Dennison & Company v. Aldrich

• Decision Date: 04 December 1905
• Citation: 91 S.W. 1024,114 Mo.App. 700
• Parties: DENNISON & COMPANY, Respondents, v. J. E. ALDRICH, Appellant
• Court: Kansas Court of Appeals

91 S.W. 1024

114 Mo.App. 700

DENNISON & COMPANY, Respondents, v. J. E. ALDRICH, Appellant

Court of Appeals of Missouri, Kansas City

December 4, 1905

Appeal from Jasper Circuit Court.--Hon. Hugh C. Dabbs, Judge.

AFFIRMED.

Order affirmed.

A. E Spencer, C. V. Buckley and Thomas & Hackney for appellant.

(1) The contracts of option given by the owners to plaintiffs were complete in their terms, and the court was right in excluding oral evidence of the negotiations leading up to their execution. These negotiations are conclusively presumed to be merged in writing. McClurg v. Whitney, 82 Mo.App 625; Howard v. Scott, 98 Mo.App. 509; Ins. Co v. Buchalter, 83 Mo.App. 504; Tufts v. Morgan, 87 Mo.App. 98; Blake Mfg. Co. v. Jaeger, 81 Mo.App 239. (2) The general rule is, that no verbal agreements between the parties to a written contract, made before or at the time of the execution of such contract, are admissible to vary its terms or affect its construction. All such verbal agreements are considered as merged in the written contract. 1 Beach Mod. Contracts (1 Ed.), page 688, sec. 579. (3) It was competent for the defendant to show that the sale was not made through the instrumentality of plaintiffs nor within the life of nor under their options, but was made through the instrumentality of a third party and with new incidents. Beauchamp v. Higgins, 20 Mo.App. 514-518; LaForce v. Washington University, 106 Mo.App. 524. (4) The court did not commit error in giving or refusing instructions. The only right plaintiffs had to any compensation was dependent upon bringing about a sale within the time limited. Page v. Griffin, 71 Mo.App. 524; Stinde v. Blesch, 42 Mo.App. 578; Beauchamp v. Higgins, 20 Mo.App. 514; La Force v. Washington University, 106 Mo.App. 524; Fultz v. Wimer, 34 Kas. 576; Halperin v. Callender, 39 N.Y.S. 1044. (5) The plaintiffs having thus adopted this theory of the case and asked this instruction submitting that issue to the jury, cannot now be heard to complain in this court of the giving of the instructions by the court, either of its own motion or for defendant, embodying the same theory. Holmes v. Braidwood, 82 Mo. 610; Noble v. Blount, 77 Mo. 235; Berkson v. Ry., 144 Mo. 220; Dunlap v. Griffith, 146 Mo. 292; Hogan v. Brady, 155 Mo. 670; Thorpe v. Ry., 89 Mo. 650; Marks v. Davis, 72 Mo.App. 564; Drug Co. v. Self, 77 Mo.App. 289; Phelps v. City of Salisbury, 161 Mo. 1.

George Hubbert and O. L. Cravens for respondents.

