Breid v. Mintrup
| Decision Date | 02 March 1920 |
| Citation | 219 S.W. 703,203 Mo.App. 567 |
| Parties | DAVID W. BREID, Respondent, v. JOSEPH A. MINTRUP, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Franklin County.--Hon. R. A Breuer, Judge.
AFFIRMED.
Judgment affirmed.
John W Booth for appellant.
(1) The petition in a civil action must contain a plain statement of facts constituting the cause of action sued on. R. S. 1909 sec. 1794; Sidway v. Missouri, etc., Company, 163 Mo. 342; Moore v. Mountcastle, 72 Mo. 605; Ruebsam v. Transit Company, 108 Mo.App. 437. (2) In an action upon an express contract the plaintiff can recover only upon the particular contract alleged in his petition; and in interpreting the allegations of the petition the same are to be understood according to their legal effect. (Cases cited to Point 1.) (3) An individual may contract for the rendition of service to himself, or to a third party; he may contract individually, or in a representative character as an executor, or administrator, or trustee. His contract in any of these capacities is a different contract from every other contract to which he may be a party. And though a party without regard to the capacity in which he contracts may be liable thereon, yet, in an action against him, a general allegation "that he contracted," covers no description; gives no suggestion, of an obligation incurred in a representative capacity. So under such a general allegation (in the absence of further identification in the petition of the contract sued on), proof of a contract made in a representative capacity will not authorize judgment thereon in favor of the plaintiff. This because it must appear what contract is sued upon, and on that only can the plaintiff recover. It is not enough merely to prove a contract between the parties to the action. (See cases cited under Point 1.) (4) Trustees of express trusts have no powers other than such as may be vested in them by law, or by written instrument granting power to such trustee; and the same principle applies to executors, administrators, guardians and curators. Scott v. Royston, 223 Mo. 568; Armor v. Frey, 253 Mo. 447. (5) A trustee, in his representative capacity as trustee, is with respect to the subject of his trust, so essentially a distinct individuality, that even a judgment of a court of general jurisdiction rendered in an action to which in another capacity he is party does not bind him in his representative capacity as trustee. Dibert v. D'Arcy, 248 Mo. 617, 661; Black on Judgments (2 Ed. ) sec. 536. A trustee of an express trust cannot delegate his powers. See authorities cited in Markel v. Peck, 144 Mo.App. 701. (7) A contract entered into between a trustee of an express trust and a broker for services to be rendered by the broker in procuring a purchaser for the trust property by which contract the profit to accrue over and above a fixed sum by finding a purchaser for trust property at a price in excess of such fixed sum, involves a delegation of power by a trustee, and a contract for a wrongful diversion of a part of the trust estate; and as such is contrary to good morals, and against public policy, and therefore will not support an action by the broker, under the contract, for his portion of the purchase price of the trust company. (Especially so where the broker is also a licensed practicing attorney and solicits, his employment, as such broker, with notice of the trust, and volunteers to the trustee erroneous legal advice to the effect that such a brokerage contract is proper for the trustee to make.) Turner v. Hoyle, 95 Mo. 337; McDearmott v. Sedgwick, 140 Mo. 172; Atlee v. Fink, 75 Mo. 100; Bent v. Priest, 86 Mo. 476. (8) Where a broker claims to be entitled to compensation for services in finding a purchaser for property (trust property or not), and it appears that there was no agreement between the broker and the purchaser concerning the title or interest sold or the character of conveyance to be made, and the broker's principal and the reported purchaser disagree as to the title to be conveyed, or the character of the conveyance to be made, and the deal is never completed, and no part of the purchase money is ever paid; such proceedings do not constitute such performance of a broker's contract for selling real estate as to entitle a broker to compensation either in an action on express contract or in quantum meruit for the finding of a purchase of real estate. Hayden v. Grills, 26 Mo.App. 289; Hayden v. Grills, 35 Mo.App. 647 (9) Under facts as in the preceding point (8), when the broker sues for compensation and an issue in the action arises as to whether the broker's employer wrongfully prevented consummation of the deal initiated by the broker, the entire proceedings of such employer, including communications of pertinent facts to an attorney employed to give advice with