Davies v. Keiser

• Decision Date: 22 December 1922
• Docket Number: No. 23093.,23093.
• Parties: DAVIES v. KEISER.
• Court: Missouri Supreme Court

246 S.W. 897

297 Mo. 1

DAVIES v. KEISER.

No. 23093.

Supreme Court of Missouri, Division No. 2.

December 22, 1922.

Rehearing Denied December 30, 1922.

Appeal from St. Louis Circuit Court; Granville Hogan, Judge.

Action for partition by Margaret Davies against Edward H. Keiser. From a finding by the Chancellor that each of the parties was owner of an undivided one-half interest in the property, defendant appeals. Affirmed and remanded, with directions for an accounting and partition.

Sam B. Jeffries, A. B. Simpson, and F. F. Plummer, all of St. Louis, for appellant.

Frank A. Thompson, of St. Louis, for respondent.

WALKER, J.

This action was for the purpose of partitioning certain real estate in the city of St. Louis and to secure an accounting for the rents and profits arising therefrom. There was a trial before the court, resulting in favor of the plaintiff, from which the defendant appeals.

In the fall of 1903, P. F. Vander Lippe was in the real estate and loan business in the city of St. Louis. John Davies was an architect and a builder. E. H. Keiser, the defendant herein, had for many years prior and subsequent to 1906 been building houses, selling them, and investing in real estate mortgages, stock, and other securities. Vander Lippe had for sale, at $2,500, two lots adjacent to each other, aggregating 100 feet, on Cottage avenue, city of St. Louis, belonging to a man named Smith. Vander Lippe offered the lot to Davies for that price, $1,500 of the same to be paid in cash, and Vander Lippe agreed to make two building loans of $7,500, secured by deeds of trust on the property, with the proceeds of which two flats were to be erected thereon. A second deed of trust for $1,000 was to be given by Davies for the balance of the purchase price, with a power of attorney to Vander Lippe to collect the rents on the flats to be erected, and apply the same to the payment of the second deed of trust. When Vander Lippe made this proposition, Davies consulted with Keiser and explained to him how the lots could be bought and paid for and the buildings erected thereon as indicated. Keiser agreed with Davies that he would furnish the required $1,500 in cash. Before the agreement was consummated, Vander Lippe had conferred with a Mr. Wright, and the latter agreed that he would purchase the two first deeds of trust or the building loans of $7,500 each, from the proceeds of which the two flats were to be erected. After the talk between Davies and Keiser, the latter paid the $1,500 in cash and the two lots were deeded by Smith to a strawman named Cooch. Cooch executed the two deeds of trust for $7,500 each, one covering each lot, and gave a second deed of trust for $1,000 covering both the lots, and executed a power of attorney to Vander Lippe to collect the rents from the fiats when erected, to pay off the second deed of trust. The two $7,500 deeds of trust were turned over to Vander Lippe to be transferred by him to Wright, and Cooch made a quitclaim deed to the lots to the defendant Keiser. At the time these papers were signed, Davies and Keiser entered into a formal written contract, setting forth the above facts and their interest in the property. This is the agreement which is the foundation of this suit, as set forth in the pleadings.

It was understood that Vander Lippe was to get a commission of 2½ per cent., or $375 for the sale of the two deeds of trust, to be taken out of the $15,000 realized from the sale of the notes secured by the deeds. After these papers were executed and the deeds of trust were in the hands of Vander Lippe for sale to Wright, Keiser stated to Davies that he would take the deeds of trust and by using them as collateral at the Jefferson Bank secure the loan of $15,000 with which to build the flats, and by this course avoid the payment of the $375 to Vander Lippe for securing the loan. Davies assented to this course. Keiser obtained from Vander Lippe the two deeds of trust, and thereafter retained them, but told Davies that he had nut them up at the Jefferson Bank as collateral to raise the $15,000. Several years afterwards Keiser had them released on the record.

