Opinion
No. 28222.
December 18, 1951.
APPEAL FROM THE CIRCUIT COURT, CITY OF ST. LOUIS, JAMES McLAUGHLIN, J.
Morton L. Schwartz, St. Louis, for appellant.
Oliver F. Erbs, and William R. Hirsch, both of St. Louis, for respondents.
Plaintiff-appellant's petition, filed in the Circuit Court of the City of St. Louis, sought to recover judgment against defendants on a promissory note, for principal, interest and attorney fees, and asked to have the same declared to be an equitable lien against certain real estate owned by defendants by the entirety.
Defendant Jacob Solomon was not served with process, but appeared voluntarily and filed answer effectively admitting all allegations of the petition. Defendant Vinnie Solomon's answer admitted the execution of the note, but denied any consideration therefor and denied all other material allegations of the petition.
Trial was had before the court in equity, without the aid of a jury, and resulted in a judgment in favor of plaintiff against Jacob Solomon for $2,682.88, the amount of the note and interest, with attorney fee in the amount of $1. The finding was in favor of defendant Vinnie Solomon, and denied plaintiff's prayer for an equitable lien. From this judgment plaintiff appealed.
Respondent urges that this court has no jurisdiction to hear this appeal because of the fact that the Notice of Appeal was mailed to the Supreme Court and the Transcript of the Record was approved by the trial court and respondent's attorneys for presentation to the Supreme Court. The Notice of Appeal recites that the plaintiff "appeals to the St. Louis Court of Appeals." No point is made in either brief that would invoke the jurisdiction of the Supreme Court and it appears from the Assignment of Errors filed that the appeal is properly to this court. Had the Notice of Appeal, Transcript and Briefs been filed in the Supreme Court, under Article V, Section 11, Constitution of 1945, and Sec 477.080, R.S.Mo. 1949, the case would have been transferred to this court. In this state of the record we hold that the cause is properly before this court, the mistaken designation of the appellate court in the transcript does not determine the jurisdiction, and the challenge to the jurisdiction is overruled.
The plaintiff-appellant presents two assignments of error: 1. That the court erred in finding for defendant Vinnie Solomon on the issue of consideration; and 2, in allowing only $1 as attorney fee.
The case having been heard as an equity case by the trial court, it is heard de novo by this court. Appellant urges that we should not follow the rule whereby deference is given to the findings of the court below because the trial judge evidenced hostility and prejudice toward plaintiff "which precluded the plaintiff from a fair and impartial determination" of the issues. We will consider this contention later as may be necessary.
The evidence is as follows: Isadore Solomon loaned $2500 to his brother Jacob Solomon, defendant, in Chicago, in 1946. The loan was in cash and no note or other evidence of debt was given by Jacob Solomon. In June, 1948, the note in suit was signed by defendants. It was due June 28, 1949, and was assigned to plaintiff for value after maturity.
The testimony of Isadore Solomon was that his brother, defendant Jacob Solomon, called him in 1946 and asked to borrow $2500, that he "said `Yes, what are you going to do with it?' and he (Jacob) said he was going to buy a building at 5515 Louisiana Ave., and I said `Here's your money, good luck to you'". In June, 1948, there had been some marital difficulty between defendants and Isadore testified "and I asked my brother if he and his wife would sign me a note to secure myself, and which they did, he signed it in my presence and I asked him to take it home and bring it back tomorrow, which he did" and when it was returned it had Vinnie Solomon's signature to it. Vinnie Solomon was not present when the money was loaned in 1946, was not present when the note was signed by Jacob on June 28, 1948, and was not present when it was delivered on June 29, 1948.
Defendant Vinnie Solomon testified that she never received any money at any time from Isadore Solomon, and that the money used in 1946 to buy the building on Louisiana Avenue came from the sale of a store operated by defendants, money received at the death of her parents and money she had at the time of her marriage; that they kept the money in a safety deposit box in the Woodlawn Bank in Chicago prior to the purchase of the Louisiana Avenue property. She said that she and Jacob Solomon were living in St. Louis in June, 1948, and went to Chicago so Jacob could help out in Isadore's store during an emergency, that while in Chicago they stayed at her brother's house. On cross-examination she stated that she signed the note in June, 1948, because her husband "came home and I was busy getting supper and he said `Here, sign this note, and hurry up and get my supper' and that's what I did." That she did not read it, she did not receive any money and he did not tell her what it was for or how much he owed, but that she saw the amount after signing it. She said that she asked where the money was and Jacob told her it was none of her business and that she would know later.
