Campbell v. Boyers
| Decision Date | 28 March 1912 |
| Parties | CAMPBELL et al. v. BOYERS et al. |
| Court | Missouri Supreme Court |
In Banc. Appeal from St. Louis Circuit Court; D. G. Taylor, Judge.
Action by Susan E. Campbell and others against John A. Boyers and others. From a judgment for plaintiffs, defendants appeal. Affirmed.
W. A. Kinnerk, for appellants. Robert & Robert, for respondents.
The pleadings are of too great length to be set out in this opinion. In the second amended petition, on which the final decree was entered, it is alleged, in brief: That the plaintiffs are two women, unaccustomed to the transaction of business, and that the defendant Boyers, an architect and builder, was regarded as an old and trusted friend of the family; that plaintiffs owned and resided upon a lot in said city, and, with a view of improving the same, conferred with said Boyers and wholly relied upon his advice as to making the proposed improvement; that a written contract was entered into between plaintiffs and said Boyers, by the terms of which, in consideration of the sum of $4,770, Boyers was to remove the old building to the back part of the lot and erect a new brick structure to be used and occupied as flats, on the former site of the building removed; that plaintiffs agreed to execute two trust deeds to said Boyers in payment for said improvement, one for $4,000 to be executed at the date of said agreement, and the other for $770 when the work was done; that the old house was removed and the new building erected.
That the said Boyers fraudulently induced plaintiffs to execute the first trust deed for $4,200 and the second trust deed for the balance of the amount to be paid, before the completion of the work, and that plaintiffs, relying upon and having confidence in said Boyers, did as he directed; that an interest note matured at intervals of six months on the first trust deed, and of three months on the second; that plaintiff's thereafter learned that said trust deeds were for borrowed money, of which fact they were ignorant, as they were of all other provisions of the trust deeds at the time of their execution.
That said building was so fraudulently constructed by said Boyers, and the work so fraudulently done, that it was not worth more than one-half of what plaintiffs agreed to pay therefor; that said Boyers, as trustee in the second trust deed, caused said property to be advertised and sold, and through his attorney purchased the same, and as such trustee executed a deed therefor to the defendant Mary A. McCarty, who held title as agent for said Boyers; that said Mary A. McCarty had instituted unlawful detainer proceedings against the plaintiffs to recover possession of the property; that none of the other defendants have any interest in the property, except as trustees for said Boyers.
Plaintiffs prayed that said second trust deed, the deed from Boyers to defendant McCarty, and an unrecorded quitclaim deed from said McCarty to Boyers, be canceled and for naught held; that defendant Freihaut, holder of the first trust deed, be required to credit the sum of $1,815 upon the principal note secured thereby, and for an accounting of rents and profits as to defendant Boyers, and for general relief.
Answers were filed to each of the first and second petitions by all of the defendants, and to the second amended petition by all except defendant Boyers.
The case was tried in December, 1906. At the close of all the evidence, the court announced that, on the evidence introduced, relief could not be granted upon the pleadings as they stood, and suggested to counsel for plaintiffs that the petition be amended to conform to the proof, whereupon plaintiffs filed a second amended petition, which petition defendant Boyers, without having withdrawn his answer, filed a motion to strike out. This motion does not appear in the record. The court took the case under advisement, and on the 8th day of July, 1907, overruled defendant's motion to strike out, and rendered an interlocutory decree for plaintiffs. No exception was saved by defendant Boyers to the action of the court in granting leave to file the second amended petition, or to the court's action in overruling the defendant's motion to strike out the same, nor was the court asked for time to file an amended answer thereto. The interlocutory decree ordered, inter alia, that defendant Boyers make an accounting of the rents and profits of the property while in his possession, and at the October term, 1907, the court appointed a referee to take such accounting and report his finding to the court. The referee heard the evidence and filed his report, whereupon the court, at the said October term, entered a judgment and decree confirming the report in part and disapproving it in part. During the said October term, the defendant Boyers filed his term bill of exceptions to the action of the court in sustaining plaintiffs' oral exceptions to the report of the referee. This bill was duly allowed, signed, and filed. Thereafter, and during said October term, the court set aside its judgment and decree based upon the report of the referee, and on December 2, 1907, at the December term of court, entered its final judgment and decree in favor of plaintiffs. The defendants in due time filed their motions for new trial and in arrest, which were overruled, exceptions saved, and a bill of exceptions regularly allowed, signed, and filed.
The term bill was not included in the final bill of exceptions, nor was the ruling which had been excepted to and saved in the term bill included as a ground of the motion for...
To continue reading
Request your trial
-
Hilderbrand v. Anderson
...225 Mo.App. 837, 29 S.W.2d 193, 195(5); State ex rel. Christine v. Taylor, supra, 206 S.W. loc. cit. 249-250(3); Campbell v. Boyers, 241 Mo. 421, 145 S.W. 807, 809(4); Bremen Bank v. Umrath, 55 Mo.App. 43, 50(4); Parks v. Thompson, 363 Mo. 791, 253 S.W.2d 796, 798.10 State ex rel. Reed v. H......
- Campbell v. Boyers
-
Wood v. Wells
...(N. S.) 994; Forrister v. Sullivan, 231 Mo. loc. cit. 352, 132 S. W. 722; Mugan v. Wheeler, 241 Mo. 376, 145 S. W. 462; Campbell v. Boyers, 241 Mo. 421, 145 S. W. 807; Burns v. Prudential Ins. Co., 295 Mo. loc. cit. 694, 247 S. W. 163. The case therefore stands in this court as though the t......
-
Durwood v. Dubinsky
...practice. See State ex rel. Webster v. Johnson, 132 Mo. 105, 33 S.W. 781; Vette v. Geist, 155 Mo. 27, 55 S.W. 871; and Campbell v. Boyers, 241 Mo. 421, 145 S.W. 807, where that procedure was That part of the judgment pertaining to the imposition of a constructive trust must be reversed and ......