Evans v. Evans

• Decision Date: 30 March 1906
• Citation: 196 Mo. 1,93 S.W. 969
• Parties: EVANS v. EVANS et al.
• Court: Missouri Supreme Court

93 S.W. 969

196 Mo. 1

EVANS v. EVANS et al.

Supreme Court of Missouri, Division No. 1.

March 30, 1906.

1. PRINCIPAL AND AGENT—CONTRACTS INTER SE—REASONABLENESS—BURDEN OF PROOF.

In a suit by an agent to enforce a contract made with his principal, the relationship having been established, the burden is on the agent to show that the contract was reasonable and just.

2. SAME—TERMINATION OF RELATION.

Where, in a suit by an agent to enforce a contract with his principal, the agent claimed that the relation of principal and agent had ceased to exist prior to the execution of the contract, the burden was on the agent to establish such fact.

3. SAME.

Plaintiff, an alien, who, with defendants and certain others were heirs of E., came to Missouri and after procuring powers of attorney from the other heirs succeeded in effecting a settlement by which he recovered property of their ancestor including that in controversy. Friction, having developed, defendants, who were of age, retained counsel of their own selection to whom a full account of plaintiff's acts was rendered. Plaintiff having brought suit to partition the property so obtained, defendant's counsel filed an answer and, during the pendency thereof, defendants, under the advice of their counsel, declined plaintiff's offer to purchase their interest in the property, but later accepted plaintiff's offer of a larger sum, and executed a written contract to assign and convey the same to plaintiff. Held, that such facts established the termination of any relation of trust or confidence previously existing between plaintiff and defendants prior to the execution of such contract.

4. SPECIFIC PERFORMANCE—INEQUITABLE CONTRACT —EVIDENCE.

Defendants, with full opportunity for knowing the exact value of their interest in certain property, during a partition suit in which plaintiff was claiming a large sum for fees and expense in caring for the property contracted to convey all their interest therein to plaintiff for $2,600. Defendants were represented by active attorneys who were advised of the entire situation, and on the advice of such attorneys had previously declined to assign their interest to plaintiff for $2,000. Some of the property was speculative in character, and there was expert evidence that the same was worth from $2,700 to nearly $5,000. Held, that the contract was not so unjust and inequitable as to preclude specific performance in equity.

5. CONTRACTS—RESCISSION—ESTOPPEL.

During the pendency of a partition suit in which plaintiff who was entitled to one-third of the common property claimed a large sum for expenditures in caring for the property and services, defendants executed a contract agreeing to assign their interest to plaintiff for a net sum. Immediately thereafter, however, defendants secretly conceived the idea of repudiating the contract, and reported such determination to their attorneys, who, notwithstanding such knowledge, obtained a settlement of the partition suit, by which plaintiff agreed personally to pay money borrowed on the credit of the joint estate and to waive a large portion of his claim for services and other advances. Plaintiff was not advised of such rescission until after the report of the commissioners in partition. Held, that defendants were estopped to insist on a rescission of such contract.

6. SAME—CONSTRUCTION.

Where, pending partition, defendants agreed to convey their interest in the common property to plaintiff for a net sum, but the agreement contemplated the prosecution of the partition suit to completion, defendants were not liable for costs of the partition nor for taxes nor trustees fees accruing up to the date of the partition, but they were liable for trustee's fees and fees for the services of attorneys to the trustees accruing after defendants repudiated the contract.

7. SAME.

Where, pending suit for partition, defendants contracted to convey their share of the common property to plaintiff for a net sum and the contract as construed by defendants themselves, obligated them to pay their own attorneys' fees, while the partition decree charged such fees against the interests of all the defendants in the partition suit, the amount so charged was properly deducted from the consideration for the contract in a suit to compel specific performance thereof.

Appeal from Circuit Court, Cass County; Wm. L. Jarrott, Judge.

Suit by Daniel J. Evans against Daniel Evans and others, for specific performance of a contract of the interest of certain heirs in property acquired as their interest in their ancestor's estate. From a judgment for defendants, plaintiff appeals. Reversed.

Given & Glenn and Warner, Dean, McLeod, Holden & Timmonds, for appellant. Perry S. Rader and Ed E. Yates, for respondents.

