Sanguinett v. Webster

• Citation: 54 S.W. 563,153 Mo. 343
• Parties: SANGUINETT et ux. v. WEBSTER et al., Appellants
• Decision Date: 09 January 1900
• Court: United States State Supreme Court of Missouri

54 S.W. 563

153 Mo. 343

SANGUINETT et ux.
v.
WEBSTER et al., Appellants

Supreme Court of Missouri, First Division

January 9, 1900 ^[*]

Appeal from St. Louis City Circuit Court. -- Hon. Thomas A. Russell, Judge.

Reversed and remanded (with directions).

Hiram J. Grover and G. B. Webster for appellants.

(1) Defendants, motion to strike the third amended (being plaintiffs' fourth) petition from the files should have been sustained. (a) The fourth petition stated an entirely new cause of action. (b) After the demurrer to the second amended (being plaintiffs' third) petition had been sustained, defendants were entitled to judgment; and it was error to allow plaintiffs to file a fourth petition. R. S. 1889, sec. 2068; Gordon v. Burris, 125 Mo. 39. (2) The alleged assignment was not established by the evidence. Like any other contract, the contract of assignment must be founded upon: (a) an intent to make it; (b) some palpable legal act done for the purpose of making that intent effective as an actual transfer of property; (c) an acceptance of the intended transfer by the assignee. Johnson Co. v. Bryson, 27 Mo.App. 341. (3) The contract entered into between M. P. Sanguinett and Webster Flanagan in the spring of 1877, did not create any trust. It was an executory contract, which required in its fulfillment many things to be done thereafter by both parties. It created no trust, but a partnership, in which the partners were agents for each other. Richards v. Grinnell, 63 Ia. 44; Yoeman v. Lasley, 40 Ohio St. 190. (4) Defendants' exceptions to the findings of the referee as to the amount of the rents, should have been sustained. (a) Sangunett's account of the rents filed before the referee was not sustained either by his affidavit, or by his sworn testimony. The statement itself was so much waste paper. (b) After that unsupported statement had been filed, Flanagan, in Sanguinett's presence, testified that Sanguinett has several times told him that the rents he was collecting amounted to four hundred and twenty dollars per annum. Sanguinett was subsequently examined in his own behalf before the referee as to other matters, but did not deny he made such statements to Flanagan. (5) Compound interest is imposed as a punishment for some clearly proven intentional dereliction of duty, or for some breach of trust. It is never imposed where the act complained of is as consistent with right dealing, as with wrong dealing. Neither in the interlocutory decree, nor in the final decree, is there any finding of dereliction of duty or a finding of any fact upon which the decree for compound interest can be sustained. Indeed, on the evidence, there could be no such finding. Rumsey v. Street Ry., 142 Mo. 175. (6) Defendants should have been allowed interest at ten per cent per annum (the contract rate) on all the advances which they made and on all their moneys paid out by them for charges and expense. (a) It was part of the original contract that they should have interest at ten per cent. (b) That was the current rate of interest in 1877, and for many years thereafter. (c) It is true the statute provided that a contract for a greater rate of interest than eight per cent must be evidenced by writing. But the plaintiffs after having received the benefit for ten years of defendants' money, furnished on a verbal contract, that defendants should receive ten per cent interest on their advances, are now estopped from setting up the statute of frauds to enable them to perpetrate a greater fraud on the defendants. 2 Herm. on Estop. and Res. Adj., sec. 196.

M. Kinealy, Jas. R. Kinealy and R. S. MacDonald for respondents.

(1) The allegations of the petition on which this cause was tried having been sustained by the proofs, the respondents were entitled to the decree rendered by the court below. Sanguinett v. Webster, 127 Mo. 32. (2) Compound interest was properly allowed in this case. Cruce v. Cruce, 81 Mo. 682; Bobb v. Bobb, 89 Mo. 421. (3) The general denial filed by defendants to the last amended petition, is a denial of their trust, and is a badge of fraud. Kerr on Injunctions, * 445. (4) The assignment of Marshall P. Sanguinett is objected to as being merely verbal and a communication of a husband to a wife, and hence can not be proved. But this objection is groundless, as even if the words used by the husband to the wife in making the assignment can not be shown by the husband's testimony, the fact of assignment may be so shown, he being competent to testify. Scrutchfield v. Santer, 120 Mo. 615. (5) It does not lie in the mouths of defendants to object to Mrs. Sanguinett's title, having recognized her as a beneficiary, received her conveyance, and thus become enabled to sell the property and receive the purchase money. The trustee, when called upon to account, can not deny the title of the cestui que trust to the trust estate. 1 Perry on Trusts, sec. 260; Flint on Trusts, sec. 156; Bigelow on Estoppel (5 Ed.), 545. (6) Nor can the trustee deny the right of the cestui que trust to an accounting on the ground that the trust was created with the intent to defraud creditors. Wolff v. Matthews, 39 Mo.App. 376; Brown v. Thayer, 12 Gray, 1; Tenant v. Elliott, 1 Bos. and Pul. 2; Farmer v. Russell, 1 Bos. and Pul. 295; Gowan's Adm'r v. Gowan, 30 Mo. 474; Reid v. Williams, 48 Mo. 344. (7) The direction of Mr. Sanguinett to Webster and Flanagan to carry the account in his wife's name and for her benefit, and their action thereupon in making out the statement to her operated as a gift, and as the delivery of the gift to Mrs. Sanguinett, and vested the title completely in her without any other act necessary on her part, the gift being plainly for her benefit. Crawford's Appeal, 61 Pa. St. 52; Noyes v. Brown, 33 Vt. 431; Dillman v. McArder, 98 N.Y. 451; Nicolet v. Pillot, 24 Wend. 240; 8 Am. and Eng. Ency. of Law, 1322.

