Gloeckner v. Kittlaus
| Decision Date | 21 December 1905 |
| Citation | 91 S.W. 126,191 Mo. 477 |
| Parties | GLOECKNER, Appellant, v. KITTLAUS et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis County Circuit Court. -- Hon. John W McElhinney, Judge.
Affirmed.
Warren D. Isenberg, E. J. O'Brien and August Rebenack for appellant.
(1) The answer admitted every material fact necessary to establish a constructive trust, but set up certain facts by way of avoidance that if true would not change the relationship or status of the parties, nor excuse in law or equity the acts of defendant Kittlaus in violating his duty to his friend. If his conduct is conscionable in equity, we fail to see it. The court should have given judgment on the pleadings. Dezell v. Fidelity Co., 176 Mo. 253; Lang v. Lang, 79 Mo. 644. (2) Any agreement or contract in writing whereby a person agrees that a particular parcel of land shall be dealt with in a particular manner for the benefit of others raises a trust in favor of such other person, and this trust may be manifested or proven by any writing in which the fiduciary relation between the parties and its terms can be clearly read. McArthur v. Gordin, 12 L. R. A. 667; Bragg v. Paulk, 42 Me. 502; Bair v. Berberich, 77 Mo 414, 6 Mo.App. 537; Rose v. Bates, 12 Mo. 30; Rutherford v. Williams, 42 Mo. 18; McNew v Booth, 42 Mo. 189. Where, as in this case, the agreements were made by Kittlaus with the advice of his attorney and Gloeckner was prevailed upon to be without counsel -- to conceal from his counsel -- especially where the relationship of the parties is one of explicit confidence in the honor and integrity of his friend, the imposition practiced later amounts almost to a conspiracy. Berlien v. Bieler, 96 Mo. 491; Mesker's Appeal, 107 Pa. 612. The rule is that he who bargains in matters of advantage with a person placing confidence in him, is bound to show that a reasonable use has been made of that confidence. This applies to every person. Northcraft v. Martin, 28 Mo. 649; Bedford v. Moore, 54 Mo. 448; Clark v. Bank, 57 Mo.App. 277; Petit v. Carpenter, 86 Mo.App. 452; McClure v. Lewis, 72 Mo. 320; Euneau v. Rieger, 105 Mo. 659; Joplin v. Case, 104 Mo. 573; Martin v. Baker, 135 Mo. 495. In a partition sale the parties agreeing that one of their number shall bid off the property for the benefit of all parties, he is trustee for all the parties. Northcraft v. Martin, 28 Mo. 469. So a petition is not demurrable because a judgment is asked not warranted by the averments. The court will grant any relief consistent with the case made and the allegations of the petition. Northcraft v. Martin, 28 Mo. 469; Hamonds v. Cadwalader, 29 Mo. 169. Equity will relieve from fraudulent acts or omissions. Fraud arising from circumstances of imposition presents the plainest case for relief. Fraud properly includes all acts, omissions and concealments which involve legal or equitable duty, trust or confidence justly reposed and are injurious to another, or by which an undue and unconscionable advantage is taken of another. Merriman v. Newman, 9 Heisk. (Tenn.) 269; Davis v. Scovern, 130 Mo. 315; Henderson v. Dickey, 50 Mo. 165. (3) The two writings pleaded by the plaintiff in the petition are but parts of one agreement as a whole and were both executed before the sale took place which was the occasion for entering into the same; and therefore the defendant's objection that the second paper was without consideration cannot be seriously considered because of the admitted consideration of the first paid and because no money consideration was necessary for either. The consideration was united benefits and confidence. The loss of plaintiff's claim on the land was sufficient, which passed by the sale. Leeper v. Taylor, 111 Mo. 324; Lami v. Ewing, 31 Mo. 75; Bispham's Equity (2 Ed), sec. 67. The rule excluding oral testimony has no application to a distinct collateral contemporaneous agreement, independent of and not varying the written agreement. Liebke v. Methudy, 14 Mo.App. 65; Brown v. Bowen, 90 Mo. 184.
G. Wm. Senn, W. R. Schery and Rassieur, Schnurmacher & Rassieur for respondents.
(1) (a) Where a contract or writing is not ambiguous and the language thereof is used in the usual, general, and not technical, sense, the court will not resort to parol evidence, but the construction of the contract or writing is a matter of law for the court. McClung v. Whitney, 82 Mo.App. 631; Blake v. Jaeger, 81 Mo.App. 242; Koehring v. Muemminghoff, 61 Mo. 403; Tracy v. Iron Works, 104 Mo. 193; Walker v. Engler, 30 Mo. 130; Chrisman v. Hodges, 75 Mo. 415; Halliday v. Lesh, 85 Mo.App. 285, 288. (b) And the acts of the parties to a contract or writing, in performance of the same, will have great, if not controlling, influence in the interpretation of the same. Henning v. Ins. Co., 47 Mo. 431; Depot Co. v. Railroad, 131 Mo. 305. (c) A contract or writing, null or void for uncertainty, creates no cause of action, nor will the court, for the failure of the parties to fully provide as to the subject-matter in all respects, undertake to make any contract between them. Burks v. Stam, 65 Mo.App. 460; Huse v. Heinze, 102 Mo. 249; Mallinckrodt v. Nemnich, 83 Mo.App. 16; Staluth v. Guaranty Co., 81 Mo.App. 632; Keaton v. Boughton, 83 Mo.App. 165; 7 Am. and Eng. Ency. Law (2 Ed.), 116; Bishop on Contracts ('87), secs. 117, 316, 390. (2) Any modification of an existing contract must be supported by a new and independent consideration. Henning v. Ins. Co., 47 Mo. 431; Wilson v. Russler, 91 Mo.App. 281. (3) In order to bring plaintiff, as against defendant Kittlaus, within the principle of constructive trusts or trusts arising out of fraud, it must appear that plaintiff, relying upon defendant, had been by the latter induced not to bid or otherwise to protect his interest; or that in some other respect a consideration had passed from him, or a detriment been suffered by him, in reliance upon the undertaking of defendant to act in his stead and for him; or that defendant Kittlaus had by his acts or declarations deterred plaintiff or others from bidding at the sale. The authorities contained in appellant's brief so decide.
OPINION
This is a proceeding in equity to set aside a conveyance of fourteen and fifteen one-hundredths acres of land in St. Louis county, from the defendant Kittlaus to the defendant Wittich; 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 one and fifteen one-hundredths 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 plaintiff 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 seventeen and three hundred and eighty-two one-thousandths 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:
That thereafter on the 18th of April, 1898, said Kittlaus and plaintiff entered into a further agreement as follows:
...
To continue reading
Request your trial