respect thereto, together with the advice of such attorney, together with the pertinent conversation between the broker's principal (in person or by agent), and the principal negotiating for the purchase initiated by the broker (notwithstanding they may all have transpired out of the presence and hearing of the broker), are admissible in evidence. (10) All persons dealing with a trustee with notice of his trusteeship are chargeable with notice of the particulars respecting his powers and duties as trustee. Johnson v. Payne etc. Bank, 56 Mo.App. 257. (11) A devisee and legatee in trust for a minor, of the residue of an estate that may remain after payment of debts and of other bequests of a testator, with power to sell and dispose of the same or any part thereof to the best advantage of the minor until the minor shall attain the age of eighteen years, is not thereby authorized, pending administration of the estate by an executor, to sell the real estate of the testator for the payment of debts or of prior bequests. The positions, of trustee, and of executor, under a will are entirely distinct. A power of sale given to an executor is not necessarily a power of sale to a trustee, even though the will may appoint the person named as trustee to the office of executor. How far powers given to an executor may be exercised by a trustee, and vice versa, is to be determined as matter of law in each case according to the particular provisions of the will under which such question may arise. Am. & Eng. Ency. of Law (2 Ed.) Title "Trusts," p. 955, sec. 5. (12) Whatever comes into the hands of a trustee of an express trust of proceeds of trust property must be treated by the trustee as a part of the trust estate, and he must account for it as a part of the trust estate. His grantee or assignee takes from him only such interest as he can convey, and he must account for the proceeds as trust property, and has no authority to divert it to satisfaction of debts regularly payable in the course of administration by an executor.
James Booth for respondent.
(1) The fact that defendant individually had no title to the property was no defense. Cook et al. v. Platt, 126 Mo.App. 553. (2) Where the broker, as here, performs his part of the contract, finds and produces a buyer, ready, able and willing to buy on the terms proposed, the law regards the sale as made in so far as to entitle the broker to his commission; and the mere fact that a defendant under such circumstances, is unable to give a good deed, or the fact that his title is defective, constitutes no defense. Herrick v. Woodson, 143 Mo.App. 258; Selat v. Ridge, 117 Mo. 553; Charles v. Critchfield, 66 Mo.App. 442; Morgan v. Keller, 194 Mo. 663; Sallee v. Murray, 113 Mo.App. 253; Perrin v. Kimberlin, 110 Mo.App. 661; Sills v. Burge, 141 Mo.App. 148; McCray v. Pfost, 118 Mo.App. 672; Curry v. Whitmore, 110 Mo.App. 204; Connannon v. Milling Co., 156 Mo.App. 79; Reiger v. Thompson et al., 125 Mo.App. 541. (3) Where nothing is said and no agreement made as to the kind and character of title the law implies that the principal will convey a good title. Reiger v. Thompson, supra. In this case if, as defendant claims, he contracted in his representative capacity so as not to bind himself individually, then the contract was a mere nullity and unenforceable as against the estate, and defendant was individually liable on the contract. Rhodes v. Frazer, 204 S.W. 547; Bledsoe v. Lombard, 194 S.W. 518; Matson v. Pearson, 121 Mo.App. 120. (5) As to whether the contract was one by defendant in his representative capacity was, to take the most charitable view, a question for the jury. That defense, under proper instructions, was submitted to the jury, and found against defendant. This court, under such circumstances, will not review the credibility of the witnesses or the finding of the jury. Bliss v. Bliss, 142 S.W. 1081; Paul v. Telegraph Co., 164 Mo. 233; Linn v. Railroad, 164 Mo.App. 445; Distler v. Railroad, 163 Mo.App. 674. (6) The question involved in this case was, whether or not the contract was made as testified by plaintiff and his witnesses; and, in determining whether or not defendant contracted in his representative capacity, it was proper for the jury to take into consideration what the parties said and did. Internal knowledge of the parties, uncommunicated to one another, their mental reservations and secret evasions will not be permitted to destroy the binding effect of a contract evidenced by express words and acts. Embry v. McK. D. G. Co., 105 S.W. 777.
This is an action to recover a broker's commission. The petition alleges that in May, 1916, plaintiff and defendant entered into a contract whereby it was agreed that if plaintiff would procure a purchaser for a certain lot and building thereon in Union, Missouri, known as the Zehrt...
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