Cordia v. Connolly

• Decision Date: 06 May 1924
• Docket Number: (No. 18038.)
• Parties: CORDIA v. CONNOLLY et al.
• Court: Missouri Court of Appeals

261 S.W. 729

CORDIA v. CONNOLLY et al.

(No. 18038.)

St. Louis Court of Appeals. Missouri.

May 6, 1924.

Appeal from Circuit Court, Washington County; E. M. Dearing, Judge.

"Not to be officially published."

Suit by E. F. Cordia against F. X. Connolly and another. From a judgment granting insufficient relief, plaintiff appeals. Reversed and remanded.

James V. Frank and Ernest A. Green, both of St. Louis, B. H. Marbury, of Farmington, and William R. Edgar, of Ironton, for appellant.

C. E. Richeson, of Potosi, and James Booth, of Pacific, for respondents.

SUTTON, C.

This is a suit in equity for an accounting and settlement of a joint adventure entered into between the plaintiff and defendants for the purchase, operation, and sale of a tract of agricultural and mining lands, consisting of approximately 1,685 acres, known as the United States Barytes Company land, located at Tiff, in Washington county, Mo.

The court found that the plaintiff was not entitled to any interest in the property or profits of the joint adventure, but that he was entitled to recover $1,606.66, the amount of money contributed by him to the joint adventure, and judgment was given accordingly. Plaintiff appeals.

The tract of land was purchased in October, 1916, from J. F. Schlafly, by plaintiff and defendants, and by agreement the title was taken in the names of the defendants. Plaintiff was a friend and business associate of Mr. Schlafly. Defendants were not acquainted with Schafly. They knew the land, however, and desired to purchase it. Plaintiff and defendants met and discussed the purchase of the land. Plaintiff informed the defendants that he believed he could purchase the land, and, through the offices of the plaintiff, pursuant to some sort of an arrangement or understanding between plaintiff and defendants, negotiations were entered into with Mr. Schlafly for the purchase of the land. The final agreement for the purchase of the property was reached at a conference in St. Louis in which the plaintiff, defendants, and Schlafly participated. The purchase price agreed upon was $39,400. It was agreed that $5,000 of the purchase price should be paid in cash, that the defendants' personal note should be given to Schlafly for $5,000 payable in six months, that $9,400 should be paid upon the delivery of the deed to the Washington County Bank, and that a note secured by deed of trust on the land should be given to Schlafly for $20,000. Pursuant to this agreement the initial cash payment of $5,000 was made to Schlafly, the defendants gave their personal note to Schlafly payable in 6 months, in the sum of $5,000, and gave their note secured by deed of trust to him for $20,000, and made the further payment of $9,400, on delivery of the deed to the Washington County Bank. To make this further payment they borrowed from the bank $9,400, and gave their note to the bank for that amount. Plaintiff and defendants contributed equally to the initial cash payment of $5,000. The notes giver by defendants were afterwards paid off from the proceeds of the farming and mining operations and from the sale of the lands. At the time of the purchase of the lands plaintiff and defendants executed in duplicate the following contract, identified in the record as Plaintiff's Exhibit 3:

"For and in consideration of the sum of $1 and other valuable considerations paid by E. F. Cordia to S. F. Thurman and F. X. Connolly, the receipt of which is hereby acknowledged, it is agreed by and between the parties hereto, that on the payment of the sum of $39,400, being the purchase price in full paid by the said S. F. Thurman and F. X. Connolly for the lands and property this day acquired from J. F. Sehlafly and wife known as the United States Barytes Company land located at Tiff, Mo., in Washington county, Mo., the said E. F. Cordia shall become the owner of the undivided one-third interest in all of said lands."

This contract was dated October 10, 1917. The account books kept by the defendants show, by entries dated October 13, 1917, a credit to defendant Thurman of $1,066.66, a credit to defendant Connolly of $1,666.07, and a credit to the plaintiff of $1,666.66. It is conceded that these entries were made to evidence the amounts contributed to the initial cash payment of the purchase price of the land. The books also show an entry of date October 16, 1917, which credits the Washington County Bank with $9,400. It is conceded that this entry represents the transaction in which the defendants borrowed from the bank the money to make the second cash payment of $9,400 under the contract of purchase.

The proof is most cogent that the lands were purchased largely through the efforts or intermediation of the plaintiff, pursuant to an agreement between the plaintiff and defendants that the plaintiff should have a one-third interest in the net profits derived from the operation and sale of the lands, or a one-third interest in the lands remaining undisposed of after the purchase price had been realized from the proceeds of the sale of lands and agricultural and mineral products, and that the contract before set out was pre.. pared and executed by the parties in an attempt to properly evidence this agreement.

Plaintiff testified:

"I had dealings with the defendants Dr. S. T. Thurman and F. X. Connolly with reference to the purchase of a tract of land known as the United States Barytes Company land from J. F. Schlafly in the month of October, 1917. I had known Mr. Schlafly for five years, and had been in business with him for some length of time. I purchased the land from Mr. Schlafly by request of Dr. Thurman and Frank Connolly. They asked me if I could buy the land and what terms I could make with them. The land was valuable for farming and barytes commonly called tiff. Dr. Thurman, Mr. Connolly, and myself had an agreement among ourselves to buy the land. I negotiated the sale with Mr. Schlafly. I went to see Mr. Schlafly about the purchase of the land at the instance and request of Mr. Connolly and Dr. Thurman I saw Mr. Schlafly in regard to buying the property with the consent of Dr. Thurman and Mr. Connolly. They told me to buy the property. All three of us agreed to buy the property. Dr. Thurman and Mr. Connolly both asked me to speak to Mr. Schlafly about what the lowest figure would be to buy this property. I saw Mr. Schlafly, and found his lowest price was $39,400, and reported that to Connolly and Thurman. They said it was all right if we could arrange the financial end of it. We tailed over what each one's share would be in it, what we would do with the property, and what each one would share of it, in case we purchased it. They said they would buy the property, and I would help finance the deal, and I would be a silent partner in the transaction. I was to receive a one-third interest in the property after the purchase price of the property would be received either by sale of the property, or crops, or royalties had been received to the amount of $39,400. I was to become a one-third owner or have a one-third interest after they received the $39,400, regardless of whether they got the money out of the property or sold it. I said that was satisfactory to me. They gave a deed of trust for $20,000, and paid the rest in notes and cash. There was $5,000 paid in cash and the balance in notes. There was one $5,000 note to Sehlafly. Connolly and Thurman signed that note. I guaranteed the payment of it, but did not sign it. I guaranteed all these payments. Each one paid one-third of the cash payment of $5,000. I paid $1,666.66. It was under the terms of this agreement that I have described that this land was purchased. The title was taken in the names of Connolly and Thurman."

Plaintiff further testified that the written contract identified as Plaintiff's Exhibit 3 was prepared by M. E. Rhodes; that it was signed by both defendants and delivered to the plaintiff; and that the plaintiff signed a duplicate copy thereof, which was delivered to the defendants. Defendants admitted that the...