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to the estate for rent so collected, but stated that he had kept no books of account, and did not know the amount of his indebtedness, but knew that it was a large sum, and that he had no money with which to pay it, and no means of paying it, and did not know how he could ascertain the amount of the indebtedness; that plaintiff asked defendant to prepare a statement of account, and that defendant agreed to do so with a view to attempting to arrive at the real amount due; that defendant deferred making such statement from time to time, and never did furnish same; that in none of the conversations had by the plaintiff with the defendant did the latter deny his liability to the estate or that he had acted as his mother's agent in collecting rent, but admitted at all times that he was the agent of his mother in the collection of rents, and that he owed her estate for same; that defendant did not claim at any time that he had used the money belonging to his mother with her knowledge or acquiescence, and did not claim that the accounts between them were settled at the time they occurred, and that he had only used the money in accordance with her wishes, and made no claim that he had collected her money and used it without any expectation on her part of its being repaid, and that at no time did he claim that there was an understanding between them that the money should be used as their common property without his accounting for same, or that the same was expended and consumed as the said Sarah Kemp saw proper, with her full knowledge and consent; that plaintiff had no information of any such contentions until served with a copy of defendant's answer; that in bringing this suit plaintiff relied upon the statements of the defendant that he had collected the rents for a long period of years, and that he owed his mother's estate for same, less the reasonable expenses incurred in keeping said farm in repair, in paying the taxes, and for the support of his mother, and that no defense was claimed by defendant prior to this suit, other than said deductions from money collected by him for purposes aforesaid, and in bringing this suit plaintiff relied upon the statements of defendant that he owed his mother for rents collected as aforesaid.

Kemp, a tract of land and other property near Lamonte in Pettis county.

By her first marriage Mrs. Kemp had one child, a daughter, referred to herein as Mrs. Hendrix; by her second marriage she had a son, George W. Kemp, the defendant; by her third marriage to James Kemp, of the same family name as her second husband, she left no bodily heirs surviving her. This will suffice to render intelligible necessary subsequent references to these parties.

Sarah Kemp died at the age of 95 years, at the residence of George W. Kemp, the defendant, at the town of Lamonte, in April, 1908. A few days thereafter the son went to Sedalia, the county seat, for the purpose of administering on his mother's estate. Preparatory thereto he consulted a lawyer, Mr. Geo. W. Barnett, who had represented him as counsel in litigated cases, and had been his legal adviser in other business matters for many years. They went to the office of the probate judge, who informed them that objections had been made to the appointment of defendant as administrator, and no further steps were taken at this time. A short time thereafter Mr. John D. Bohling, a lawyer of Sedalia, representing Mrs. Hendrix, the sister of the defendant, called at the office of Mr. Barnett and informed him that, as counsel for Mrs. Hendrix, he would object to the appointment of defendant as administrator, because the latter was indebted to the estate on various accounts. When, therefore, defendant next came to Sedalia, Mr. Barnett again accompanied him to the probate judge's office for the purpose of commencing the administration. Mr. Bohling appeared as attorney for Mrs. Hendrix and objected to defendant's appointment, on the ground before stated by him. The court thereupon announced that defendant would not be appointed, but that he would appoint Mr. Barnett as such administrator. The latter accepted and at once qualified.

It is not inappropriate in an equitable proceeeding, where all the facts are reviewed by the appellate court, that testimony explanatory of the circumstances under which the suit was brought should be somewhat minutely stated. This is best done in the language of Mr. Barnett, who, on the witness stand, testified as follows:

The Facts. Sarah Kemp, the administrator of whose estate instituted this action, inherited, at the age of 75 years, as relict

Plaintiff says he brought this suit because of defendant's delay in furnishing him with a statement of his account and of defendant's inability to arrive at the amount due other-I wise than by suit; that defendant is estopped and precluded from now making the defense that he is not liable for this rent, and from pleading the defense set forth in his answer, and it would be inequitable and unjust to permit him now to assert same.