OPINION

[153 Mo. 347] BRACE, P. J.

This is an appeal by the defendants from a final decree and judgment [54 S.W. 564] of the circuit court of the city of St. Louis in favor of the plaintiff Annie E. Sanguinett for the sum of $ 10,715.77. The plaintiffs' third amended petition filed April 27, 1891, upon which the case was tried is as follows:

"Plaintiffs, by leave of court, file this, their amended petition, and state that the plaintiff Annie E. Sanguinett, is and at all times hereinafter mentioned was, the wife of plaintiff Marshall P. Sanguinett; that, heretofore, one Adele Tholozan was the owner of the following described property, real estate, situated in the city of St Louis and State of Missouri, and being lots 1, 2, 3, 4, 5 and 14 of Tholozan subdivision in United States surveys 2997 and 2998, in the Prairie des Noyes Common Fields, situated and bounded as shown on the plat of said subdivision, recorded in the St. Louis City Recorder's office, with the report of the commissioners in the partition suit [153 Mo. 348] of Schueler v. Bright et al., in book 601, page 7, which said lots contain, in the aggregate, 19 3-4 acres, more or less, including one-half of Chipewa street, south of lot 5; that afterwards said Adele Tholozan died at the said city of St. Louis, leaving a will, whereby the following named persons, amongst others, became entitled to portions of the estate of said Adele Tholozan, viz.: Mary E. Sanguinett, Charles C. Sanguinett, Amanda E. Sanguinett, Caroline Cozens, Charles E. Page and plaintiff Marshall P. Sanguinett; that afterwards a suit was instituted to partition the estate of said Adele Tholozan between her heirs, including the persons last above named, and in said suit certain tracts of land were set off to said last named persons, respectively, or to Armin L. O. Shueler and Annie E. Sanguinett, under the deed hereinafter mentioned, which said tracts of land so set off together, constituted all the real estate hereinbefore first described; that said Caroline Cozens, by her deed, dated April 12th, 1877, and recorded in book 579, page 481, in the recorder's office of the said city of St. Louis, conveyed all her interest in and to the above described real estate to plaintiff Annie E. Sanguinett; and plaintiffs say that the several tracts of land allotted to said several persons were so situated and of such a nature that they could not be sold separately, without great loss, but that they formed together a tract or body of land which, because of its shape, nature and situation, could be advantageously sold as a whole or entire body.

"Plaintiffs further state that, at the times in this petition mentioned, defendant Webster was an attorney-at-law, and he and defendant Flanagan carried on, at the city of St. Louis aforesaid, the business of agents for the purchase and sale of real estate, and the borrowing and lending of money as agents for commission paid them; that on or about August 1st, 1877, plaintiff Marshall P. Sanguinett made and entered into a verbal agreement with defendants severally and jointly, whereby it was mutually agreed that said Marshall P. Sanguinett [153 Mo. 349] should cause and procure conveyances, to be executed of the portions of land aforesaid, by the said owners thereof, respectively, including the said Annie E. Sanguinett, plaintiff herein, to some trustee to be selected by the parties to said agreement, and would himself execute a conveyance of any interest he had in said land to the same trustee, so as to vest in said trustee the title to the entire tract of land formed of said portions for the purposes following, viz.: That said defendants should, as soon thereafter as might be most advantageous for the interest of the beneficiaries, under said contract hereinafter mentioned, sell all said tract of land, made of several portions as aforesaid, and cause and procure the said trustee to execute the necessary conveyance or conveyances to effectuate such sale or sales, and that out of the proceeds of the sale should be repaid to defendants any sums of money which...