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4. TROVER AND CONVERSION 9(5)-CONDI- The defendant is a brother-in-law of the TIONS PRECEDENT-DEMAND.

Where defendant becomes lawfully possessed of goods and actually converts them to his own use, no demand is necessary before bringing suit. [Ed. Note.-For other cases, see Trover and Conversion, Cent. Dig. § 62.] 5. TROVER AND CONVERSION -ADMISSIBILITY.

36-EVIDENCE

In action to recover value of bonds which defendant admitted he held and which he claim ed right to hold until settlement of partnership affairs with plaintiff, letters tending to show demand by defendant for settlement of partnership affairs were properly excluded as irrelevant. [Ed. Note. For other cases, see Trover and Conversion, Cent. Dig. §§ 217-224.]

6. TROVER AND CONVERSION 67-INSTRUCTIONS EVIDENCE.

In action to recover value of bonds withheld from possession of plaintiff, evidence held to warrant charge authorizing jury to find that defendant used bonds for his own benefit.

[Ed. Note. For other cases, see Trover and

Conversion, Cent. Dig. §§ 295-303.]
7. APPEAL AND ERROR 207, 231(1), 261,
499(1)-REVIEW-PRESERVING QUESTIONS FOR
REVIEW-MISCONDUCT OF COUNSEL.

To review improper remarks of counsel during trial, it is necessary that an objection be noted to improper remarks, and that the trial court's attention be called to the specific ground on which the objection is based, and that the court be requested to rebuke counsel therefor, and should the court not administer proper rebuke, counsel should then except to the court's failure to rebuke, and unless the record shows this to have been done, a new trial will not be granted except in extreme cases.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1352, 1500, 2295; Trial, Cent. Dig. § 314.]

plaintiff. In the fall of 1911 plaintiff and defendant were engaged in business together, operating peanut vending machines. In that same year the defendant, who had rented a safe deposit box for his own personal use, invited plaintiff to put any papers of value he desired into the said safe deposit box, and the plaintiff, owning two Cuban government $100 bonds and one Kansas City Home Telephone Company $100 bond, accepted the invitation and placed said bonds, for safe-keeping, in the said safe deposit box, and simultaneously therewith received a key to the box, thus giving him access thereto with the defendant. Some time in the spring of 1912 the defendant requested plaintiff to let him have his (plaintiff's) key, stating that he (defendant) had lost his key and wished to go over and get into the box. Thereupon plain

tiff gave his key to the defendant, and the key was never at any time returned to him.

It is from this point that the evidence is conflicting. The testimony of the plaintiff is that defendant, shortly after plaintiff had given up his key to the box, left the city; that along about the month of July, one of the coupons on the bonds becoming due, and plaintiff desiring to have access to the box, he asked defendant, who had temporarily returned to the city, for the return of his key, but did not obtain it. Some time later, defendant again being out of the city, plaintiff went to the trust company from whom the box was rented and had them destroy the lock and open the box for him. It was

Appeal from St. Louis Circuit Court; Leo found to be empty. The trust company put a S. Rassieur, Judge.

"Not to be officially published."

Action by Horace Milliken against Benjamin Larrabee. Judgment for plaintiff, and defendant appeals. Affirmed.

Earl M. Pirkey, of St. Louis, for appellant. Blodgett & Rector, of St. Louis, for respond

ent.

BECKER, J. Plaintiff filed his statement originally in the justice of the peace court in the city of St. Louis, Mo., for the recovery of the value of three bonds alleged to have been his property, and after a hearing thereon an appeal was taken to the circuit court, and the cause was tried before the judge and a jury, which trial resulted in a verdict and judgment for the plaintiff for $293. The verdict was signed by nine jurors only. Upon the plaintiff remitting $4 from this judgment, the judgment was re-entered for $289, from which judgment defendant appeals.