"It was not stated that I was appointed administrator for the mere purpose of suing Mr. Kemp, but they wanted somebody who could get this rent by an amicable suit, if necessary. was notified by you gentlemen-I refer to you gentlemen representing the Hendrix side of the collect controversy that I must proceed to what Mr. Kemp owed. I at once started to work to try to get ettled at that time. I was not contemplating a suit right away. I asked Mr. Kemp to come over to my office to go over that matter, and he did. Mr. Kemp is hard of hearing, and I talked loud to him. had been his attorney in past years, not in many suits, but he had a suit with Mr. Fleming, and Yeater was on the other side, but I had never been his attorney in these matters

BARNETT v. KEMP

Mo.)

I

er's estate, so far as collecting the rent, and, if I had ever known there was such a question, I had forgotten it, and did not know it until you gentlemen called my attention to it. I said to Mr. Kemp: 'Now, I am not your attorney now; I have not rendered you any services; I went over there to render you some, but the court took an action that severed my relations as attorney, and there is no charge for what I ' have done, and I want to say now that whatever you say to me is not as your attorney. will have to hire an attorney-that is, if you want an attorney you will have to hire onebut I am against you instead of for you.''

You

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number of years; from that time on he was intimately acquainted with him; that he had advised him about other matters; that his relations with Mr. Kemp embraced a period of a great many years; that he was, during this time, an intimate friend of Kemp, and continued so; that he had read an account of the death of Sarah Kemp, the mother of the defendant, whom he had met at the latter's home, and really expected the latter to come down" -evidently to confer with him concerning an administration of the estate.

After this admonition Mr. Barnett proceeded to examine his former client and to elicit from him the information which constitutes the principal evidence for the plaintiff. It is, in effect, as follows:

"I said: 'Mr. Kemp what do you owe the estate, if you owe it?' He said he owed a large amount, more than he would be able to pay, unless it came out of the land; that he owed for 20 years' rent while acting for his mother; that he represented her in attending to her business, and, as her agent, he collected the rents for all these years, and he owed for it. I asked him to give me a statement of the rents, and he said he could not, he hadn't kept any books; and we talked about the complications that arose therefrom; and Mr. Kemp said there would be some taxes he had paid out, that he had paid the taxes, and had done something, I don't remember what, about keeping the place in repair, and he supposed he ought to be allowed something for his mother living with him. I said: "That will have to be determined, but what I am requesting you to do is to make out an itemized account; if you haven't any books use your memory, but where your memory don't serve you, take a kind of average of the rental of the place; you know Make out pretty well what you rented it for. an itemized statement of any other money you received, and take credit for whatever you think you ought to have for paying taxes and keeping it in repair; render me that statement and I will notify the Hendrixes, and possibly we can agree upon a settlement, and have it made some kind of a charge on your part of the real He said he estate.' He promised to do that. could not do that by himself, and wanted an attorney to help him, and I took him over to the Montgomerys and introduced him, and I think I stated the substance of what had been said. Afterwards the matter run on, and I wrote Mr. Kemp several letters and went to Lamonte, and, after some talk about grain in the elevator, corn in the bins, and rent on the barn, I asked him to act for me as my agent, and he did. And when I went up there again I called his attention to the statement he had agreed to make. The Hendrixes complained I was not moving fast enough. The matter kept going on, and they said there had been enough delay, and I brought suit. He didn't in that conversation intimate that he had collected the rents for the joint use of himself and mother, and ought not, under the circumstances, account for it, but he said he was liable for the rent, and would account for it after finding out what it was and making proper deduction for his trouble. I never heard there was any other theory until a copy of this answer was served on me. Mr. Kemp never made any statement as to how much he received a year from the place, and, if I have ever seen the farm, I don't recollect it."

