Gloeckner v. Kittlaus

• Decision Date: 21 December 1905
• Citation: 192 Mo. 477,91 S.W. 126
• Parties: GLOECKNER v. KITTLAUS et al.
• Court: Missouri Supreme Court

91 S.W. 126

192 Mo. 477

GLOECKNER v. KITTLAUS et al.

Supreme Court of Missouri, Division No. 1.

December 21, 1905.

1. TRUSTS — AGREEMENTS FOR PURCHASE OF LAND—FAILURE TO PERFORM.

Where a contract for the purchase of land for plaintiff's benefit provided that defendant should advance $500 of the purchase price and plaintiff should furnish any excess over $500 which should be necessary to complete the purchase, and defendant bought the property, taking title in his own name and paying over $500 therefor, no part of which was advanced by plaintiff, the latter could not enforce any right to the land against defendant.

2. JOINT ADVENTURES — CONSTRUCTION AND OPERATION OF CONTRACT.

A contract between plaintiff and defendant for the purchase of land on execution sale provided that defendant should advance the sum of $500, and that plaintiff should advance any additional sum necessary to buy the land upon the joint bid, and further provided that, if the joint bid should be successful, the title to the property should be conveyed to plaintiff and defendant in specified proportions. A subsequent clause authorized defendant to bid at the sale "for his own and sole account" as long as any bidder other than plaintiff should make any bid. When the sale was held, third persons did bid on the property, while plaintiff failed to bid, and defendant bid in the property. The deed was made out to defendant alone without objection from plaintiff. There was litigation over the title, of which defendant bore the expense without aid from plaintiff, and for several years plaintiff, although he knew all the facts, asserted no claim to the property. Held, that defendant had a right under the contract to bid in the property for himself under the circumstances, and in view of the contemporaneous and subsequent occurrences would be deemed to have done so.

3. SAME.

A contract between plaintiff and defendant for the purchase of land on execution sale provided that defendant should advance the sum of $500, and that plaintiff should advance any additional sum necessary to buy the land upon a joint bid, and further provided that, if the joint bid should be successful, the title to the property should be transferred to plaintiff and defendant in specified proportions. The interest in the property which defendant was to receive for his services was worth much less than the $500 to be advanced by him. Held that, while the contract was not clear on the point, it would be construed as contemplating that defendant should be repaid the $500 advanced, and in addition thereto should receive a conveyance of the specified interest in the property.

4. CONTRACTS—CONSIDERATION.

A contract providing that, if defendant should buy certain land at sheriff's sale, he would share the land with plaintiff, who was the owner of the land subject to the lien, to satisfy which the same was to be sold, was without consideration, and not binding on defendant.

5. JOINT ADVENTURES — CONSTRUCTION AND OPERATION OF CONTRACT.

A contract between plaintiff and defendant for the purchase of land on execution sale provided that defendant should advance the sum of $500, and that plaintiff should advance any additional sum necessary to buy the land upon the joint bid, and further provided that, if the joint bid should be successful, the title to the property should be transferred to plaintiff and defendant in specified proportions. A subsequent clause authorized defendant to bid at the sale for his own and sole account as long as any bidder other than plaintiff should make any bid. A subsequent or modified agreement provided that, if defendant should buy the land for a sum exceeding $500, he would share it with plaintiff on a basis to be determined by the amount paid therefor. The sale was held. Defendant, in opposition to several bidders, bid in part of the property on his own account, paying therefor a sum which bore about the same proportion to the sum contemplated to be paid by the original agreement as the acreage purchased by him bore to the acreage of the whole tract covered by the agreement. Plaintiff asserted a claim to the share of the property which he would be entitled to under the original agreement, if he was entitled to anything. Held, that the subsequent or modified agreement had no application to the contingency which actually arose.

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

Suit by Louis Gloeckner against Louis Kittlaus and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Warren D. Isenberg, E. J. O'Brien, and August Rebenack, for appellant. G. Wm. Senn, W. R. Schery, and Rassieur, Schnurmacher & Rassieur, for respondents.

MARSHALL, J.