It was contemplated that the flats to be erected by Davies were not to cost more than $15,000. He was not to make any profit in their building, but was to contribute his services as an architect and builder to equalize the $1,500 Keiser had advanced, the agreement, as before stated, being that Keiser should furnish $15,000 in cash and Davies $1,500 in services in the drawing of the plans, and the supervising, superintending, and building of the flats. Davies testified that, had the builder's profit been included, the fiats would have cost $16,500 to $17,000; that when Keiser advanced the money from time to time he (Davies) actually built the flats for $15,000, but after they were completed, as is usual, there were some extras mutually agreed to by Keiser and him, which increased the total cost. These extras were gas fixtures, granitoid walks, sheds in the rear, and other necessary things. These extras cost several hundred dollars and the money to pay for them was advanced by Keiser in accordance with an agreement between the parties. The erection of the flats was started in December, 1906, and they were completed in March or April of the following year. There is no dispute that Davies drew the plans for the flats and superintended their erection; or that he never received anything for his services from any source.

On the second day of the trial, after plaintiff's testimony had been taken, the defendant filed an amended answer stating that the contract, after it had been formally executed, was abandoned by an oral agreement between Davies and Keiser. In support of this abandonment as pleaded, Keiser testified that Vander Lippe was unable to sell the two $7,500 deeds of trust and that he asked Davies if he (Davies) would erect the buildings for $15,000, and Davies said he would, and that he (Keiser) then advanced the $15,000, and the buildings were erected by Davies in accordance with this oral agreement. Vander Lippe denied that he was unable to sell the two deeds of trust, and stated that he had them sold to Wright, and that the $15,000 would have been forthcoming when Davies or Keiser wanted it. Davies testified that Vander Lippe had perfected arrangements for the sale of the notes secured by the deeds of trust, and that there never was any question but that this sale could have been consummated by Vander Lippe. He denied that the deeds of trust could not have been sold or that he entered into an oral agreement with Keiser by which the written contract was abandoned, as testified to by the latter.

The flats, when completed in March or April, 1907, were in accordance with the written agreement placed in Vander Lippe's hands to collect the rents, and the rents were collected by him under power of attorney, and were applied to carry the property and to make payments on the second deed of trust.

About 1910 or 1911, Vander Lippe became pecuniarily embarrassed, and, by mutual agreement between Davies and Keiser, the latter undertook to handle the property and place the collection of the rents with the Cornet & Ziebig Real Estate Company in St. Louis. Keiser, however, has been handling the property ever since, is handling it now, and has enjoyed all the rents and the profits therefrom. Vander Lippe testified that while he was collecting the rents he made several statements of collections to Davies and always made them to Keiser, that he knew that Davies had an interest in the property, because of the written contract he had prepared.

Davies testified that about 1912 he asked Keiser for an accounting, but that Keiser told him "the property don't pay and there is nothing coming." Thereafter, on the last day of the year 1912, Davies recorded the contract sued on. Thereafter he testified that he made two or three demands upon Keiser for an accounting. About every two years he would ask him for an accounting, but Keiser would always make the same reply, "the property don't pay, and there is nothing coming." According to Davies' testimony, Keiser never contended that he was the sole owner of the property, nor did he contend that Davies had no interest therein, hut conceded the interest and at the same time claimed that the property was not paying the carrying charges. Davies further testified that several months before this suit was instituted, in a conversation about the property, Keiser informed him that he was going to make him a present of $500 some day. Thereupon, Davies said he did not want the $500, but "what I want is the square thing"; that some time before this, while he was settling another suit with Keiser, the latter wanted him (Davies) to execute a quitclaim deed to the property, but that he refused to do so, saying that this property was another matter entirely. Keiser did not deny these statements; either that he was going to give Davies $500, or that he wanted a quitclaim deed. Keiser admitted upon the witness stand that when the attorney for the plaintiff wrote him before this suit was instituted, formally asking for an accounting, that he did not deny that an accounting was due, but simply made no reply.

It is further shown that after these flats were erected Keiser and Davies did business with each other for several years, and during that time put up more than 20 houses. Davies testified that he trusted Keiser to do the right thing and to treat him fairly, inasmuch as Keiser was his trustee, and he trusted him to render an accounting when there was a balance due under the contract. During this time Davies became financially involved and was unable to carry on any litigation. He was indebted to his daughter for services rendered, and on September 8, 1920, he assigned to her his interest in the contract and the right to an accounting against the defendant, and at the same time executed to her a quitclaim deed to...