
    ARTHUR BERKSHIRE, Appellant, v. SAMUEL HOOVER, Respondent.
    Kansas City Court of Appeals,
    February 10, 1902.
    1. Guardian and Curator: SETTLEMENT: NOTE: PAYMENT. A note given for a debt is not payment unless it was given and accepted with such intention; and so where on a settlement between a curator and his ward, the curator gave his note for the agreed balance such note will not discharge the balance.
    2. -: CONVERSION OE FUNDS: ATTORNEY’S FEE: SURETIES. Where a curator has converted his ward’s estate he is not entitled to counsel fees for assistance in making settlements thereafter, especially where such fee is an effort to wipe out the balance in favor of his ward and so shield his sureties.
    3. Appellate Practice: DEFECTIVE ABSTRACT: CURED. Though appellant’s abstract be insufficient yet if the respondent’s supplied the deficiency, the appellant is only chargeable with the cost of curing the defect.
    Appeal from Oass Circuit Court. — Hon. Wm. L.. Jarroii> Judge.
    REVERSED AND REMANDED.
    
      J. B. Nicholson and Geo. Bird for appellant.
    
      (1) Tbe court should have given tbe declarations of law asked by plaintiff. (2) After misusing bis office to carry to bis pockets tbe money of bis late ward — money that be could not have otherwise obtained than as guardian — be should not be beard to say: “It is true I wrongfully, colon officii obtained tbe money, but will account for it only in my individual character.” Pombeck v. Bombeck, 18 Mo. App. 34.
    
      Barnett & Burney and Qivan & Glenn for respondent.
    (1) Respondent has a right to rely on bis judgment obtained in tbe trial court. It is tbe duty of appellant, not respondent, to produce proper abstract of tbe record and evidence of tbe trial court in tbe appellate court. Brand v. Cannon, 118 Mo. 596j Doherty v. Noble, 138 Mo. 32-3; Costello v. Pesler, 80 Mo. App. 109-110; State ex rel. v. Reynolds, 82 Mo. App. 153; Western S. & W. Co. v. Glasner, 150 Mo. 426; Rules 11 and 15 of this court; R. S. 1899, secs. 863, 864, 865; R. S. 1899, sec. 813.
   BROADDUS, J.

On June 16, 1900, defendant' Hoover, curator, filed in tbe probate court bis exhibits for a final settlement of tbe estate of tbe plaintiff. At the August term of said court, tbe plaintiff objected to tbe proposed settlement and bad tbe case certified to tbe circuit court of tbe county on tbe grounds that tbe judge of tbe probate court was a material witness in the case. Tbe case was duly tried in tbe circuit court, where said proposed settlement was sustained, from which judgment sustaining said settlement tbe ■plaintiff has appealed.

Tbe plaintiff only attacks two items of credit set forth in said settlement, to-wit: “By amount paid attorney this settlement, $100. By amount paid ward, Nov. 22, ’95, settlement, $500.” Tbe objection to tbe first item is that the curator bad mismanaged tbe estate of bis ward and was therefore not entitled to attorney’s fees. Tbe objection to tbe second item is tbat tbe curator bad not paid tbe amount stated in said item in money, but in bis own promissory note wbicb was of no value as be was insolvent, and tbat it was not -a payment to tbe ward.

Tbe facts sbow tbat tbe plaintiff, tbe defendant’s ward, became of age on June 1, 1895. In December, 1895, tbe plaintiff and defendant bad a settlement at wbicb time tbe note in question was given and a receipt taken. This settlement was repudiated by tbe plaintiff and it was beld void by tbe circuit court, wbicb bolding was sustained by tbis court. Berkshire v. Hoover, 83 Mo. App. 435. At tbe time of tbe settlement now in question, it was admitted tbat tbe defendant was insolvent, but the trial court upon tbe evidence found tbat when tbe note was executed and tbe receipt taken the defendant was solvent and, therefore, approved of tbe settlement in question.

Tbe plaintiff and defendant differ as to what occurred at tbe time of tbe pretended settlement in December, 1895. According to tbe evidence of plaintiff Berkshire, be came to Harrisonville one morning and was in a burry to get back; that Hoover fixed up tbe settlement and be signed tbe receipt; tbat after he bad signed tbe receipt, be was informed by the defendant tbat be did not have tbe full amount of money on band, and tbat be thought be said tbe money was loaned out and be would give him bis note. The amount was $547.50, be claimed was due him. He gave him tbe $47.50 and bis note for $500. Then the plaintiff asked him if bis note was good, and be told him it was and if not bis bondsmen were. Defendant Hoover testified tbat all tbe matters were talked over before they began tbe settlement; tbat it was agreed tbat plaintiff did not want the money and be asked him ii be could loan it for him, and be told him tbat be would have to borrow it if be paid him, and tbat therefore tbe plaintiff said he was satisfied and the note was signed. He further testifies that plaintiff loaned him the money. The trial court, after some hesitation, sustained the settlement proposed by the defendant and placed his finding on the ground that at the time the note was given the defendant was solvent and, in effect, that the execution and delivery of the same was a payment.

Without entering into a discussion of the questionable policy of approving a transaction of the kind under consideration where it is shown that the curator has converted the estate of his ward, and thereby committed a breach of his bond, the judgment of the trial court is wrong on a plain principle of law. It is the law of this State as enunciated by numerous decisions of the supreme and appellate courts that, the taking of a note for an existing indebtedness is not a payment of it, without an express agreement to that effect. In State ex rel. Crider v. Wagers, 47 Mo. App. 431, it was held that “it was the well-settled law of this State that the taking of a bill of exchange or note is not payment unless the creditor expressly agrees to take it as payment and run the risk of it being paid.” See, also, Riggs v. Goodrich, 74 Mo. l. c. 112; Leabo v. Goode, 67 Mo. 126; Howard v. Jones, 33 Mo. 583. “When a note lm been taken for an indebtedness-evidenced by open account, and a receipt is given therefor,, a statement in the receipt to the effect that the note was taken in settlement of the account, would not be sufficient alone, to authorize the court to submit to the jury by instruction, the issue whether the note was taken in satisfaction of the account.” McMurray v. Taylor, 30 Mo. 265. The evidence does not show that there was any express agreement between the parties, that the giving of the note and acceptance of the receipt were to be taken as a payment of the amount due. It follows, therefore, that the theory upon which the court tried the case, was at variance with the law governing the issuer tried.

The plaintiff’s exception to the item of $100 paid defendant’s attorney for this settlement ought to have been sustained. The defendant by reason of the fact, shown by his own evidence that he had converted at least a part of his ward’s estate, and consequently committed a breach of his bond, was not entitled to counsel fees, for assistance in a settlement made thereafter. The fact that this charge is for services where only nineteen items are included in the account, is a circumstance tending to show that the defendant was malting every effort to wipe out all plaintiff’s demand in order to shield his securities at the expense of his ward. Such acts of persons occupying a fiduciary relation ought to be discouraged, and it is the duty of the courts to condemn such methods in unstinted terms.

The respondent makes the point that the appeal herein should be dismissed because the appellant has not filed such an abstract as is required by the rules of this court.' It is true that his abstract is very deficient. But as the respondent has supplied the deficiency by an abstract of his own under section 813, Eevised Statutes 1899, the appellant is only chargeable with costs incurred by the respondent in curing the defect.

The cause is reversed with directions to the trial court to disallow the items of $100 attorney’s fee, and $500 evidenced by the note in question, and to state the account accordingly.

All concur.  