Appellant does not claim that Vinnie Solomon promised to pay or was liable for the payment of the $2500 at any time prior to the signing of the note in June, 1948. Until then it was the sole debt of her husband, Jacob Solomon. Appellant contends that the loan having been made without any specified date for payment, was due in June, 1948, that in the execution of this note the time for payment was extended and this extension of time constituted the consideration to bind defendant Vinnie Solomon to the payment of the note.
The execution of the note in question was admitted. It contained a recitation that it was given for value received. This places the burden upon defendant Vinnie Solomon to establish the defense of want of consideration. Hess v. Hessel, Mo.App., 102 S.W.2d 729.
Examining the testimony adduced at the trial there is little conflict as to the material facts in issue. The original payee loaned the money to Jacob Solomon without any written evidence or security "because he was my brother." Isadore further testified as to the making of the loan: "My brother at that time said that if they ever sold the building they would see that I got my $2500, and when I saw there was some trouble between my brother and her I figured the best thing to do was to get a note to secure myself, which I did." Throughout the testimony it did not appear that there was any contention or claim that the money was due, or that payment was being demanded in June, 1948, and it is not suggested by the evidence that the note was given to effect an extension of time for payment. On the contrary, it would appear from the testimony of Isadore Solomon that the debt was not due since the building had not been sold and that contingency was the only mention of a date for payment when the loan was made in 1946. It does appear that the only purpose in the execution of the note was for Isadore Solomon "to secure" himself.
Vinnie Solomon executed the note merely to secure the payee for her husband's pre-existing debt. She signed it after it had been signed by him and after all consideration had passed. At the signing she received nothing and the payee gave up nothing. Upon these facts we find that the defendant Vinnie Solomon has sustained her burden of proof, has established the want of consideration, and is not liable on the note. Will v. Trumpelman, Mo.App., 171 S.W.2d 732.
Appellant next contends that the trial court erred in allowance of only $1 attorney fee. This judgment was against Jacob Solomon only and he had not appeared in this court and has filed no brief. The note is as follows: "One year after date for value received we promise to pay to the order of Isadore Solomon Two thousand Five Hundred Dollars at 803 N. Wells with interest at 3 per annum after June 28, 48 until paid. And to secure the payment of said amount we hereby authorize, irrevocably any attorney of any court of record to appear for us in such Court, in term time or vacation, at any time after maturity and confess a judgment without process in favor of the holder of this note for such amount as may appear to be unpaid thereon, together with costs and ____ dollars attorney's fees, and to waive and release all errors which may intervene in any such proceedings, and consent to immediate mediate execution upon such judgment hereby ratifying and confirming all that _________ said attorney may do by virtue hereof."
From this it does not appear that the makers promised or agreed to pay a "reasonable" attorney fee as claimed by appellant. After the promise to pay the principal amount and interest, the instrument purports to authorize any attorney to confess judgment for principal and interest after maturity, "together with costs and ______ dollars attorney's fees". This cannot be construed to require the allowance of an attorney fee in any definite amount and there was no error prejudicial to plaintiff in the allowance of a fee of $1.
The trial court did not reach his decision upon this basis, but rather upon the finding that the fee of $1 was "the reasonable value of the services rendered." The result reached by the trial court on this point, having been correct, we are not concerned with the chancellor's reasoning, since we consider the matter de novo. Globe Indemnity Co. v. McDowell, Mo.App., 159 S.W.2d 822; Eisen v. John Hancock Mutual Life Insurance Co., 230 Mo.App. 312, 91 S.W.2d 81.
Next, we turn to the appellants contention that the trial judge exhibited "such passion, bias and prejudice * * * as to render his findings of fact improper" because of which appellant says we should not defer to his findings. Particularly, appellant claims that the allowance of a fee of only $1 is proof of this bias and prejudice. Since we have found the allowance of the fee to not have been error, it could not be said that the allowance revealed bias and prejudice. In fairness to the trial judge's finding that this amount was the "reasonable value of the services rendered" it should be said that there was some basis for such finding. There was no contention between plaintiff and Jacob Solomon. Jacob Solomon did not appear to have been within the jurisdiction of the court, but voluntarily appeared and filed answer that would have authorized entry of judgment as asked in the petition. In this state of fact the trial court was justified in finding a nominal fee for the services rendered.
Further on this point, because of the lack of conflict in the oral testimony, we have not found occasion or need to defer to the trial court's finding. It is only where there is conflict in the oral testimony, upon a material question of fact, that it is necessary to defer to the findings of the trial court. For this reason we find it unnecessary to consider further the claim of prejudice on the part of the trial judge.
The finding of this court upon the merits being in harmony with the judgment of the Circuit Court, the judgment should be and is accordingly affirmed.
BENNICK, P. J., and ANDERSON, J., concur.