George W. Kemp's testimony as to his statements made to Mr. Barnett are substantially as follows:

"After he [Barnett] was appointed administrator, he and the judge told me I would have to render an account, make a statement of the rents, of the rents I had collected, the money I had paid out, and things of that kind, and I told him I hadn't kept any books, and I didn't know how I could make it. Mr. Barnett afterwards told me I don't recollect whether he told me that day or not; yes, it was that day-that he was then not my attorney any more; he had been my attorney, but that he wasn't my attorney, and I would have to get some one else. He had been my attorney; I had confidence in him, and I told him, I said, 'Mr. Barnett, I am not very well acquainted with lawyers in Sedalia, and for him to suggest some good lawyer to confer with. He referred me to Montgomery & Montgomery, and said Mr. Yeater I think that is about would be a good man. He told what he told me, and what the judge told me, if I remember everything correctly. me it was my duty to make a settlement; that, under the circumstances, I would have to make a settlement; that Mrs. Hendrix was claiming I was owing them a right smart of money. I hadn't considered supposed I would have to make a settlement, because they told me so. that I would have to before that, because Mother had always said that that had nothing to-"

On cross-examination, Mr. Barnett stated that:

Here the witness' testimony was objected to by Mr. Barnett in this language:

"We object to him testifying in this cause at all, except as to conversations had with others

since her death."

"He first got acquainted with Mr. Kemp when he was employed by the latter to represent him in a cause which was in litigation for a

The objection was by the court sustained, and there was no further examination of the witness.

The testimony of Mrs. Hendrix (sister of defendant) relative to what the latter said as to his administration of the estate of James Kemp and his management of his mother's business is appropriate in this connection. It is, in substance, as follows:

"I had been downtown, and I stopped at his store and told him I would like to have a little talk with him. I asked him what became of the money he had on hand when he settled up the estate of James Kemp. He said it was all on record down here. He never told me He never anything only what I asked him. told me much about it one way or the other. I told him I knew he wasn't very stout, and I wasn't able to do anything myself, and I thought he was coming down to see about the administrator [of Mrs. Kemp's estate], and I said, George, I would rather you wouldn't administer; you have got all you can do to attend to your own business, and you are not able to attend to this affair, and I ain't either; and I would rather get some one else to do that.' I had the first That was after Mother died. conversation with him before Mother died, and We didn't the next at his store afterwards. say very much. I asked him about this money on hand when he settled up the estate of James

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Kemp, and he said it was all on record down | to conduct same with the aid of the defendhere at the courthouse, and that is pretty near ant, who resided and was engaged in busiall that passed. I asked him if Mother loaned ness in Lamonte. The difficulties attending him that money or did he borrow it, and he said, 'No,' that Ma simply turned it over to this manner of conducting her business were him to the best of her advantage. That is pret- such that the mother, after consultation with ty near all that was said, as near as I recol- her son, finally concluded to move to Lamonte lect. He never told me much about it one way or the other, and I didn't meddle wit it. and become a member of his family. This thought he would do what was right, and in she did in about 1890, and for 18 years there-· mother's lifetime I never wanted to bother her after, or until her death in 1908, they residin any way, and I never said much about it. ed together in that amity which should charI did ask him one time who the place was rented to, and that is about all. He didn't acterize this kinship. Mrs. Kemp was a wosay anything, only told me the names of the man of strong and clear mind, and of a rathparties. He didn't tell me what he got for the place, or nothing, or how he rented it." er dominating nature. Her son, the defendant, was weak physically, and of rather vacil

The substance of the relevant testimony of James C. Hendrix, son of Mrs. Hendrixlating disposition, and hampered in his social and a nephew of the defendant, is to the and business intercourse by deafness, and effect that the defendant admitted to him there are many facts affirmative and circumthat he owed the estate a big lot of money, stantial indicating that he was not only guidand that that was about all the conversation ed in the general conduct of his mother's afthat witness had with the defendant. fairs by her, but that in particular matters, such as the renting of the ground and collection of rents, and the sale of the products of the farm, he did nothing without consulting her. Whether in any of these matters he accounted to her or was required to account to her there is no evidence; but, considering their respective natures and dispositions, the conclusion is almost inevitable that whatever he did was under her direction. So far as is shown by the testimony, there is nothing to indicate that there was any change in the nature of this relationship or that her mental alertness and disposition to direct her own affairs was in any way impaired until a short time before her death. It is true that for at least two years before her death her physical condition, due to rheumatism and a rectal paralysis incident probably to old age, rendered her unable to do more than assist as her inclination prompted in the housework. This disability, however, does not appear to have lessened her mental capacity to manage her own business.

