Gallop v. Murphy

• Decision Date: 04 December 1911
• Parties: J. H. GALLOP, Appellant, v. JAMES MURPHY et al., Respondents
• Court: Missouri Court of Appeals

141 S.W. 438

160 Mo.App. 1

J. H. GALLOP, Appellant, v. JAMES MURPHY et al., Respondents

Court of Appeals of Missouri, Springfield

December 4, 1911

Appeal from Jasper Circuit Court.--Hon. D. E. Blair, Judge.

AFFIRMED.

Judgment affirmed.

C. V Buckley for appellant.

(1) In general a release must either be under the seal of the relator or be supported by a sufficient consideration otherwise in nudum pactum and void. 34 Cyc. 1048. (2) In this State it can be shown that a written instrument was not supported by a valuable consideration. Winter v Railroad, 160 Mo. 181, R. S. 1899, sec. 645. (3) Whenever a specialty or other written contract for the payment of money or the delivery of property or for the performance of a duty, shall be the foundation of an action or defense in whole or in part, or shall be given in evidence in any court without being pleaded, the proper party may prove the want or failure of the consideration, in whole or in part, of such specialty or other written contract. R. S. 1899, sec. 2090; R. S. 1899, sec. 645; McCormack v. St. Louis, 166 Mo. 315; Harrison v. Iron Works Co., 96 Mo.App. 348. (4) In order to an estoppel, defendant must have been induced to act by the release, must have been ignorant of the facts. Bales v. Perry, 51 Mo. 452. (5) In estoppel these elements must co-exist, to-wit: first, ignorance of the facts by the party invoking the estoppel; second, knowledge of the material facts by the party sought to be estopped; third, the facts constituting an estoppel must be the procuring cause of the other party's action, and fourth, it must injure him if estoppel is not enforced. Spurlock v. Sproule, 72 Mo. 509; Acton v. Dooley, 74 Mo. 67; Burke v. Adams, 80 Mo. 513; Rogers v. Barsh, 73 Mo. 70; Etilgorge v. Assn., 97 Mo. 272. (6) There is no estoppel by silence or inaction alone. The plaintiff must have done something that occasioned the defendant's action. Smith v. Roach, 59 Mo.App. 115; Spurlock v. Sproule, 72 Mo. 563; Olden v. Hendrick, 100 Mo. 533; Wumser v. Frederick, 62 Mo.App. 634. (7) One can acquire no right by fraud. When respondents got appellant to surrender by virture of the false representation that they had forfeited the lease, the release of his interest in the lease was void. Kehoe v. Taylor, 31 Mo.App. 588; Clarkson v. Creeley, 40 Mo. 114; Keiser v. Gammon, 95 Mo. 217. (8) The Statute of Limitations did not begin to run in this case until June 5, 1905. Beller v. Murphy, 139 Mo.App. 663.

Sapp & Wilson and Spencer, Grayston & Spencer for respondents.

(1) That the five-year Statute of Limitations applies to this case is conceded in the opinion of the court in the Steinbach case, 143 Mo.App. 537, and the Beller case, 139 Mo.App. 663, and is abundantly supported by the authorities. R. S. 1909, sec. 1889; Thomas v. Hurst, 73 F. 372; Bonney v. Stoughton, 122 Ill. 536, 13 N.E. 833. (2) This section is applicable to all civil actions, whether at law or in equity. Rogers v. Brown, 61 Mo. 187; Kelly v. Hurt, 74 Mo. 561; Bank v. Bank, 107 Mo. 133; Kline v. Vogel, 90 Mo. 239; Hoester v. Samelmann, 101 Mo. 619; Smith v. Settle, 128 Mo.App. 379 Hudson v. Cahoon, 193 Mo. 547 Loomis v. Railroad, 165 Mo. 469; Goodson v. Goodson, 140 Mo. 206, 25 Cyc. 1060, 30 Cyc. 718. (3) With all due respect for this court, we insist that in the Steinbach and Beller cases, when the Murphys ousted the plaintiffs, and openly and notoriously denied their rights and held the property adversely to them, the Statute of Limitations began to run, and if this situation continued for the statutory period, the rights of the plaintiffs ended. 2 Lindley on Partnership, 510; 2 Bates on Partnership, sec. 942; Jenny v. Perkins, 17 Mich. 28; Bonney v. Stoughton, 122 Ill. 536, 13 N.E. 833; Currier v. Studley, 159 Mass. 17, 33 N.E. 709; 30 Cyc. 720; Bluntzer v. Hirsch, 32 Tex.App. 585, 75 S.W. 326; Allen v. Woonsocket Co., 11 R. L. 288; Murray v. Penny, 108 N.C. 324, 12 S.E. 957; Coudrey v. Gilliam, 60 Mo. 86. (4) A partner who ousts his fellows and denies their rights is at most a constructive or implied trustee. With the ouster the right of action against him accrues and the statute commences to run. Smith v. Ricords, 52 Mo. 581; Ricords v. Watkins, 56 Mo. 553; Nougues v. Newlands, 118 Cal. 102, 50 P. 386; Pierson v. McCurdy, 100 N.Y. 608, 2 N.E. 615; Oaks v. West, 64 S.W. 1033; Merrill v. Monticello, 66 F. 165, 72 F. 462. (5) The statute runs in favor of the trustee from the time he disowns the obligation of the trust and sets up a claim in his own right to the trust property. Otto v. Schlapkahl, 57 Iowa 226, 10 N.W. 651; Murphy v. Murphy, 80 Iowa 740, 45 N.W. 914.