(1) The defendant is liable upon the established facts in this case to plaintiff for the money sued for, upon the ground that his acts in procuring the money must be attributed by the law to his performance of his trust obligations to plaintiffs, which he was not at liberty to throw off and disregard. Trice v. Comstock, 121 F. 620; Davis v. Hamlin, 108 Ill. 393, 48 Am. Rep. 541; Grumley v. Webb, 44 Mo. 454, 10 Am. Dec. 304; Eoff v. Irvine, 108 Mo. 383, 32 Am. St. 609; Gardner v. Ogden, 78 Am. D. 192; White & Tud. Lea. Cas. (3 Am. Ed.), 91-7; Winn v. Dillon, 28 Miss. 294-5; People v. Twp. Bd., 11 Mich. 222-5; Lockhart v. Rollins (Idaho), 21 P. 413; Tisdale v. Tisdale, 64 Am. Dec. 775; McKinley v. Williams, 74 F. 94-5; Ins. Co. v. Smith, 117 Mo. 261; 38 A. St. 656; Gower v. Andrews, 59 Cal. 119. (2) It seems equally clear that defendant has forfeited his part of the commission by reason of his misconduct, after entering the employ of plaintiffs, by resorting to McDonald and secretly procuring him to secure the option from under plaintiffs and against their interests, and then acting adversely to plaintiffs under McDonald's employment and effecting a sale; and, when the sale was made, collecting a $ 4,000 commission and denying the rights of plaintiffs to the same. Trice v. Comstock, 121 F. 620; 23 Am. and Eng. Ency. Law (2 Ed.), 921; 12 Am. and Eng. Ency. Law (2 Ed.), 671; 1 Am. and Eng. Ency. Law (2 Ed.), 1102; Brock v. Hart, 57 Mo.App. 610; Mec. on Agency, sec. 1027; Paul v. Minneapolis Co., 87 Mo.App. 654. (3) It was not the lawful privilege of Aldrich to turn about, after being in the service of the plaintiffs, and dispute their right to represent the land-owners concerning the very subject of his employment. An agent may not deny the title of his principal to the subject-matter of the agency. 1 Am. and Eng. Enc. Law (2 Ed.), 1091; Collins v. Tillou's Admr., 68 Am. Dec. 398; Whitman v. Felton, 28 Mo. 601; Whar. Agen., sec. 242; Mech. Agen., sec. 526; Vette v. Geist, 155 Mo. 34. (4) As suggested in our preliminary statement, this action for money had and received, under a trust beginning in agency, is peculiarly adapted to get to the bottom of such a transaction. And to make the remedy available and effective, the courts will not allow themselves to be restrained by narrow rules or hair-splitting distinctions in the matter of pleading. Our petition covers the case. Cooley on Torts (2 Ed.), 526, 615; 2 Grl'f on Evi., sec. 117; Deal v. Bank, 79 Mo.App. 262; Johnson v. Bank, 116 Mo. 568. (5) The circuit court had erred in its rulings admitting, as a defense below, the facts pertaining to the collateral and fraudulent scheme, between Aldrich and McDonald, to cheat plaintiffs out of the sale and their commission. Day v. Porter, 161 Ill. 235, 43 N.E. 1073; Goldsmith v. Cook, 13 N.Y.S. 378; Folinsbee v. Sawyer, 28 N.Y.S. 678; Veozie v. Parker, 72 Me. 443; Crone v. Company, 85 Mo.App. 601; Lipscomb v. Cole, 81 Mo.App. 53; Cunliff v. Hausman, 97 Mo.App. 467; Leech v. Clemons, 59 P. 230. (6) The rule excluding parol testimony from adding to a written memorandum, or even contract, does not apply to collateral agreements, whether about lateral matters or with third persons. Here the only contract in direct issue, is the one between plaintiffs and defendants. The contract between plaintiff and the landowners was collateral in a double sense, and belongs to both the classes above mentioned. So, for double reasons the court was wrong in excluding oral evidence as it did. 1 Grlf. Ev., 279; McMaster v. Ins. Co., 14 Am. Rep. 239; Bruce v. Roper Co., 24 Am. St. 657; Brown, Parol Ev. , sec. 28; Condict v. Cowdry, 123 N.Y. 463, 25 N.E. 946.

OPINION

JOHNSON, J.

Plaintiffs sued defendant, as their agent, to recover the sum of four thousand dollars, received by the latter as a commission for the sale of some mining property in Jasper county. It is claimed defendant obtained the money as the fiduciary of plaintiffs, and then repudiated his obligation to them to account for it. The trial resulted in a judgment for defendant. A motion for a new trial was filed by plaintiffs, and upon hearing, sustained by the trial judge, who assigned the following reasons for his action: "That the court erred in giving instructions for defendant, and in refusing instructions asked for by plaintiffs, in modifying instructions asked by plaintiffs, and giving instructions on the court's own motion, and because the court erred in admitting incompetent and irrelevant evidence on the part of defendant, and rejected competent and legal evidence offered by plaintiffs." Defendant, after unsuccessfully moving for an order to set aside that sustaining the motion for a new trial, brought the case here upon appeal. The scope of the issues presented by the pleadings is comprehensive of any right of recovery in plaintiffs, either under the evidence admitted, or that offered but improperly excluded, and therefore, we will not refer to the specific averments of the petition, but will determine the questions of law arising from the facts appearing in the evidence before us.

Plaintiffs were partners, engaged at Joplin in the business of dealing in real estate as agents for buyer or seller. Defendants also followed the same vocation. Clinton C. Carrick owned certain mining property which he desired to sell for the price of $ 16,000. The C. C. & McDonald Mining Company, of which Ed. F. McDonald was a member and spokesman, owned a mining lease upon a portion of the Carrick land, and was engaged in conducting mining operations thereon. The company desired to sell its lease and equipments, pricing it at $ 6,000.

According to the testimony of plaintiffs, Carrick and McDonald, on May 16, 1903, employed plaintiffs to act as agents of the owners of the land and the leasehold in the procurement of a buyer to purchase the entire property at a sum that would realize $ 22,000 for the owners, of which Carrick was to have $ 16,000 and the C. C. & McDonald Mining Company $ 6,000. Plaintiffs were to have the excess of the purchase money over $ 22,000 as their commission. The employment was to end on June 1st following, but with the understanding that it would be extended if plaintiffs were then in a fair way to procure a purchaser. To aid plaintiffs in their efforts, by investing them with an indicia of authority, as well as to protect them in their right to the benefit agreed upon in case a sale was made, what are termed option contracts were written and delivered to plaintiffs, under the terms of which plaintiffs were given the right to purchase all the property for the aggregate sum of $ 22,000, provided they exercised that right by June 1st. Plaintiffs contend these written instruments did not, in fact, contain the real agreement made by the parties, but as stated, were considered as a token of authority as well as a written acknowledgment of their right to retain the proceeds of a possible sale in excess of the sum mentioned. Plaintiffs further say that a few days after their employment they engaged the services of defendant to assist them in finding a purchaser, disclosed to him the terms of the actual agreement between them and the owners, and agreed to give him one-third of any commission earned by them, even in case defendant's efforts were not instrumental in...