Werckmann v. Taylor
| Decision Date | 02 May 1905 |
| Citation | 87 S.W. 44,112 Mo.App. 365 |
| Parties | WERCKMANN et al., Respondents, v. TAYLOR, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Walter B. Douglas Judge.
AFFIRMED.
Judgment affirmed.
Campbell & Thompson for appellant.
Wm. H Clopton for respondents.
Plaintiffs Caroline Werckmann and Rose L. Downey, are the children and residuary devisees of George C. Werckmann, deceased. Joseph F. Downey is the husband of Rose L. Downey. Said George C. Werckmann died testate in the city of St. Louis in October, 1899, having appointed the defendant, William H. Taylor, executor. The will devised to his two daughters (plaintiffs) two houses and lots on South Broadway in the city of St. Louis; Numbers 3942, 3944. For two years or more after he qualified as executor, the defendant attended to the collection of the rents of said properties; he states, by the direction and authority of the devisees (plaintiffs); but they say with their consent for the first year and against their will for the second year. He gave a statement to the devisees January 27, 1902, showing that he had collected rent to the amount of $ 2,094.55 and had credited himself with $ 1,004.95, in part disbursed for expenses incurred in caring for the property, paying taxes and other items, and in part retained for his own compensation. This left a balance of $ 1,089.60 due the two daughters as devisees and owners of the premises. His statement also showed he had paid each of said parties $ 544.80 in cash, thus balancing the account. The disputed items of the account are these: Plaintiffs say the defendant charged them with $ 118.42, general and specific taxes on the premises for the year 1900, and deducted that sum from the rents, when in truth he had paid said taxes as executor out of the general assets of the estate and taken credit for the payment in his final settlement as executor. If this was true and the defendant was allowed to deduct the sum paid for taxes from the rent collected, he would receive two credits for the same disbursement. The latter credit would be erroneous, because he paid the taxes out of the assets in his hands as executor and not out of the rents collected as agent for the two daughters. Defendant retained $ 200 out of the rents collected, for which sum he gave himself credit in his statement, designating it as compensation for "fees, advice and services. " The plaintiffs contest this credit, asserting that they never employed the defendant to give advice or render any service except as executor and for which he would be paid by his commissions as executor. It is to be remembered that this is not a controversy over a settlement in the probate court, but over a private account between the plaintiffs and the defendant as their agent. The defendant is in the fire insurance business and is secretary of the Odd Fellows Hall Company; but he testified that he was familiar with the law and especially with probate practice. The advice he gave as stated by himself, was of a business nature--instructing the two daughters how to manage their affairs after their father died. He swore they were very ignorant of business, and begged him to take charge of their affairs, promising to pay him reasonable compensation. The deceased father of the plaintiffs left two sons who were practically disinherited in favor of the daughters, and this circumstance engendered a great deal of family bitterness. The defendant said he gave the daughters advice about their dispute with their brothers, about the title to a bond left by their mother, and a case in the police court growing out of an assault and battery committed by the brothers on the sisters. In short, the advice for which he claimed compensation was instruction regarding business matters and family troubles. The services for which he claimed payment and the right to retain the two hundred dollars, were helping the daughters find a house to live in, driving them around in his buggy while looking for a house, buying a cooking range for them, getting an asbestos back for the range, and similar matters; we cannot recite them all. The third item in dispute is the sum of $ 104.73 retained by defendant as commission on the rents collected by him; that is, five per cent of the amount collected. The contention of the plaintiffs was that he had no right to retain that sum, or all of it; as he acted against their will in collecting the rent during the second year, and agreed to do so gratuitously.
The answer accords with the above statement. It alleges that Caroline Werckmann and Rose L. Downey, on account of their ignorance of business matters and methods, employed the defendant to give them advice and look after their affairs promising him liberal compensation and that the services and advice of the defendant were reasonably worth $ 200. Another paragraph of the answer pleads that on January 27, 1902, defendant rendered an account to his two principals or clients, showing the amount of rents collected, his charges in the way of commissions and for advice and services, and that they assented to the compensation he had credited himself with and said his account was perfectly satisfactory, after they had gone over the same, item by item. Besides those defenses the answer pleaded two counterclaims, one against each of the daughters for the sum of $ 24.30. These counterclaims were founded on an allegation that on January 27, 1902, when the supposed account stated was rendered and assented to, defendant paid to each of his principals the sum of $ 569.10; for the balance due her undivided half interest in the rents collected by the defendant; whereas, the true balance going to each principal was $ 554.80; that the excess of $ 24.30 was paid by mistake. Judgment was prayed for it. In support of the counterclaim the defendant testified that he was in the habit of giving the women small sums of money, ranging from five to twenty dollars, whenever they asked for it, and having failed to keep an accurate account of...
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