LAMM, J.

On the 23d of October, 1899, Thomas D. Evans, then childless, died a resident of Cass county, Mo., full of years and infirmities of mind and body, having shortly theretofore conveyed a considerable estate to his wife. By inference, he was a Welshman. At any rate, he left surviving him a brother, D. J. Evans (appellant here), and a sister, Mary Thomas, residents of Wales, and two nephews, Daniel and Charles William Evans (respondents here), sons of a deceased brother, residents of the city of New York. Daniel Evans was 31 years of age and married, Charles William was 29 years of age and single, and they are spoken of both as chefs and as waiters; but the substantial evidence points to their business occupation as that of café waiters. In November, 1899, D. J. Evans left Wales and came to Cass county to investigate his deceased brother's affairs. Up to that time he never had seen his nephews, Charles William and Daniel, except once in Paris, and had held no communication with them whatever, and while an extensive correspondence occurred subsequently, yet he never met them but once during its existence. We infer his American trip was the result of consultation with his sister, Mary Thomas. On his coming upon the ground, such a situation presented itself as led him to solicit and procure a power of attorney from his said nephews and sister to represent them as heirs at law of Thomas D. Evans in and about obtaining their rights as such. The terms of this power of attorney are not shown, but the matter is dealt with throughout as though it was a full power of attorney and vested him with large discretion. In pursuance of such power, and acting for himself and his principals therein, he utilized the information already gathered by him tending to show undue influence and mental incapacity, and other knowledge afterwards obtained, in challenging the validity of the conveyance made by his brother to his wife and thereby, with the assistance of attorneys in Kansas City and Harrisonville, he obtained a settlement with the widow out of court, whereby a tract of land in Texas, several farms in Cass county, and 85 shares of the capital stock of the Harrisonville Hotel Company of Harrisonville, Mo., were transferred to him, together with $1,000 in cash, about the middle of January, 1900, in full acquittance of the claims presented and represented by him. The hotel corporation aforesaid was capitalized at $38,500, divided into shares of stock of the par value of $100 each, but of an inconsiderable and uncertain actual value.

Being an alien, it seems a question was sprung about his right to take and hold title to real estate, and thereupon the title was put in one Davis, and by Davis it was transferred to the Fidelity Trust Company, a Missouri corporation (also a respondent here), in trust. Mary Thomas had a son, William, residing in Cass county or in Kansas City, and it shortly befell that friction arose between William Thomas and his uncle about the management of the estate, and they began to eye each other with distrust, but the merits of this particular family controversy do not appear material to the present litigation, further than to say that while full details are not in the record, yet it is apparent that William Thomas put himself in communication, directly and indirectly, through his attorneys in Kansas City, with Daniel and Charles William Evans and with his mother in Wales, and that it presently resulted that Mary Thomas placed the management of her interests in her son William's hands or in the hands of attorneys in Kansas City, and D. J. Evans ceased to represent his sister as attorney in fact. The exact date D. J. Evans ceased to act as agent for Mary Thomas does not appear but it was some time during the year 1900, and possibly during the summer or autumn. During the time he was clothed with full power as agent he made disbursements in repairs, taxes, attorney's fees, for abstracts and personal expenses in a large aggregate sum and incurred other outlays in advertising and in attempting to sell the property recovered by him from the widow of Thomas D. Evans, the policy of all parties getting this windfall being to close their shares out for cash as speedily as might be. The market value for real estate was dull during 1900, and it seems that he was able to dispose of only the Texas tract, of small extent and value, and another small tract for a small sum. When things were in this fix and after his right to manage the estate on the part of his sister Mary had been taken from him, he found that, through the instigation and at the initiative of William Thomas, a partition suit was about to be instituted to partition the estate held by the Fidelity Trust Company in trust for himself, Mary Thomas, and his two nephews. Thereupon he, se defendendo, employed a firm of attorneys in Kansas City to institute a partition suit in the circuit court of Cass county on his own behalf, which was done to the January term, 1901, making Mary Thomas and his two nephews and the Fidelity Trust Company defendants.

Pending this partition suit, and evidently against his wish, his nephews, acting through their attorneys in New...