England v. Barnes

• Decision Date: 03 April 1934
• Docket Number: No. 23053.,23053.
• Citation: 70 S.W.2d 69
• Parties: ENGLAND et ux. v. BARNES et al.
• Court: Missouri Court of Appeals

70 S.W.2d 69

ENGLAND et ux. v. BARNES et al.

No. 23053.

St. Louis Court of Appeals. Missouri.

April 3, 1934.

Rehearing Denied April 17, 1934.

Appeal from Circuit Court, St. Louis County; Fred E. Mueller, Judge.

"Not to be published in State Reports."

Suit by Jesse L. England and wife against William H. Barnes and another. From a judgment and decree dismissing plaintiffs' petition, plaintiffs appeal.

Affirmed.

Orla M. Hill, of Clayton, for appellants.

S. C. Rogers, of St. Louis, for respondents.

BENNICK, Commissioner.

This is an appeal by plaintiffs from the judgment and decree of the circuit court of St. Louis county, dismissing their petition in a suit in equity involving the propriety of the steps taken by the defendants looking to the sale of plaintiffs' real estate under the terms of a deed of trust.

The appeal was originally allowed to the Supreme Court, but that court, finding that it was without jurisdiction to hear and determine the cause, ordered the same to be transferred here.

The case concededly comes to us for review upon nothing but the record proper.

In the petition it was alleged that plaintiffs are husband and wife, and are the owners as tenants by the entirety of certain real estate in the city of Kirkwood; that on October 1, 1928, they executed two promissory notes, one for $4,000 and the other for $1,500, due three years after date, and secured by first and second deeds of trust upon the property, with defendant William H. Barnes named as the trustee therein; and that defendant James D. Clarkson was the owner and holder of the notes and deeds of trust.

It was then alleged that plaintiff Jesse L. England is an attorney at law, and that during the term of the notes, at the special instance and request of defendant Clarkson, he had rendered to him legal services of the value of $1,400; and that, in addition to the rendition of such legal services, plaintiffs had paid to defendant Clarkson in cash on account of the notes the sum of $650.

The petition then set out that on or about January 1, 1929, it was agreed by and between defendant Clarkson and plaintiff Jesse L. England that the charges for said legal services should apply as against the notes, and that at the end of the term of the notes any balance found due one to the other should be adjusted; but that defendant Clarkson had failed and refused to adjust said account or to pay anything on account of the aforesaid legal services, and had wrongfully and in direct conflict with his agreement caused defendant Barnes, the trustee, to advertise the property for sale under the second deed of trust on November 23, 1931, for default in the payment of interest alleged to be due thereon.

It was further stated that on November 12, 1931, plaintiffs gave written notice to defendant Barnes of the controversy existing between them and defendant Clarkson, and requested defendant Barnes to postpone his proposed sale until a court of competent jurisdiction could inquire into and adjust the controversy; that plaintiffs offered to pay to defendant Barnes the sum found to be due upon the notes; but that defendant Barnes refused to accept the offer of payment so made by plaintiffs, and took the position that he would accept only such sum as was demanded by defendant Clarkson, and would accede to the wishes of the latter as to the holding of the proposed sale, thus refusing to exercise his proper discretion in the matter pending a determination of the issues by a court of competent jurisdiction. It was likewise stated that defendant Barnes was informed and advised of an agreement between defendant Clarkson and plaintiff Jesse L. England that the accounts between the two should be adjusted and determined, and that defendant Clarkson would not commit any act towards the foreclosure of the property to satisfy the deeds of trust until such accounts should be adjusted and determined.

The petition concluded as follows:

"Plaintiffs aver that although defendant James D. Clarkson entered into the aforesaid agreements, and agreed to take, determine, and state an account with respect to all the matters herein alleged, and to credit the plaintiffs with the value of the aforesaid legal services as against said deeds of trust notes, said defendant has nevertheless failed and refused to perform his said contract with respect thereto, and has failed and refused to undertake to adjust said accounts, and has failed and refused to credit the plaintiffs with any sum whatever on account of said legal services; and the plaintiffs aver that they cannot have adequate relief in the premises except in a court of equity to determine and state an account between the plaintiffs and defendant, and to require the defendant James D. Clarkson to perform the contracts and agreements aforesaid, and to set aside and hold for naught the published notices of trustee's sale prompted by defendant Clarkson as aforesaid; that unless the defendants may be required by appropriate order of this court to specifically perform their aforesaid contracts and agreements, the plaintiffs will be harassed in their possession of their said real estate and required to engage in a multiplicity of suits for the protection of their said property rights.

"Wherefore, plaintiffs pray that defendant James D. Clarkson be required by appropriate order, judgment, and decree of this court to specifically perform the contracts and agreements entered into by him with plaintiffs as aforesaid; and plaintiffs now again tender and offer to pay to the defendants the sum of forty-four hundred fifty and 99/100 dollars, due from plaintiffs, on said principal notes, as per the statement of account between plaintiffs and defendant Clarkson, as hereinabove set forth, and further offer and tender to pay to said defendants, in the event that upon a hearing of this cause the court should find plaintiffs in error as to their said account and the balance claimed due thereunder, such sum as the court, by stating an account between plaintiffs and said defendant Clarkson, may find to be due plaintiffs as a credit on said principal notes; that the court, having adjudged and decreed the equities as between the parties plaintiff and defendant, require...