The testimony of Mrs. Minnie Andrews, a granddaughter of Mrs. Hendrix, was as fol

lows:

"I was present when the conversation occurred between Mrs. Hendrix and Mr. Kemp. We had been up town and came by the store, and Grandma said to Uncle George she wanted to have a talk with him about the estate; that she had never known how things were run, and would like to get an insight as to how the business was attended to. She asked him if he had borrowed this money from Grandma, and he said, No,' that Grandma had simply turned it over to him to be used to the best of her advantage; and she asked him if all the corn had been sold on the place, and he said, 'Yes,' and also said by selling the corn at the price it was sold it bad beat him out of $20. She said there was only the two children, and they could get together and agree on this business without trouble, and he said he thought so too. She asked him about the money on hand when the estate was settled, and he said there had been a record given of every cent of the money. Then she asked him some questions he didn't answer, and she asked him about how much property there was in Lamonte, how much property Grandma had, and he said she owned a house and lot in Lamonte, but he didn't tell her about the livery stable until she asked. This was practically the sum and substance of the conversation. He voluntarily said the house and lot belonged to his mother. Then she asked him if Grandma didn't own a livery stable in Lamonte, and he said, 'Yes.' Nothing was said about the cost of the property."

In connection with this testimony, the fact is pertinent that the final settlement of the defendant as administrator of the estate of James Kemp introduced in evidence discloses no indebtedness on the part of the defendant to said estate.

The witnesses whose testimony is above set forth were all, except the defendant, introduced by the plaintiff. The nature of the business relation sustained by the defendant towards his mother must be deduced from this testimony, as that of other witnesses, except as to fragmentary facts and circumstances, is silent in regard thereto. The general facts are that the stepfather, James Kemp, whose estate is the core of this controversy, died in 1882, and his wife, Sarah

[1] Aside from the administrator's testimony as to the statements made to him by the defendant, and that of Mrs. Hendrix and her son and granddaughter, there is not a vestige of testimony to show that Mrs. Kemp ever regarded her son as her agent in a business sense, or demanded or expected an ac counting from him of the money expended under her direction. It is a reasonable presumption, however, that he accounted to her from time to time as the business was transacted. Of this he was not permitted to testify. The court's ruling in excluding his testimony is not open to criticism.

Much of the voluminous record in this case has been taken up with the testimony of witnesses as to the renting of the farm, the income from such rental in cash or from crops raised thereon, and the expenditures made by defendant in connection with the property. Under the view we have taken of this case, the introduction and preservation in the record of this testimony was unnecessary; it

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His former admissions in no manner changed the rights or lessened the remedy of plaintiff; if plaintiff deemed that a cause of action existed, it was his duty, regardless of any statements or admissions made by the defendant, to institute the action. The most that can be said of the alleged admissions-and this is not pertinent to the question of estoppelis that they are properly available in determining the witnesses' credibility, and we have so considered them.

