Haeussler v. Duross

• Decision Date: 12 June 1883
• Citation: 14 Mo.App. 103
• Parties: H. A. HAEUSSLER, Plaintiff in Error, v. JAMES DUROSS, Defendant in Error.
• Court: Missouri Court of Appeals

14 Mo.App. 103

H. A. HAEUSSLER, Plaintiff in Error,

v.JAMES DUROSS, Defendant in Error.

St. Louis Court of Appeals, Missouri.

Jun. 12, 1883.

ERROR to the St. Louis Circuit Court, THAYER, J.

Affirmed.

E. J. O'BRIEN, for the plaintiff in error.

HENRY HITCHCOCK, for the defendant in error.

BAKEWELL, J., delivered the opinion of the court.

The petition in this case is substantially as follows: Plaintiff, for himself and all others in interest who may be joined herein, states that on March 15, 1876, Geo. W. Lubke conveyed to defendant a lot in the Grand Prairie common fields, particularly described, on which was erected “Elleardsville Hall.” This lot was conveyed to Lubke in trust. Amongst the persons beneficially interested in the trust were Hymers, Massey, Sellers, and McGlenn. Defendant executed a declaration of trust, whereby he agreed to receive the rents and profits of the premises, pay all expenses of ownership, and distribute any surplus among the parties named in the declaration of trust, including those named above. The aggregate interest of the beneficiaries was $8,049.85; of which Hymers owned $1,447; Sellers, $95.45; Massey, $254, and McGlenn, $143. These four assigned to plaintiff all their interest in the trust, and he holds the same, of which defendant had notice. The trust property has been disposed of by defendant, and the trust closed, and defendant has received, net, from the trust property $2,414.70, but has failed to pay over to plaintiff his proportionate share, which is $482, for which and interest he asks judgment.

The second count states that one of the terms and conditions of the trust was, that defendant should hold the premises during the pleasure of the creditors named in the declaration of trust, and pay over the proceeds to them in exact proportion to their respective claims; that the interests of the beneficiaries were as set out above; that defendant sold the property on October 11, 1881, for $4,000, and received the proceeds; that plaintiff is assignee of the four persons named above, and has demanded his proportionate share of the proceeds of the sale, which defendant refuses to pay. Plaintiff asks judgment for $1,000 and interest.

The third count, after setting up the matters of inducement in the other counts, alleges that defendant, by said declaration of trust, agreed that all questions as to the management of the trust property should be decided by a majority vote of the beneficiaries; that defendant, in March, 1878, and repeatedly since, was offered $5,000 for the property, and refused to sell; that, on January 25, 1881, a majority of the beneficiaries, by vote, directed defendant to sell, at private sale, before April 15, 1881, at a fixed price, and, as an alternative, to sell on June 15, 1881, at public auction. That, in violation of his agreement, defendant refused and neglected to obey these instructions, and did not sell until, on October 11, 1881, defendant sold the trust property to his partner in business, and another, for $4,000, which was an inadequate price. For this plaintiff asks damages in the sum of $2,000.

The answer of defendant denies these charges, and sets up an agreement between himself and the beneficiaries under which the property was bought by him as trustee, and by which the trustee was to assess all the beneficiaries pro rata, if the rents and profits should not meet the necessary expenses of the trust. He avers that one Gordon obtained judgment against the property on a mechanic's lien; that defendant by legal advice resisted this claim, but the lien was sustained in the court of appeals; and, the Elleardsville Hall Association being insolvent, defendant was obliged to pay this judgment to save the property; and, in order to meet the expenses incurred, he made a pro rata assessment, as provided by the agreement, which was paid by all the beneficiaries except plaintiff, who refused to contribute. That the property was sold on October 11, 1881, for $4,000, at the special direction of plaintiff and other creditors; and, after deducting a reasonable compensation for himself as trustee, defendant divided all the proceeds of the trust fund amongst the beneficiaries pro rata, who, except plaintiff, all received this pro rata, and discharged defendant from further liability about the trust. The answer further says that the pro rata of plaintiff for the four claims represented by him, is $704.65, which defendant tendered to plaintiff before the action, and now deposits in court, that plaintiff may receive the same pursuant to the tender.

The answer is accompanied with exhibits; amongst others, one which purports to be a statement of all items received and expended by the trustee from the inception of the trust, showing a balance in his hands of $704.65, being a dividend of 36 1/3 per centum due to Hymers, Sellers, Corby, and McGlenn, who have not made settlement.

The reply of plaintiff sets up that the agreement to change date of sale was not made until after defendant had failed to comply with the order of sale at the first date, nor until after defendant was sued by plaintiff; and denies that $653.95 is a reasonable charge for defendant's services; says that defendant had no right to pay the Gordon claim, or to borrow money for that purpose; and denies that defendant, before the suit, offered to pay plaintiff anything, except on condition that plaintiff would sign a release.

The transcript further shows that on the 10th of March, 1882, the clerk of the court was ordered to pay to plaintiff $704.65, theretofore deposited as a tender to plaintiff; and that, on the 3rd of May, 1882, it appearing to the court that plaintiff has accepted the tender of $704.65, made by defendant with his answer, and...