There is no question before us as to the sufficiency of the plaintiff's statement. The matter originating in the justice of the peace court, where there was no pleading filed by the defendant, the cause was heard de novo in the circuit court upon the plaintiff's original statement.

new lock on the box and gave the plaintiff two keys thereto, which plaintiff testified he sent to the defendant at Columbia, Tenn. Later on the plaintiff testified that after the defendant had again returned to the city he requested him to return his bonds, but that defendant refused and told him to see his attorney.

The defendant's evidence was to the effect that some time after he had obtained the plaintiff's key to the safe deposit box, and whilst he and plaintiff were still in the peanut vending machine business, defendant at various times requested the plaintiff to give him an accounting as to their partnership business. Plaintiff made no accounting, however, and finally on one occasion the defendant, meeting plaintiff, stated to him that he was in bad health and intended to go away and wished for an accounting of the business, as he did not know anything about it. The defendant testified that then and there the plaintiff told him to take the bonds in question in this suit and hold them as security, and if he (plaintiff) did not make a good and proper accounting, the bonds were to be his (defendant's). Thereupon the defendant testified that as soon as he could he went and got the bonds out of the box, as he was going away and did not wish to leave them there.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

He testified that he did not remember of of no such accounting being made then the the plaintiff requesting him to return his key bonds were to become the property of the to the box, and that the plaintiff never asked defendant. him for the bonds. He testified he had the [2] It is alleged by the defendant, and bonds in his possession since taking them out admitted by the plaintiff, that there had, in of the box; that he cut off the coupons and point of fact, been no accounting. The iscollected the same; that the bonds and the sue was clearly presented by the plaintiff of money collected on the coupons were in his an actual conversion, and the sole issue possession; and that he had stood ready at presented by defendant was that he (the deall times to turn the bonds over to the plain- fendant) held the bonds as security and until tiff upon the plaintiff making a proper ac- an accounting should have been made, and counting of their partnership business. De- upon a failure to account the bonds were fendant testified that the exact money that to become his. That being the case, it clearhe had collected upon the coupons had from ly follows that, according to the defendant's time to time been changed, in that he some-own theory of the case, even had a demand times used it in making change, and therefore for the bonds been made by the plaintiff, dethe pieces of money that he had obtained fendant would have refused to turn them upon collecting the coupons were not, in over, because it is admitted that the plaintiff point of fact, the identical pieces that he had had made no accounting, and one is not reoriginally received, but that the amount that quired to do a useless thing. he had received from the said coupons had never been lessened since the time of collecting same. The plaintiff, in rebuttal, denied that he had ever given the bonds to the defendant as security until he should have made an accounting, and that in the event of his failure to make an accounting they should become defendant's, but that the bonds were always his, and had been taken, without his knowledge or consent, from the safe deposit box.

Neither the written statement of the plaintiff, nor the testimony adduced thereunder, nor any of the testimony given on behalf of the defendant at the trial of the case would have warranted any such theory under which the court could properly have instructed the jury as requested in the said instruction of defendant which was refused by the court.

The essential requirements in said refused instruction which the defendant was entitled to have embodied in an instruction were, in The jury finding against the defendant, and point of fact, fully covered in an instruction in favor of the plaintiff, the defendant filed given by the court of its own motion (to the his motion for a new trial, and, amongst oth-giving of which instruction the defendant exer grounds, there was presented that of re- cepted and assigns as error). Said instrucmarks made by plaintiff's counsel in his ar- tion is instruction No. 3, and reads as folgument to the jury alleged to be prejudicial. lows: In support of that assignment defendant in his motion for a new trial filed certain affidavits of three jurors, being the three jurors who had not signed the verdict. These affidavits were almost identical in wording, and were to the effect that the remarks complained of as having been made by plaintiff's counsel were considered by the nine men of the jury who signed the verdict, were believed by them, and were one of the chief reasons why the said jurors signed the verdict.

The motion for a new trial having been overruled, defendant appeals.

[1] 1. The appellant contends that the court erred in refusing to give the following

instruction:

"The court instructs the jury that, if they find from the evidence that defendant took the bonds in question with the consent of plaintiff, and that plaintiff did not demand said bonds of defendant prior to the beginning of this suit, and that defendant kept and had said bonds, and the interest accumulated at the beginning of this suit, then the jury will find for defendant."

