Chapin v. Cherry

Decision Date31 May 1912
Citation147 S.W. 1084
PartiesCHAPIN et al. v. CHERRY.
CourtMissouri Supreme Court

Appeal from Circuit Court, Jackson County; John G. Park, Judge.

Suit by John F. Chapin and another against William P. Cherry. Judgment for plaintiffs, and defendant appeals. Reversed and remanded, with directions to dismiss the bill.

This suit was instituted by the plaintiffs against the defendant to have the latter declared a trustee for the former in and to an undivided two-thirds of a tract of land, containing four acres, in Kansas City, Mo., alleged to have grown out of a fiduciary relationship that existed between them. At the beginning of this controversy, the defendant was president and general manager of the Cherry-Tilden Live Stock Commission Company, at Kansas City, with its office at the stockyards. The plaintiff Chapin was a speculator at the stockyards—that is, he was buying and selling live stock on his own account in the yards—and the plaintiff Farrar was a dealer in speculator's paper—that is, he loaned money to speculators, and he is now a practicing attorney at law in Kansas City. Inasmuch as this is an equitable proceeding, and must be determined anew by this court from the evidence introduced, giving due consideration to the findings of the trial court, it becomes necessary to state briefly, at least, the principal parts of the testimony of the plaintiffs and defendant; they being the three parties to the transaction under consideration. And in doing so it should be borne in mind that there was but one conversation ever had between all three of the parties regarding the proposition to purchase the property by them, and that took place on the day the three went out to the property on a street car for the purpose of viewing it, which will be specially noticed later.

The principal parts of plaintiff Chapin's testimony in the case are as follows: "Q. Now, after you got out there to the land, what did you do? A. Why, we looked the ground over and paced it off. Q. Did you go all over it? A. Yes, sir. Q. Well, what did you say? A. I told Mr. Cherry it could be bought for $5,000. Q. What did he say? A. Mr. Cherry thought it was a bargain. Q. What did Mr. Farrar say? A. Mr. Farrar thought so, too. Q. I don't want to know what he thought. What did he say? A. Mr. Farrar said, `We will buy this ground.' * * * Q. And then you said, `I think the land ought to be bought'? A. I didn't say anything about it. Q. You didn't say anything? A. I didn't make any remark. I says, `It can be bought for $5,000.' Mr. Cherry says, `We will buy this piece of ground.' Q. Mr. Cherry repeated right after you, `We will buy this piece of ground'? A. Yes, sir; it was a general conversation and agreement made right there on the ground. Q. I don't want to know what the general conversation was. I want to know what each one of you gentlemen said about it. A. Well, I can say Mr. Cherry said: `We will buy this ground together. We will go and buy together.' Q. That was his language, `We will go and buy this land together,' was it? A. Well, he says, `This ground looks very cheap. It will double itself.' Q. That is what he said, isn't it? A. And it is worth $10 a foot or more. * * * Q. Now what was said about paying for it? A. What was said? Q. Yes. A. Well, I don't know as there was anything said. We didn't have much conversation with Mr. Cherry in regard to paying for this ground at all. I was looking after my part of it. Says I: `I can handle my end of it by having a little time to dispose of some little property I have got. I can barely pay for mine.' Q. Your understanding was that you were to pay the cash for your part of it, wasn't it? A. There was no understanding at all, sir. Q. What understanding did you have about it as to the payment of it? A. We didn't get that far along in the trade. We hadn't bought it. * * * Q. So far as you were concerned, Cherry was not going to furnish the money for your part of it? A. Mr. Cherry, as far as I was concerned, I hadn't made any arrangements with him; no, sir. Q. If there was any agreement out there between you gentlemen that Cherry was to furnish all the money and you to owe him your proportionate part, you didn't understand it that way, did you? A. Yes; Mr. Cherry volunteered in his conversation. He says, `I have got some idle money, and we will buy this property.' Q. I will ask you if, when your deposition was taken, this question was asked you and this answer given: `Q. How much money were you to furnish? A. My third of the money, I suppose. Nothing was said. A man would have to put up his money if he got a third interest in it.' Was that question asked you and that answer given? A. I think that is right, if that is the way it is there. Q. Was that answer true? A. I expected to pay my part of it. I don't expect any man is going to carry me on a real estate deal without security, or without putting up my money on it. Q. That is what I am trying to get at. Your understanding of it was that you were to pay it, go in together on it, and each one furnish your proportionate part of it in cash, wasn't it? A. Why, we were to pay for it, I suppose; yes, sir. Q. That was your understanding, and you were making arrangements to put up your third of the money in cash, were you not? A. Yes, sir, after we had it bought, but we never had it bought. * * * Q. And Mr. Cherry never was to put up any money for you? A. I never asked him to put up a cent for me. If he came to me after we had made the contract, I would raise my part of the money. * * * Q. I will ask you if the following questions were asked you and the following answers given: `Q. Now, in your conversation with Mr. Cherry out there, were you to put up your third of the money? A. Certainly I was. Never had any conversation to the contrary. I didn't speak to Mr. Cherry about putting up any money for me or for us. Q. Did Mr. Cherry ask you out there if you had the money to pay for your third? Did you ever have any conversation with him about putting up the money to go out there? A. No, sir. Q. Did you ever ask Mr. Cherry to put up the money? A. No, sir.' Were those questions asked you and those answers given? A. Yes, sir. Q. Were they true? A. Yes, sir. * * * Q. I will ask you if the following questions were asked and the following answers given: `Q. Now, was Mr. Cherry to furnish the $4,500, and you and Mr. Farrar to owe him each one-third of the purchase price? A. I don't think so, no, sir; I didn't understand it that way at all. I know I was preparing myself to pay for my part of it.' Was that question asked and that answer given? A. Yes, sir. Q. Was it true? A. Yes, sir. Q. And is it true now? A. Yes, sir. Q. I will ask you if the following questions were asked and the following answers given: `Q. You say that Cherry said something about having some idle money? A. Cherry made a remark that he had some idle money that he had no use for at the present time; that in a few days he would have some from Illinois. Q. Did he offer to let you have that money without interest? A. No, sir. Q. Did he offer to use that money to buy land? A. Not to my knowledge. Q. Did he request to be allowed to buy the land with that money? A. No, sir; he did not. Q. Wasn't something said to you there about Cherry advancing the money and you paying him the interest? A. No, sir; I don't think so. Q. Wasn't there anything said there about Cherry advancing the money? A. No, sir; I don't think there was. For I know I was preparing to buy my share if we bought it.' Were those questions asked, those answers given? A. I think they was, sir. Q. Were they true? A. They were true. Q. I will ask you if the following questions were asked and the following answers given: Q. Is it true that he proposed to advance the money and you offered to become indebted to Cherry in that amount? A. No, sir; I don't think so. Q. Did Mr. Farrar offer to become indebted to...

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