[2] I. Estoppel. It is contended by the plaintiff that the alleged admissions of the defendant in regard to his indebtedness to the estate are binding, and that he is estopped from denying same, notwithstanding the circumstances under which the admissions were made. While it is true, as a general proposition, that where a party gives a reason for his conduct touching a matter in controversy, he cannot afterwards change his base and put his conduct upon another and a different ground, or, as Justice Swayne puts it in Railway Co. v. McCarthy, 96 U. S. loc. cit. 267, 24 L. Ed. 693, "he will not be permitted thus to mend his hold." This language, while general, must be construed in the light of the principles governing equitable estoppels, which are that an assertion or act to constitute an estoppel must be willfully made or done with the intention to deceive the other party. Where it appears, therefore, that one's assertions or acts have operated to the injury of another, or where one's expressions and course of conduct were designed to or did influence another to his injury, their denial will be estopped. Further, it is held that estoppels are not favored, and are to be resorted to solely as a means to prevent injustice, "always as a shield, never as a sword." Pierrepont v. Barnard, 5 Barb. (N. Y.) 364; Royce v. Watrous, 73 N. Y. 597; Campbell v. Nichols et al., 33 N. J. Law, 81; Colter v. Calloway, 68 Ind. loc. cit. 222; 2 Herm. Estop. § 787, p. 914. Our own court, guided by these well-established principles, has declared that the facts relied on to establish an equitable estoppel must be such as to have caused the party asserting them to have changed his position in reliance thereon to his injury. Thompson v. Lindsay, 242 Mo. 53, 145 S. W. 472; Withers v. Railroad, 226 Mo. 373, 126 S. W. 432; Freeland v. Williamson, 220 Mo. 217, 119 S. W. 560.

[3] II. Accounting. To sustain an action for an accounting, some such business relation must be shown to have existed between the parties as to create a liability on the The facts in the case at bar do not lend part of the one to the other. More briefly, favorable color to the contention of plaintiff the basis of the action must be the existence that defendant is estopped from denying lia- of the relation of principal or agent, in some bility by reason of the alleged admissions one of the varied forms of business activity made by him to his former counsel. In mark- under which one, being authorized, acts for ed contrast with the dominant characteristics and on behalf of another. In fact, no form of his mother, defendant was of a weak and of human action, save by the actor himself, vacillating nature, and was further handi- is possible without the creation, although it capped by a defective sense of hearing. may be for the one act alone, of the relation When told, therefore, as he says he was, by of principal and agent. It was created and his former counsel and confidential adviser, existed between defendant and his mother. and the probate judge, that he must make a So well defined was the relation that he did settlement, moved by that confidence which not rent an acre of ground, reset a fence, sell clients often repose in counsel, he no doubt a crib of corn, or a stack of hay, except under went to the counsel's office, and, as the lat- her direction and with her approval. That ter testifies, frankly answered the questions he received and paid out money for her in propounded to him. But in what manner conducting her business we do not doubt, aldoes this constitute an estoppel and close his though there is a paucity of testimony in mouth when testifying at the trial, when he this regard. In the absence of an express had become aware of his rights, and had a appointment or acceptance, much may, of

As to whether or not the bringing of the suit by plaintiff changed his position within the meaning of the law of estoppel, the Supreme Court of Louisiana, in Des Allemands L. Co. v. Morgan City L. Co., 117 La. 1, 41 South. 332, says:

"The bringing of a suit is not a change of position within the meaning of the law of estoppel. The suit cannot create rights, nor change the legal situation. It can only enforce the existing rights, such as they happen to be. A litigant cannot create an estoppel against his adversary by merely filing a suit against him."

And on the same question the Supreme Court of Iowa, in Jamison v. Auxier, 145 Iowa, 654, 124 N. W. 606, says:

"Defendants have done or omitted nothing or to go to any expense which he would not which caused plaintiff to change his position, otherwise have incurred, save, perhaps, to bring suit on the note. The bringing of suit is not a fact, however, upon which to predicate a plea of estoppel."

And the Supreme Court of Minnesota, in Western Land Ass'n v. Banks, 80 Minn. 317, 83 N. W. 192, says:

in cases where the representations which are "The doctrine of estoppel has no application claimed to give rise to it tend only to induce the party to do some act he is already legally bound to do."