The court properly refused it for the reason that it did not fit the facts in the case, as the only evidence adduced on behalf of the defendant was that the bonds had come into his possession with the consent of the plaintiff as security until an accounting should have been made by the plaintiff of their partnership affairs, and in the event

"The court instructs the jury that, unless you find and believe from the evidence that the bonds referred to in the evidence were by the plaintiff pledged with the defendant as security for the faithful performance of the duties of the plaintiff growing out of the partnership referred to in the evidence, or as security until an accounting was had of such partnership matters, you will return your verdict for the plaintiff, even though you may find and believe from the evidence that said partnership matters have not been settled and no accounting thereof has been had."

Appellant complains that this instruction is erroneous in that the jury may have believed that the bonds came into possession of the defendant with the consent of the plaintiff, but not as security, and if the jury so believed from the evidence, then the defendant's possession would be lawful until a demand What has been was made for their return. said above fully answers this objection. No such theory of the case was warranted by the proof adduced.

[3, 4] Again this instruction No. 3, given by the court of its own motion, must be read in connection with instructions Nos. 1 and 2, given at the request of plaintiff. And it must be remembered that the plaintiff's sole contention and all the evidence adduced by him was that there had been an actual conversion of plaintiff's bonds by the defendant. * * "A wrongful * assumption of a right to control or dispose of property constitutes a

conversion. Indeed, any wrongful act which onstrated by simply reading the instruction negatives or is inconsistent with the plaintiff's complained of. right is per se a conversion." Williams v. Wall, 60 Mo. 318, loc. cit. 321.

"This brings us to the consideration of the contention that a demand was necessary to plaintiffs' case. I think the contention discloses a misconception of the office of a demand. A demand is not necessary when there has been a conversion without it. Demand and refusal will show conversion when it did not otherwise appear. The office of demand is evidential and not creative." La Fayette County Bank v. Metcalf Moore & Co., 40 Mo. App. 494, loc. cit. 502.

"Where a party becomes legally possessed of goods, and actually converts them to his use, no demand is necessary before bringing suit." Knipper v. Blumenthal, 107 Mo. 665, loc. cit. 670, 18 S. W. 23, 24, and cases cited.

In view of what has been said above, we find no error in the instruction No. 3 given by the court of its own motion.

2. During the progress of the trial defendant offered in evidence a letter alleged to have been written by defendant's attorney to the plaintiff, in which letter the attorney notified plaintiff that defendant's claim had been placed in his hands for collection, and asked plaintiff whether he cared to pay this claim without suit. The defendant also offered another letter, an alleged answer, from plaintiff to defendant's attorney, in which plaintiff acknowledged receipt of two letters from defendant's attorney, and stated that he would see the attorney regarding the matter on his return to St. Louis in September. These letters were written during the month of August, 1912.

The defendant offered these letters to "show, in the nature of an admission, that a demand was made on him [plaintiff] and a claim that there was an account against him and he owed a balance and he didn't deny that. It is in the nature of an admission."

Counsel for plaintiff objected to the introduction of the letters on the ground:

"That they have nothing to do with the facts pertinent to this case; that they are incompetent, irrelevant, and immaterial, in that they deal with the internal and complicated affairs of the copartnership, which is not an issue in this case. I make the further objection that there is no connection between these letters offered in evidence and the testimony that has been introduced in the case."

The court sustained the objection, stating: "This is contrary to the testimony. He had no account against him at all. According to your own statement. they were partnership

transactions between them."

[5] Had these letters been admitted in evidence, it would have opened the door to a still further examination of the partnership affairs, which were clearly irrelevant. The letters were properly excluded.

