Gates Hotel Co. v. Federal Inv. Co.

• Decision Date: 03 September 1932
• Citation: 52 S.W.2d 1016,331 Mo. 107
• Parties: Gates Hotel Company, a Corporation, Appellant, v. Federal Investment Company, a Corporation. Gates Hotel Company, a Corporation, v. Federal Investment Company, a Corporation, Appellant
• Court: Missouri Supreme Court

52 S.W.2d 1016

331 Mo. 107

Gates Hotel Company, a Corporation, Appellant, v. Federal Investment Company, a Corporation. Gates Hotel Company, a Corporation, v. Federal Investment Company, a Corporation, Appellant

Supreme Court of Missouri

September 3, 1932

Appeal from Circuit Court of City of St. Louis; Hon. Victor H Falkenhainer, Judge.

Reversed.

Salkey & Jones for Gates Hotel Company; Benjamin C Klene of counsel.

(1) Defendant and the Royal Company converted the furniture and furnishings to their use, at the market value of same at the time of said alleged foreclosure and became liable therefor in the sum of $ 8,000 and interest damages thereon at the rate of six per cent per annum as authorized by Section 4222 R. S. 1919. Lack v. Brecht, 166 Mo. 242; Darling v. Potts, 118 Mo. 506; 39 Cyc. 478; Harbough v. Roofing Co., 281 S.W. 686; Asadorian v. Sayman, 233 S.W. 475; Elliott v. Machine Co., 236 Mo. 546; Reilly v. Cullen, 101 Mo.App. 32; Turner v. Johnson, 95 Mo. 431; Witte v. Storm, 236 Mo. 470. (2) The invalidity of the sale by Ailworth, Trustee, to the Royal Company appears in the value of the property at the date of sale, as shown by undisputed evidence, as $ 8,000 mortgaged for $ 4,240.45, and sold, for the unconscionable price of $ 200. The sale was void and was a conversion of the property by defendant and Royal, and the court erred in not so finding. Meek v. Hurst, 223 Mo. 698; McNew v. Booth, 42 Mo. 192. (3) The chattel deed of trust given as security for the note for $ 4,240.45 is and was void because it provided therein for the sale of the property described therein upon default by printing a five day notice, whereas the statutes applicable to personal property foreclosures provide for publication in certain instances as well as by foreclosure under order of court. R. S. 1919, secs. 2219, 2233, 2234; Nichols & Shepard Co. v. Stokes, 196 S.W. 1075. (4) Plaintiff should be credited with $ 913.17 in cash overpaid in excessive interest on the second deed of trust. Vandergrift v. Swinner, 158 Mo. 531. (5) Plaintiff is not chargeable with fees and charges of defendant's real estate agents and attorneys, absent notice thereof or any demand of payment therefor. R. S. 1919, sec. 6491. (6) The court did not err in admitting the testimony of Lee F. Gates and Taylor R. Young as to conversations with W. H. Carroll. (a) Where one party to a contract was represented at the making thereof by two persons, the other contracting party is not disqualified because one of such representatives is dead at the time of the trial. Birdsall v. Coon, 157 Mo.App. 448; Short v. Thomas, 178 Mo.App. 413; Vandergrif v. Swinney, 158 Mo. 533; Hill-Dodge Banking Co. v. Loomis, 140 Mo.App. 74; Williams v. Perkins, 83 Mo. 385; Wahl v. Cunningham, 6 S.W.2d 586; McConnon v. Kuhlmann, 220 Mo.App. 824. (b) The statute is a qualifying, and not a disqualifying statute. Rauch v. Metz, 212 S.W. 360. (c) An agent may testify for his principal as to a transaction had by him as such agent with one who is dead at the time he offers to testify. Clark v. Thias, 173 Mo. 628; Wagner v. Binder, 187 S.W. 1151; Bates v. Forcht, 89 Mo. 127; Orthwein v. Nolker, 234 S.W. 789, 290 Mo. 284; Spithover v. Bldg. & Loan Assn., 225 Mo. 660; Dawson v. Wombles, 104 Mo.App. 272; Darby v. Northwestern Mut. Life Ins. Co., 239 S.W. 68. (d) Incompetency of a witness is waived by extensive cross-examination. Tierney v. Hannon's Exr., 81 Mo.App. 488; Edwards v. Latimer, 183 Mo. 610, 82 S.W. 109; Pierce Loan Co. v. Killian, 153 Mo.App. 106, 132 S.W. 280; Ables v. Ackley, 126 Mo.App. 84, 103 S.W. 974; Stuyvaert v. Arnold, 122 Mo.App. 421, 99 S.W. 529.

Claud D. Hall and C. P. Berry for Federal Investment Company.

