Halvorson v. Commerce Trust Co.

• Decision Date: 14 June 1920
• Docket Number: No. 13665.,13665.
• Citation: 222 S.W. 897
• Parties: HALVORSON et al. v. COMMERCE TRUST CO.
• Court: Missouri Court of Appeals

222 S.W. 897

HALVORSON et al. v. COMMERCE TRUST CO.

No. 13665.

Kansas City Court of Appeals. Missouri.

June 14, 1920.

Appeal from Circuit Court, Jackson County; Daniel E. Bird, Judge.

"Not to be officially published."

Action by Halvorson & Chappelle against the Commerce Trust Company, in which Fred B. Gillette was required to interplead. Judgment for interpleader, and plaintiffs appeal. Affirmed.

Guthrie, Conrad & Durham and Hale Houts, all of Kansas City, for appellants.

Harkless & Histed and Hogsett & Boyle, all of Kansas City, for respondent.

ELLISON, P. J.

The Publishers' Realty Company owned some real estate in Kansas City, which it sold to one Rahe for $150,000. Rabe was to pay $10,000 at once, to be deposited in the Commerce Trust Company until it was known that the sale would be consummated. Each of two real estate agents (Halvorson & Chappelle and one Gillette) claimed to have made the sale, and each presented a bill for $3,750 commission to the Publishers' Company. One of them, Halvorson & Chappelle, brought suit against the trust company for the amount of the commission. The latter company filed an answer, admitting it had the money, but setting up the rival claimants and asking that Gillette be made a party defendant, and that they be required to interplead. Appropriate orders were made, the trust company paid the money into court, and was discharged. A trial resulted in favor of respondent Gillette, and Halvorson & Chappelle appealed.

The foregoing is a mere synopsis, from which it is not possible to understand the merits of the controversy without these further statements: It is conceded by the parties that each of the claimants performed service for the publishing company in the sale of its property, and that that company is liable to both. The question between them is, Which is entitled to the money awaiting one of them in the hands of the court? The importance of this question will be appreciated when it is known that the publishing company is conceded to be insolvent.

The sale was made to Rahe on the 24th of March, 1917, and on the 27th of March the publishing company informed the trust company that $10,000 of the purchase price was to be deposited with it pending the close of the sale, and "If the sale is finally concluded you have our consent to pay over to F. B. Gillette three thousand seven hundred and fifty dollars out of said sum, as his commission." The conceded fact was that this letter, addressed to the trust company, was written when the sale was made at Gillette's request, as an assurance that he would get his commission. Then Gillette in company with the publishing company and Rahe took the contract of sale, together with this letter and Rahe's check for $10,000, and deposited them with the trust company, and it accepted them. Rahe then told Halvorson of the assignment, and the latter said, "You are safe enough; but the publishing company owes me a commission."

On the 14th of May the publishing company notified the trust company that the sale was closed, and directed it to pay $6,250 of the $10,000 to Mr. Beardsley, but that, since it gave its consent that $3,750 could be paid to Gillette as his commission, "it had developed that other parties (Halvorson & Chappelle) are contending that they have a right to this sum and have filed suit therefor; you are therefore directed not to pay the sum to any one until further orders from us."

More than a year afterwards (July 30, 1918) the publishing company and Halvorson & Chappelle, parties to the foregoing suit, entered into a written agreement, reciting; substantially, the foregoing facts concluding with the agreement that Halvorson & Chappelle would dismiss their suit against the publishing company, and in consideration therefor the "publishing company does hereby assign, transfer and set over to Halvorson & Chappelle the aforesaid sum of $3,750, and any and all causes of action therefor, or choses in action on account thereof, and any and all rights and causes of action whatsoever which it may at this time have growing out Of any of the transactions connected with the said sale and the moneys arising therefrom, against said Commerce Trust Company or said Fred B. Gillette."

On the same day of the last paper, and as part of the transaction, Halvorson & Chappelle executed a contract to the publishing company, whereby, for the latter's indemnity, they agreed that if they recovered anything from the trust company on the assignment to them it should be deposited in a certain other trust company, known as the Pioneer Trust Company, to be held for a time named as indemnity to the publishing company in the event it became liable to the Commerce Trust Company or to Rahe by reason of making the assignment to Halvorson & Chappelle.

The respondent, Gillette, claims the money ($3.750) owing to him by the publishing company as his commission, and deposited with the trust company, was assigned to him by the publishing company in the letter of March 27th referred to above; and that the attempted revocation of that assignment May 14th and the assignment to appellants more than a year afterwards (...