff, 325 Mo. 1182, 30 S.W.2d 616, 619. Under present Sections 509.060 and 509.110, RSMo 1949, V.A.M.S., considered together, a plaintiff can join in his petition as many claims as he may have against the defendant, as independent or as alternative, and whether legal or equitable, and he may set forth two or more statements of the same claim alternatively or hypothetically, in one or more counts, and when stated in the alternative, the pleading is sufficient if anyone of the statements, if made independently, is sufficient. Krummenacher v. Western Auto Supply Co., 358 Mo. 757, 761, 217 S.W.2d 473, 475.
It would appear clear to the trial court in the instant case that if the plaintiff should be entitled, in his equitable action as pleaded, to a judgment for the money loaned and an equitable lien on certain real estate of defendant to secure the same, that a mere judgment in his action at law for the money loaned would not afford the plaintiff complete and adequate relief. In fact there is no action at law conceivable that would adjudge in the plaintiff an equitable lien on real estate. 19 Am.Jur. page 151, § 163. Hence the court in this case, proceeding under the petition at hand and having jurisdiction of the subject matter and persons, properly undertook to try the case without a jury and as one in equity, subject to proof of the equitable features necessary to authorize a final disposition of the case as one in equity. Upon the proof of the plaintiff's right to an equitable lien, jurisdiction of the court to dispose of the case as one in equity was fully established. Krummenacher v. Western Auto Supply Co., supra; same case in Mo.App., 206 S.W.2d 991.
The equity jurisdiction of the court having attached under the pleadings and the proof, the court was authorized to dispose of both the legal and equitable aspects of the controversy and to do full and complete justice therein. Hallauer v. Lackey, 353 Mo. 1244, 1252, 188 S.W.2d 30. No right of the plaintiff to a trial by jury was violated.
Finding no error materially affecting the merits of the case, the judgment and decree of the trial court are affirmed.
All concur.