(1) The court erred in admitting the testimony of the plaintiff's president, Lee F. Gates, and of plaintiff's attorney, Taylor R. Young, as to their conversations and transactions with W. H. Carroll, vice-president of defendant, and with whom plaintiff claims to have entered into the alleged agreement to the effect that after the foreclosure the property would be held in trust by the defendant and when the indebtedness represented by the second deed of trust as paid out of rents and income from the property, defendant would reconvey the property to the plaintiff. Charles Green Real Estate Co. v. Building Co., 196 Mo. 358; Sanford v. Van Pelt, 282 S.W. 1022, 314 Mo. 175; Edmonds v. Scharff, 279 Mo. 78; Curd v. Brown, 148 Mo. 82; Taylor v. George, 176 Mo.App. 223. (a) The rule excluding such testimony is applicable where the agent who carried on the negotiation for the corporation is dead. Carroll v. United Rys. Co., 157 Mo.App. 288; Banking House v. Rood, 132 Mo. 264; Charles Green Real Estate Co. v. Building Co., 196 Mo. 358. (b) The object and purpose of the statute, Sec. 5410, R. S. 1919, is to insure the equality of the parties to the action. Lieber v. Lieber, 239 Mo. 14; Waltemar v. Schnick's Estate, 102 Mo.App. 133; Elsea v. Smith, 273 Mo. 396; Rector v. Goodloe, 298 Mo. 261; Davis v. Robb, 10 S.W.2d 680. (c) The rule applies even though the conversations of the deceased party were overheard by a third person. Jones on Evidence (2 Ed.) sec. 790, p. 993; Brunk v. Ry. Co., 198 Mo.App. 243. (d) The rule is that whenever an objection is once made and overruled, further objection to each question is unnecessary. Shoemaker v. Adair Coal Co., 255 S.W. 352; State v. Hicks, 3 S.W.2d 230. (2) Since the plaintiff's petition was based upon an express contract, it was necessary to prove the alleged contract to have been in writing, as required by the Statute of Frauds, Sections 2169 and 2263 of the Revised Statutes of Missouri, 1919. Curd v. Brown, 148 Mo. 92; Ferguson v. Robinson, 258 Mo. 132; Rogers v. Ramey, 137 Mo. 598; Miltenberger v. Morrison, 39 Mo. 71; Shelton v. Cooksey, 138 Mo.App. 389; Allen v. Richard, 83 Mo. 55; Mansur v. Willard, 57 Mo. 347; Taylor v. Von Schraeder, 107 Mo. 206; Ebert v. Myers, 9 S.W.2d 1066; Bender v. Bender, 281 Mo. 478. (3) There was no evidence upon which the court could find a resulting trust as to said real property, against the defendant and in favor of the plaintiff. Davis v. Holloway, 295 S.W. 105, 317 Mo. 246; Jacks v. Link, 291 Mo. 282; 22 C. J. 1074; Tracy v. Union Iron Works, 104 Mo. 193; Bender v. Bender, 281 Mo. 478; Heil v. Heil, 184 Mo. 676; Gammage v. Latham, 222 S.W. 469. (a) There was no evidence of a consideration paid by plaintiff. Martin v. Martin, 250 Mo. 546. (b) There was no confidential relationship between plaintiff and defendant. Chapin v. Cherry, 243 Mo. 401. (4) There was no evidence that the minds of the parties ever met, or that plaintiff's propositions were accepted by the defendant. Stone v. Union Trust Co., 150 Mo.App. 345; Strange v. Crowley, 91 Mo. 295; County of Cole v. Trust Co., 302 Mo. 235; State ex rel. Equitable Life v. Robertson (Mo.), 191 S.W. 989; Chapin v. Cherry, 243 Mo. 401; Davis v. Holloway, 317 Mo. 246; Kansas City Stock Yards v. Fed. Grain, 279 S.W. 771. (5) The rule in its shortest form is that parol testimony cannot be received to contradict, vary, add to or subtract from the terms of a valid written instrument. 3 Jones on Evidence, p. 145; 22 C. J. 1070; E. R. Darlington Lumber Co. v. Railway Co., 243 Mo. 224; McPherson v. Kissee, 239 Mo. 664, 144 S.W. 410; Miller v. Municipal Elec., 133 Mo. 205, 34 S.W. 585; Boyd v. Paul, 125 Mo. 9, 28 S.W. 171.

OPINION

Frank, J.

This is an action in equity by plaintiff, Gates Hotel Company, to enforce an alleged trust in certain real and personal property located in the city of St. Louis. The decree below was in favor of plaintiff and both parties appealed.

It appears from plaintiff's petition that plaintiff was the owner of a certain hotel building known as the D'Arle Hotel, together with the furniture and fixtures therein; that said building was encumbered by a first deed of trust in the sum of $ 30,000, and by a second deed of trust securing fifty-five notes of $ 500 each; that the furniture and fixtures in said hotel was encumbered by a chattel mortgage given to secure the payment of a note for the principal sum of $ 4,240.45; that said chattel mortgage was foreclosed and the Royal Investment Company purchased said furniture and fixtures at such foreclosure sale and sold and delivered same to defendant, Federal Investment Company; that on March 8, 1913, the second deed of trust on the hotel building was foreclosed and defendant Federal Investment Company bought the property at such foreclosure sale for $ 9,500.

The petition further alleges that defendant agreed to purchase said hotel at the foreclosure sale as trustee for plaintiff. The specific allegations respecting this alleged agreement read as follows:

"Plaintiff says that said sale was made as a part of a plan of the defendant to defraud plaintiff of its hotel property.

"That at the time of and prior to said sale under said deed of trust, it was expressly understood and agreed between plaintiff and the defendant in consideration of the mutual promises herein set forth between plaintiff and defendant as well as in further consideration of a chattel mortgage then executed and delivered by plaintiff for the use and benefit of a corporation known as the Royal Investment Company, then owned, operated and officered by the persons hereinbefore named, in which chattel mortgage was described and pledged as security for a loan of $ 4,240.45, all of plaintiff's furniture, effects and personal property and hotel furnishings, then owned by it and by it used in operating the said D'Arle Hotel; that although a sale of said property was to be made, that the same was only to be colorable, and that the relation of mortgagor and mortgagee, as between plaintiff and defendant, should continue unaffected by said sale, and...