[6] In this same connection we can dispose of the error complained of in instruction No. 2, namely, that it authorized the jury to find that the defendant used the bonds for his own use, while there was no evidence in the case that the defendant used them for his own benefit. This objection is without merit. A reading of the record shows that it contains sufficient evidence to authorize that requirement of the instruction. 4. The only other assignment of error that is presented seriously is that plaintiff's counsel during the argument of the case before the jury made remarks which were prejudicial to defendant. We set forth the alleged improper statement, the objection thereto, and the court's action thereon for a proper understanding of this assignment of error.

Statement of counsel for plaintiff: "Suppose you were in partnership; would you let your partner come to you and tell you to put up a bond for your faithful performance of your duties to the partnership unless he put up one, too, especially when he had the finances and did all the checking out of money? And now he is hollering here about making an accounting when he has got the books. Mr. Milliken has never seen the books; cannot get the books. Mr. Larrabee is now in a position where he has got the books-"

Counsel for defendant: "I object to that statement for the reason that is not in evidence, and for the reason he is mistaken. Counsel I don't mean to say is a liar, but it is untrue." The Court: "What statement?" Counsel for defendant: "The statement that Mr. Larrabee had all the books and Mr. Milliken couldn't see them." (Italics ours.)

The Court: "In arguing the case, gentlemen, you must argue it on the evidence. There is no testimony that Mr. Milliken could not see the books." (Italics ours.)

Counsel for plaintiff, continuing his argument to the jury: "The fact remains, without any former statement; that is not in evidence, but you can easily infer the fact that he has still got possession of them; and yet he comes in not going to give you the bonds until you make here and says, 'Make me an accounting; I am an accounting.' And where are the books? Where are the canceled checks? Who drew the checks? Gentlemen, has Mr. Larrabee answered those questions?"

[7] It is a well settled law in this state that, whenever remarks of counsel during the progress of the trial shall amount to a misstatement of a material fact which is considered by the opposing counsel as prejudicial, it is necessary that an objection be noted to the party's remarks alleged to be objectionable, and to call the attention of the trial court to the specific ground on which the objection is based, and that the court be requested to rebuke counsel therefor, and should the court not administer the 3. Instruction No. 1, given for the plaintiff, proper rebuke, counsel should then except to is complained of as being erroneous in that the court's failure to rebuke, and unless the the instruction did not require the jury to record shows this to have been done, our . find that the plaintiff at the time of the al- courts, except in extreme cases, will not leged conversion was entitled to their imme- grant a new trial on this ground. Torreydiate possession before he could recover. son v. United Railways Co., 246 Mo. 696, loc. This contention is not well taken, as is dem- cit. 706, 707, 152 S. W. 32; State v. McMul

lin, 170 Mo. 608, loc. cit. 632, 71 S. W. 221; State v. Phillips, 233 Mo. 299, loc. cit. 306, 135 S. W. 4.

The record above quoted shows that the defendant did not except to the failure of the court to rebuke the attorney for his improper remarks, and in view of the above authorities cited it will not be necessary for us to go into the question of the affidavits of the three jurors who had not agreed to the verdict below, which affidavits were filed in support of the defendant's motion for a new trial, as, in view of the record, this assignment of error is not properly before us.

Finding no error in the record, we affirm the judgment.

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Where husband and wife held leasehold es

tate by entirety and had borrowed $1,000 thereon for improvements, upon an accounting between husband's estate and wife for income collected by her, each party should assume onehalf of the indebtedness.

[Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 73, 74.]

8. HUSBAND AND WIFE 14(2)-LEASEHOLD ESTATE BY ENTIRETY-ACCOUNTING.

In an accounting between husband's estate

REYNOLDS, P. J., and ALLEN, J., con- and wife for income collected by her from lease

cur.

REZABEK V. REZABEK. (No. 14567.) (St. Louis Court of Appeals. Missouri. Feb. 6, 1917. Rehearing Denied Feb. 20, 1917.)

1. HUSBAND AND WIFE 232(3)—LEASEHOLD PROPERTY-ACTION FOR ACCOUNTING-FIND

INGS.

Finding of fact, in action to have decedent's wife declared trustee for husband's estate as to leasehold property and to account for rents received therefrom, held supported by the evi

dence.

