Drummond Realty & Investment Co. v. W. H. Thompson Trust Co.

• Decision Date: 06 July 1915
• Docket Number: No. 17265.,17265.
• Citation: 178 S.W. 479
• Court: Missouri Supreme Court
• Parties: DRUMMOND REALTY & INVESTMENT CO. et al. v. W. H. THOMPSON TRUST CO.

178 S.W. 479

DRUMMOND REALTY & INVESTMENT CO. et al. v. W. H. THOMPSON TRUST CO.

No. 17265.

Supreme Court of Missouri, Division No. 2.

July 6, 1915.

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Action by the Drummond Realty & Investment Company and another against the W. H. Thompson Trust Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Suit on a contract for payment of money. Judgment for plaintiffs for $9,002. Defendant has appealed.

The material parts of the petition are as follows:

"Come now plaintiffs, by their attorneys, and for their second amended petition filed herein, by leave of court first had and obtained, state that each of them is, and at all the times mentioned herein was, a corporation existing under the laws of the state of Missouri; that one James S. Ferguson, on the 10th day of February, 1899, being then the owner of a certain lot of ground with a four-story iron and brick building erected thereon, at the southeast corner of Third and Chestnut streets, in the city of St. Louis, Mo., executed a certain deed of trust or mortgage, whereby he conveyed said lot of ground, with the improvements thereon, to the said Mississippi Valley Trust Company, as trustee, in trust, to secure the holders of 80 bonds of the par value of $65,000, described in said deed of trust or mortgage, together with the interest coupons attached thereto to secure the payment of interest to accrue thereon, which deed of trust or mortgage was duly recorded in Book 1496, page 407, of the office of the recorder of deeds for said city of St. Louis, Mo.; that, by said deed of trust it was provided, amongst other things, that said Ferguson, or his assigns, should keep the improvements on said lot of ground at all times insured against damage by fire for the sum of $65,000, and that the policies for said insurance should be assigned to and be held by said trust company as such trustee in said deed of trust, and that if the improvements on said lot should be injured by fire, and the proceeds of said insurance should be sufficient to fully repair said improvements, then such proceeds should be applied to the payment of such improvements, but, if such proceeds from said insurance should be insufficient to pay for such improvements so injured by fire, then said proceeds should be applied towards the payment of said bonds and all interest accrued thereon; that thereafter said Drummond Realty & Investment Company became the owner and holder of all of said bonds and the interest coupons thereon, and so remained at all the times hereinafter mentioned; that thereafter, to wit, on the 25th day of January, 1900, said improvements on said lot so covered by said deed of trust or mortgage, as above stated, were injured by fire, and the cost of repairing such injury was then ascertained to be and was the sum of $.19,454.45.

"Plaintiffs further state that they then, for the first time, learned that said improvements upon said lot of ground had been insured against damage by fire for the further sum of $35,000 by certain policies of insurance which were not at any time in the possession of either of these plaintiffs; that plaintiffs then learned that said policies were held by, and had been assigned to, William H. Thompson, as trustee, but as to the terms upon which the same were held by said Thompson, as trustee, or the persons for whom he so acted as trustee, each of these plaintiffs is, and has been at all times, ignorant.

"Plaintiffs further state that, after the extent of the injury to said premises by said fire had been ascertained and declared to be the sum of $19,454.45, these plaintiffs asserted a claim against the insurance companies which a had issued the policies then held by said trust company, as such trustee, for the full amount or $19,454.45; and said Thompson, as trustee, asserted a claim against the insurance companies which had issued the policies of insurance then held by him, as above stated, for the sum of $6,877.86; and thereupon said insurance companies issuing the policies held by said trust company refused to pay said sum of $19,454.45 so demanded by said trust company, but offered to pay the sum of $12,576.59 to said trust company as such trustee, in full for all liability on the part of said insurance companies on account of said fire and under said policies so held by said trust company, and said insurance companies, which had issued said policies held by said Thompson, as such trustee, refused to make any payment to him on account of said damage by fire; and thereupon, on or about February 15," 1900, said Thompson promised and agreed with plaintiffs that if said trust company, as such trustee, would receive from said insurance companies, who had issued said policies held by it said sum of $12,576.59 in release and in satisfaction of the liability of said insurance companies to said trust company, as such trustee, under said policies, said Thompson would pay 35 per cent. of the cost of all repairs which said plaintiffs, or either of them, might make upon said building, until said 35 per cent. should have exhausted the full amount received, or to be received, by said Thompson, as such trustee, from the insurance companies which had issued said policies held by him.

"Plaintiffs further state: That thereafter, on or about the 12th day of April, 1900, said Thompson promised and agreed with these plaintiffs, in consideration of the agreement above set forth and in modification thereof, that if they would proceed to have the roof of the said building on said lot of ground repaired, but would delay all other repairs in and upon said building until a tenant was secured therefor, and it was ascertained what repairs would be necessary because of said fire, and what alterations of said building would be required by the tenant so secured, he would pay to plaintiffs 35 per cent. of the cost of said repairs to said coot as soon as made, and would further pay 35 per cent. of the cost of said repairs and alterations required by said tenant so secured, as soon as made, to the extent of the balance of said sum of $6,877.86 remaining after deducting from said sum 35 per cent. of the cost of repairing said roof. That in consideration of said Thompson's said promise of February 15th, above mentioned, and induced thereby, said trust company did accept, as such trustee, in release and in satisfaction of the liability of said insurance companies, under said policies so held by said trust company, said sum of $12,576.59, and thereupon and thereby said Thompson, as such trustee, was enabled to collect, and did collect and receive, on said policies held by him, as aforesaid, said sum of $6,877.86.

"Plaintiffs further state that upon the making of the promise and agreement of said Thompson, last above set forth, they accepted the same, and in reliance thereupon, and in consideration thereof, between the 1st day of May, 1900, and the 15th day of August, 1900, they directed and caused to be made, with the knowledge and approval of said defendant, certain repairs upon the roof of said building at a cost of $1,429.33, and on the 15th day of August, 1900, these plaintiffs paid out of said sum of $12,576.59, paid to them by said insurance companies as aforesaid, the sum of $929.07, or GE per cent. of the cost of repairing said roof, and thereupon said Thompson, on or about the 15th day of August, 1900, in pursuance of said agreement and undertaking on his part, out of the sum received by him, as aforesaid, as trustee, paid, on account of Ale cost of said repairs to said roof, the sum of $500.26, or 35 per cent. of said cost, leaving in the hands of said Thompson, of the said sum of $6,877.86 received by him as trustee, as aforesaid, a balance of $6,377.60.

"Plaintiffs further state that thereafter these plaintiffs, in further reliance of said Thompson's aforesaid promise and agreeme at of date on or about February 15, 1900, as modified by the promise and agreement of said Thompson, above stated, as made on or about the 12th day of April, 1900, and in further consideration thereof, expended from time to time between December...