OPINION

GRAY, J.

An action for partnership accounting. The plaintiff's petition was dismissed and he appealed. While this controversy is a part of the partnership matters considered by this court in Beller v. Murphy, 139 Mo.App. 663, 123 S.W. 1029, and Steinbach v. Murphy, 143 Mo.App. 537, 128 S.W. 207, the issues in this case are entirely different.

June 5, 1895, Patrick Murphy delivered a mining lease on land in Kansas to several parties, including himself, for a term of ten years. Thereafter James Murphy, one of the lessees and a brother of Patrick, acquired a one-half interest in the fee. Immediately after the delivery of the lease the parties thereto entered upon and mined the land in accordance with its terms and provisions. They worked during the summer season, but by mutual consent, suspended during the winter. On the 12th day of September 1895, the plaintiff acquired a one-sixth interest in the lease from one of the original lessees, and from that time, he, with the others, carried on mining operations until 1899, at which time he ceased to have anything to do with the lease, and his first claim of any interest therein since that date was made when this suit was filed, March 1, 1910.

Patrick Murphy died on or about the 12th day of October, 1900, and this suit was commenced against his heirs and legatees and James Murphy. The answer of the defendants consisted of a general denial, special pleas of the five and ten years' Statutes of Limitations, and that plaintiff in 1899 executed to James and Patrick Murphy his written surrender of all his rights and interest in the lease and premises, and that the Murphys, relying and acting thereon, took possession of the premises and executed a new mining lease thereon to others, and thereafter carried on mining operations with and through such other persons; that the plaintiff never since said date claimed or asserted any right or interest in said leasehold, and afterwards permitted suits to be brought and prosecuted by other persons claiming an interest in said leasehold, and permitted in such suits an accounting to be had between these defendants and said other persons, and at all such times the plaintiff admitted that he had no interest in said premises, and asserted no right thereto.

The reply denied the new matter contained in the answer, and in regard to the defense of surrender, alleged the following: "Further replying plaintiff says that he did not execute any release in writing of his interest in the lease mentioned in his petition. And that said release was without consideration and therefore void, and plaintiff further says that the release pleaded by the defendants was obtained from him by false and fraudulent representations of the defendants that they had forfeited said lease on all the parties interested therein; that they were all out; that said parties had nothing further to do with said lease or no further interest therein; that plaintiff executed said release relying on the truth of said statements of defendants; that said statements of defendants were false and untrue and known to be untrue and they were made for the purpose of cheating the plaintiff out of his valuable interest in said lease."

The evidence shows that in the original lease, the tenants were to pay a rent or royalty of ten per cent of the value of the ore mined on the lands; that after the execution of the surrender by plaintiff, the Murphys made a new lease to other persons, and by the terms of which a rent or royalty of twenty per cent was reserved.

The plaintiff's theory is that the surrender was obtained without consideration, and by fraud, and on account thereof, was void, and as an owner of an undivided one-sixth interest in the original lease and as a partner with the others named in that lease, he is entitled to recover one-sixth of the extra ten per cent royalty which accrued to the co-partnership by means of the new lease.

In the cases of Beller and Steinbach against these defendants, the plaintiffs were permitted...