[Ed. Note. For other cases, see Husband and Wife, Cent. Dig. §§ 848, 981.]

2. HUSBAND AND WIFE 14(2)-ESTATE BY ENTIRETY-IN PERSONALTY.

Estates by entirety may be created in personalty as well as realty between husband and wife.

[Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 73, 74.]

3. HUSBAND AND WIFE 114 WOMEN'S ACTS.

MARRIED

The husband's common law right to wife's personal property is taken away by the Married Women's Acts (Rev. St. 1909, c. 77) except as to that reduced to possession by husband before passage of acts.

[Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. § 395.] 4. HUSBAND AND WIFE 14(2)-ESTATE BY ENTIRETY-LEASE: Where a lease was made to husband and wife, held to create an estate by entirety, and under a new lease taken by wife in her own name before expiration of old lease, husband was entitled in equity, to same interest as under old lease.

hold property held by entirety, held that the account between parties up to time of husband's death, when the wife took the property by survivorship, was proper.

[Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 73, 74.]

9. APPEAL AND ERROR 854(2)-HARMLESS ERROR-CORRECT RESULT.

Where trial court reached the correct result, but its conclusions of law were erroneous, the judgment will be affirmed.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 3408-3410.]

Appeal from St. Louis Circuit Court; J. Hugo Grimms, Judge.

Suit by Joseph Rezabek, Jr., administrator, etc., against Margaret Rezabek, Judgment for plaintiff, and defendant appeals. Affirmed.

The original parties to this suit were Joseph Rezabek, plaintiff, and Margaret Rezabek, defendant, his wife, but before the final hearing of the case the plaintiff died, and the cause was revived in the name of Joseph Rezabek, Jr., administrator of the estate of Joseph Rezabek, deceased. Plaintiff seeks herein to have the court decree that the defendant, wife of the plaintiff, obtained a certain leasehold on property in the city of St. Louis by fraud, and decree that the defendant, wife, holds said leasehold as trustee for the benefit of plaintiff, and that she account to plaintiff for the rents and profits collected by her under said leasehold, and that the defendant be decreed to deliver up said lease, and that the same be canceled, and that the maker of the said lease be required to execute a new lease on the premises in question to plaintiff for the term and upon the conditions and stipulations provided in such surrendered lease, and for such other and further relief in the premises as to the court may seem meet and proper. The answer of the defendant denies that the said lease was obtained by fraud, but alleges the fact to be that the lease was taken in the name of the wife, defendant herein, with the consent of the plaintiff. The cause Where husband and wife held a leasehold eswas referred to a referee to take the testitate by entirety and during their separation mony and try all the issues. The referee

[Ed. Note. For other cases, see Husband and Wife, Cent. Dig. §§ 73, 74.]

5. HUSBAND AND WIFE

14(2)-ESTATE BY

ENTIRETY-SURVIVORSHIP. Where a leasehold estate was held by husband and wife in entirety, at husband's death the wife had no right of homestead, but took the whole estate by survivorship.

[Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 73, 74.]

6. HUSBAND AND WIFE 14(2)-LEASEHOLD ESTATE BY ENTIRETY ACCOUNTING FOR INCOME.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

on, namely, from the expiration of the said lease in the name of both plaintiff and defendant, which expired in 1901, the plaintiff seeks relief.

found, and the finding sustained by the trial | defendant the right, at the expiration therejudge, that the plaintiff was entitled to an of, to remove the buildings thereon within individual one-half interest in the said lease- a stated time thereafter. From this point hold, and the wife was decreed to be trustee for the plaintiff to that extent, and that as the result of an accounting of the rents and profits collected by the wife, under this leasehold during the term in question, showed a It appears that in 1901, a month or so benet balance in favor of the husband, as a fore the expiration of the leasehold held in holder of a one-half interest in the said the name of both husband and wife, the husleasehold, in the sum of $221, for which said band had been drinking heavily and assaultsum a judgment, together with costs, wased his wife. He was arrested and held in the rendered in favor of the plaintiff and against observation ward in St. Louis for three the defendant. The defendant filed a motion for rehearing, which was overruled, and defendant takes appeal to this court.