This is a proceeding in equity to set aside a conveyance of 14.15 acres of land in St. Louis county from the defendant Kittlaus to the defendant Whittich, and to declare the defendant Kittlaus a trustee for the plaintiff for an undivided five-sevenths interest in the land, and to charge the two-sevenths interest remaining in Kittlaus with a lien for five-sevenths of $165, received by Kittlaus for the condemnation of 1.15 acres for a railroad right of way, and for a partition and sale of the land, and a division of the proceeds among the parties in the proportions stated. The trial court rendered a judgment for the defendants, and the plaintiffs appealed.

The Issues.

The petition alleges: That in April, 1897, the plaintiff became the purchaser of the undivided interest of one Ponath, amounting to 17.382 acres in a larger tract of land in St. Louis county. That a partition suit was then pending against Ponath for the land, and that the plaintiff, on his own motion, was made a party to the suit. That by the decree in partition the plaintiff was awarded 17.382 acres, and the same was charged with the plaintiff's portion of the costs in partition, amounting to $329.50. That the plaintiff was unable to pay said costs, and that the land was about to be sold to satisfy said costs. That, desiring to save the land, the plaintiff induced the defendant Kittlaus to advance or loan him a sum of money sufficient to bid in the land, and in pursuance to that arrangement entered into a written contract with the defendant on the 15th of April, 1898, which provides as follows:

"First. That at a certain sheriff's sale, to take place on the 18th day of April, 1898, in the county of St. Louis, Missouri, of 17.382 acres, more or less, of land in said county under an execution against one Edward H. Ponath and others, the said Louis Kittlaus will put up and pay, if a joint bid hereinafter mentioned is successful, upon a joint bid by said Louis Gloeckner and said Kittlaus for such property so to be sold, the sum of $500.00 and no more; and that said Gloeckner will put up and pay the additional sum, if any, upon each joint bid.

"Second. That said Louis Gloeckner shall be the party to make such joint bid, and shall exercise his own discretion in making and continuing such bid, but said Gloeckner shall make no bid at said sale for or with any person other than the said Kittlaus, or enter into any agreement providing for or effecting the same.

"Third. If the joint bid of said Gloeckner and said Kittlaus at said sale is successful, then the title to said property is to be transferred to them in the following proportions, to wit, to Louis Gloeckner an undivided five-sevenths interest; to Louis Kittlaus an undivided two-sevenths interest.

"Fourth. Nothing herein contained shall be construed to prevent said Louis Kittlaus from bidding at said sale, on and for his own and sole account, so long as any bidder or bidders other than or besides said Louis Gloeckner shall continue to make or offer any bid or bids."

That thereafter, on the 18th of April, 1898, said Kittlaus and plaintiff entered into a further agreement as follows:

"It is hereby agreed that if Louis Kittlaus buys at sheriff's sale 17.382 acres on the 18th day of April, 1898, in the county of St. Louis, state of Missouri, for a sum of money exceeding five hundred ($500) dollars, he is to share with Louis Gloeckner as follows: If the land is bought by Louis Kittlaus for a sum between $501.00 to $700.00 he agrees to give Louis Gloeckner eight hundred ($800.00) dollars' worth of the same property. If land is bought for $701.00 to $1,000.00 he agrees to give Louis Gloeckner six hundred ($600.00) worth of property in land."

The petition then alleges that, under the agreement and modification of the agreement aforesaid, it was agreed and mutually understood that Kittlaus should do all the bidding at said sale on the joint account of Kittlaus and the plaintiff, and that an undivided two-sevenths should be conveyed to Kittlaus as compensation for his advancement of such money on any successful bid that he might make at said sale up to the sum of $500, and that the remaining five-sevenths should be conveyed to the plaintiff as representing his interest in the land, exclusive of the $500 to be advanced by Kittlaus, and that in the event competitive bids should run over $500 or a minor part or portion of such land should be sold to any other bidder, then in such event said agreements between plaintiff and defendant were understood to preserve plaintiff's title and interest in the land; that at said sale plaintiff and defendant were present; that plaintiff refrained from bidding on the land in pursuance to the said agreement with Kittlaus, and that Kittlaus bid in 15.30 acres of the land for the sum of $450, and was entitled to receive a deed for two-sevenths thereof, and the remaining five-sevenths were to be deeded to the plaintiff; that in violation of the agreements and understandings aforesaid, and with intent to cheat and defraud plaintiff, the defendant caused a deed to the whole of the 15.30 acres to be made to him, and has refused to convey any part thereof to the plaintiff; that on the 22d of January, 1900, Kittlaus received $165 from...