In the absence, therefore, of any of the elements necessary to constitute an estoppel, we must hold that it is not properly invoked in this cause.

business relationship from the words and, St. Rep. 458, 15 Ann. Cas. 724; Smith, Adm'r, conduct of the parties and the correlative v. Perry, 197 Mo. loc. cit. 461, 95 S. W. 337; circumstances connected with the case. We Crowley v. Crowley, 167 Mo. App. 414, 151 have weighed all of these in an effort to de- S. W. 512; Carrau v. Chapotel, 47 La. Ann. termine whether the relation which existed 408, 16 South. 873; Evans v. Evans, 42 Tenn. between these parties was such as to create (2 Cold.) 143; Fidelity T. & T. Co. v. Weitzel, a liability on the part of the defendant. The 152 Pa. 498, 25 Atl. 569; McCarty v. McCarfact that the relation of principal and agentty's Adm'r, 11 Ky. Law Rep. 366; Rich v. may in form have existed in this case lends Austin, 40 Vt. 416; Macauley v. Elrod, 28 no force to plaintiff's claim, unless it be S. W. 782, 29 S. W. 734, 16 Ky. Law Rep. shown that a liability was thereby created 549; Hamilton v. Hamilton, 15 App. Div. 47, on the part of defendant. 44 N. Y. Supp. 97, 102; Robbins v. Robbins (N. J.) 3 Atl. 264.

The industry and learning of counsel have prompted them to submit pro and con other matters for our consideration than those we have discussed, but, as the burden of plaintiff's plea is for an accounting, and we have denied his right to same, the consideration of other matters is unnecessary.

De of

From the foregoing it follows that the judgment of the trial court should be affirmed, and it is so ordered.

BROWN and FARIS, JJ., concur.

The property, real and personal, belonged to the mother. Her mental alertness and the exercise of her authority in regard to it, shown by the testimony, we have adverted to. The mother being dead, the son's mouth is closed as to the nature of his relations with her, and the evidence in regard thereto, in the absence of other witnesses, must be gleaned from her conduct, so far as it can be shown by all the facts and circumstances in the case. While he acted for her, and she kept a watchful eye upon his actions, she required him to keep no books, and if he accounted to her it must have been orally after each transaction. If he was required to make settlements, the conclusion is almost inevitable that they were made after the same manner as his reports. No syllable of testimony indicates that she was at any time dissatisfied with this manner of proceeding, and it is almost proof positive that if dissatisfaction existed the ever open ears of the village gossip would have heard it from her at some time during the 20 years and more that the relation existed. Under this state of facts, in the utter absence of evidence to sustain it, we are asked by the plaintiff to require the defendant to do what was never required of him by his mother, viz.: Render an account of his transactions.

Living, Mrs. Sarah Kemp may have been unbusinesslike in her methods, but her power to do with her own as she chose cannot be questioned. If she chose to give her income or more to her son in exchange for a home and the companionship of those endeared to her by association and ties of blood, a court of conscience, whose decrees should be tempered by sentiment as well as a wholesome sense of right, should not interfere with her choice. Especially is this true where, as in this case, there is no allegation of fraud, unfair dealing, or undue influence, and no intimation that she was not, at all times, of sound mind. The plaintiff's petition is to be commended in this respect, as, after the necessary formal allegations, it plants its plea for a decree upon defendant's mismanagement of the estate. In our opinion, the facts and circumstances do not justify equitable intervention. Precedents in support of the conclusion reached here in regard to an accounting may be found in the following casDonovan v. Griffith, 215 Mo. 149, 114 S. W. 621, 20 L. R. A. (N. S.) 825, 128 Am.

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4. CRIMINAL LAW (§ 789*)-INSTRUCTIONS— REASONABLE DOUBT.

that, if defendant had proved to the jury's reaOn a trial for homicide, an instruction sonable satisfaction that prior to the alleged difficulty he sustained a good reputation as a law-abiding citizen, the jury should consider as the law presumed that one whose character that fact in passing on his guilt or innocence, was good was less likely to commit a crime than one whose character was not good, but from all the evidence in the case, including that that if they believed beyond a reasonable doubt, of good character, that defendant was guilty,

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