Crigler v. Duncan

• Decision Date: 07 January 1907
• Parties: CRIGLER v. DUNCAN.
• Court: Missouri Court of Appeals

99 S.W. 61

121 Mo. App. 381

CRIGLER v. DUNCAN.

St. Louis Court of Appeals. Missouri.

January 7, 1907.

1. MONEY HAD AND RECEIVED—PETITION.

A petition alleging a contract authorizing defendant to sell for the best obtainable price (not less than $5,500) land in which plaintiff had a two-thirds interest; fraud on the part of defendant in representing that he could sell and had sold it for $5,500, when he had sold it for $6,600, having it first conveyed to a nominal party for $5,500; that defendant, pursuant to his agency for plaintiff, collected $6,600, accounting to plaintiff for only $3,666.66, and fraudulently withholding a balance of $733.33, which defendant now has and retains; that plaintiff did not know thereof until long thereafter; that he demanded the same of defendant, and he refused to pay it; and that defendant is indebted to plaintiff in the sum of $733.33, for which plaintiff asks judgment, with interest—states a cause of action for money

had and received; the averments as to the contract and fraud being explanatory and incidental, and made as matter of inducement.

2. SAME—VARIANCE.

Where one sues for money had and received and not on express contract, recovery is not prevented by a misstatement of the contract under which defendant collected the money as plaintiff's agent; the particulars of the contract, even if material, not being of the essence of the case.

3. SAME—GROUNDS OF ACTION.

An action for money had and received will lie for money received by defendant which belongs to plaintiff, though he received it under a contract authorizing him to sell for plaintiff.

4. APPEAL — REVIEW — HARMLESS ERROR — AMOUNT OF RECOVERY.

That plaintiff in an action for money had and received recovered less than the evidence shows him entitled to is not ground for reversal on appeal by defendant.

Appeal from Circuit Court, Audrain County; J. D. Barnett, Judge.

Action by W. L. Crigler against T. B. Duncan. Judgment for plaintiff. Defendant appeals. Affirmed.

P. H. Cullen, for appellant. Fry & Rodgers, for respondent.

GOODE, J.

Plaintiff and defendant are brothers-in-law. The former resides in the state of Tennessee, and the latter in Audrain county, Mo. On the death of plaintiff's father, he and his two sisters, Mrs. Duncan, wife of defendant, and Mrs. Lonergan, inherited a farm of 220 acres in Audrain county. Subsequently plaintiff bought Mrs. Lonergan's interest, thereby becoming the owner of an undivided two-thirds of the farm, the other third being owned by Mrs. Duncan. A futile attempt had been made by plaintiff to purchase her interest. Defendant and N. S. Meyers were partners, engaged in the real estate business, under the firm name of Duncan & Meyers, in the city of Mexico, Mo. Plaintiff brought this action to recover from Duncan two-thirds of $1,100, or $733.33, alleged to be due from defendant as part of the purchase price of the aforesaid farm; defendant having sold the farm as plaintiff's agent for $6,600, accounting to plaintiff on the supposition that the price received was but $5,500. The sale occurred in the year 1902. Defendant was authorized to act as plaintiff's agent by letter, and all communications between the parties regarding the transaction were by correspondence. Most of the letters are in the record, and such portions of them as are material to the points involved on the appeal will be stated. On June 27, 1902, Duncan wrote Crigler, stating that he (Duncan) was negotiating with a party to whom he could sell the place for $5,500 if the party could get a loan through; stating further, that he (Duncan) was willing to let his interest go on this basis; that two-thirds of the purchase price would go to plaintiff without any expense except for the abstract and deed, and no charge would be made for Duncan's services; also that this was all the place would bring, as it had been shown to many persons, and no better offer received. (All italics are ours.) It should be stated that plaintiff had instituted a partition suit in the circuit court of Audrain county to have the land divided, and had given an option on his interest to the real estate firm of Lakenan & Barnes, which did business in Mexico. The option was for $6,000, and was to expire July 18th. Duncan requested Crigler, in case the sale for $5,500 was made, to dismiss the partition suit at his own expense, and pay his share of the abstract. To that letter Crigler responded July 1st, telling Duncan to close up with his man, but he must send written releases from all options given Lakenan & Barnes or others. Duncan answered July 10th, saying he had received letters from Lakenan & Barnes to Crigler, which the latter had sent with comments on them. Duncan said he noticed what Lakenan & Barnes said about selling the place for $6,000, but intimated that said price could not be obtained. He further declared he was not trying to take advantage of Crigler. Plaintiff wrote July 12th, asking Duncan how his trade was getting along, and if it was going through; that he (plaintiff) thought Lakenan & Barnes did not have a party, but only believed they could sell the farm for $6,000. The letter contained this language: "It seemed strange to me that you was trying to sell at 55 when they thought they were going to land their man at 60." The next letter from Duncan was written July 31st, and stated that he had just returned from a trip through Illinois, and that a number of prospective buyers would come to Missouri to look at the land in two or three weeks, after they were through work on their oats crops, and then there would be no trouble in getting a buyer. On July 20th plaintiff wrote that he had made a conditional sale of his two-thirds interest to Lonergan, provided Duncan did not succeed in selling for $5,500, but the latter trade was not to be interfered with. On August 24th Duncan wrote a letter, in which was inclosed a contract for Crigler to sign, authorizing the firm of Duncan & Meyers to sell the land for $5,500; that is to say, free from any cost of showing or advertising said farm to owners or commission for making sale. If said agents sell said farm for more than $5,500, they are hereby authorized to retain said increase to their own use." Duncan's said letter said the firm of Duncan & Meyers would try to dispose of the farm at a figure above that named if they could get it, but it was a hard proposition, because the place was "a wilderness of weeds." Instead of signing the inclosed contract authorizing the agents to keep any excess of price over $5,500, Crigler wrote a letter, under date of August 25th, in which he said, among other things: "I hereby authorize you, T. B. Duncan [not Duncan & Meyers], to sell my interest in the farm at Martinsburg lately owned by John W. Crigler, dead; said interest being a two-thirds part for $5,500 for entire tract; my interest in same being 2/3 of the amount, no commission to be charged me for selling said land, and no expense except making deed; provided the sale is fully consummated and entirely closed prior to the next session of the circuit court held at Mexico, Missouri." On September 8, 1902, Duncan wrote, inclosing a contract for the sale of the place, in which he said: "I have made the best terms possible, and hope they are satisfactory." Other matters are contained in the letter, Duncan saying he had got $233.33 more for Crigler than the latter gave Lonergan, and therefore thought the partition suit ought to be dismissed at plaintiff's expense.

The contract inclosed with said letter was dated September 5, 1902, and purported to be between T. B. Duncan, agent for W. L. Crigler, and Alma C. Duncan, parties of the first part, and S. J. Terrill, party of the second part. The contract provided for the sale of the farm to S. J. Terrill for $5,500, of which $2,000 was to be deposited in the Mexico Savings Bank, to be paid on certain conditions, and the balance of the purchase money to be paid on or before March 3, 1903. The parties of the first part were to make a warranty deed in 15 days, and deliver the same to said bank, to be held in escrow until full payment was made. There were other provisions not necessary to be stated. Crigler executed a deed pursuant to the contract, supposing the land had been sold to S. J. Terrill. In truth S. J. Terrill was Mrs. Sally J. Terrill, a sister-in-law of N. S. Meyers, one of the members of the firm of Duncan & Meyers. Crigler did not know Mrs. Terrill nor her relationship to Meyers. She had not bought the farm, and had never seen it, but was used as a conduit through which to pass the...