Brown v. Lee

STURTEVANT, J.,

pro tem.

This is an action brought by the plaintiff to recover for services rendered. The plaintiff had judgment in the lower court, the defendants appealed therefrom, and have brought up a bill of exceptions containing a part of the evidence. The defendant^ contend that the services rendered, if any, were the services of a trustee, and that no recovery should have been had till the plaintiff rendered to the defendants an account of his stewardship. To ascertain the exact questions piAsented and how they arise, it is necessary to consider the following facts: On February 20, 1908, the Central Trust Company was appointed guardian of the estates of the defendants, who were at that time minor

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orphans. On May-, 1910, P. J. Foote was appointed guardian of the persons of the defendants. September, 1910, the probate court made a monthly allowance of $75 per month in favor of each minor. Commencing on that date, the plaintiff received for the defendants the allowance money and continued to receive it during the life of the probate order. Both minors attained their majorities October 18, 1911. The Central Trust Company rendered its final account February 19, 1912. The plaintiff thereafter collected not only the said allowances, but also the rents, profits, and sales moneys; and expended moneys necessary to cover the personal expenses of the defendants and paid the taxes, insurance, and repairs on the properties of the defendants. These relations continued till about April 1, 1914. On that date a disagreement arose between the parties and this action followed. The plaintiff framed his complaint into two counts: In the first one he claimed $4,789.38 as a balance upon a mutual, open, and current account for moneys expended between September 1, 1910, and April 1, 1914; and in the second count, he claimed six thousand dollars for services rendered “as fiscal agent for the defendants,” .within two years prior to June 8, 1914. The defendants answered by interposing proper denials as to each count and by alleging, among other things, that the defendants were minors prior to October 18,1911; that a guardian of their persons was appointed April-, 1910; that the Central Trust Company was appointed guardian of their estates on February 29, 1912; that before the commencement of this action the plaintiff received for the account of the defendants large sums of money totaling over fifty thousand dollars; that during the same time the plaintiff had expended large sums in behalf of the defendants; that the defendants had asked an accounting and none had been rendered. The defendants then prayed that the plaintiff be required to make ■a full and complete accounting of all of his transactions and for general relief. The trial court made findings: (1) against the plaintiff on his first count; (2) in favor of the plaintiff on his second count, and (3) in favor of the plaintiff on the affirmative defense. The trial court excluded proof of, and found against the plaintiff on his first count, because an account had been rendered and settled in the probate court on the application of the Trust Company. At first glance these rulings would seem to be in favor of the appellants.