Plaintiff and defendant were married in 1873; they lived together peacefully until the year 1901, when, owing to plaintiff's addiction to drink, and other causes not very clearly defined in the evidence, their relationship began to be one of constant disagreement. However, it shows that prior to 1901 they lived pretty much the same as any family in their station of life, the wife receiving the earnings of the husband and children, acting as banker for the family.

In 1876 plaintiff purchased a lease upon which there was an unexpired term of four years and a right of renewal for a further term of ten years. The right of renewal was exercised, and thus the leasehold is carried up to May 1, 1891, in the name of the husband, plaintiff below. From time to time out of the earnings of the several members of the family, together with such rents as were collected on the improvements, more improvements were built upon the land he.. under the leasehold until the value thereof had reached approximately $5,700. In 1891, when the term expired, the plaintiff was in Chicago and because of that fact caused defendant to go to the owner of the said land to renew the lease for a further period of ten years. The owner, plaintiff not being present, caused the renewed lease to be made out in the name of both plaintiff and the defendant, and had the wife sign the semiannual rent notes to cover the rent reserved under the said lease. The husband later on returned to the city, and thereupon signed the said semiannual rent notes which had already been signed by the wife.

This renewed lease covered the period of May 1, 1891, to May 1, 1901, during which period the St. Louis cyclone, in 1896, damaged the improvements on the property, and plaintiff and defendant borrowed sums aggregating $1,000, which money was used in repairing and rebuilding the improvements. (No part of this sum, so borrowed, was paid off up to the date of plaintiff's death, January 28, 1909.) During the period 1891 to 1901 the wife collected the rent almost constantly from the tenants, and the husband paid little attention thereto. This renewed lease did not provide for any further renewal, but did, however, give plaintiff and

days, and that after his release the parties lived separate and apart. Thereupon the wife took a new lease on the property in her own name for a period of ten years commencing immediately at the expiration of the leasehold held in her name and that of her husband. It is this leasehold, taken in the name of the wife alone, which plaintiff alleges was obtained by fraud, and seeks to have the wife held to be holding as trustee for him, and for an accounting of the rents and profits that have been collected by the wife under said leasehold.

lant.
Campbell Allison, of St. Louis, for appel-
W. B. & Ford W. Thompson, of St.
Louis, for respondent.

BECKER, J. (after stating the facts as above). [1] The findings of fact made by the referee, to whom the cause was referred to take the testimony and try all the issues, and which findings were confirmed by the trial court, are sufficiently supported by the evidence, and we therefore allow them to stand. However, we cannot agree with the conclusions of law drawn therefrom by the referee and the trial judge. The referee's report states:

"I find that in 1891, when the lease was taken in the joint names of plaintiff and defendant, there was no fraud or imposition practiced by the defendant, Margaret Rezabek, and that thereafter when the plaintiff's intestate signed the lease he must have seen his wife's signature attached thereto, and that he thereby ratified her action in taking a lease in the joint name of herself and husband. The lease thus executed contained no provision for renewal, but did provide that said Joseph Rezabek and Margaret Rezabek, their heirs and assigns, are entitled to remove all buildings at the final expiration of this lease; provided, such removal be made within 30 days thereafter. Prior to the expiration of this lease, the defendant, her own name, stating that her husband was Margaret Rezabek, applied for a new lease in crazed with drink, and was unwilling to renew the same. By means of such representation, she prevailed upon the Mercantile Trust Company, acting as the agent for George W. Allen, to execute to her a lease dated March 22, 1901, for a term commencing May 1, 1901, and ending April 30, 1911. This lease was made lease in the joint names of defendant, Margaret more than a month before the expiration of the Rezabek, and plaintiff's intestate. Plaintiff's intestate had a substantial interest in the same, including the right to remove the buildings, then located on the premises, which did not expire until May 31, 1901. Prior to the expiration of the lease in the names of plaintiff's intestate

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