Harrison v. Craven

• Decision Date: 24 May 1905
• Parties: HARRISON v. CRAVEN.
• Court: Missouri Supreme Court

87 S.W. 962

188 Mo. 590

HARRISON v. CRAVEN.

Supreme Court of Missouri, Division No. 1.

May 24, 1905.

AGENCY TO PURCHASE LAND — DISLOYALTY OF AGENT — TRUST EX MALEFICIO — EXISTENCE OF AGENCY — EVIDENCE — DAMAGES — REMOTENESS.

1. Plaintiff employed defendant to purchase land, on which, together with land already owned by plaintiff, he intended to erect a building. Defendant bought the land in his own name, and refused to convey to plaintiff, except on payment of a price largely in excess of that paid by him. Plaintiff was thereby unable to commence work on the building until over a year from the time when he intended to do so. In the meantime the price of labor and materials for building increased. It did not appear that, when the agency was created, plaintiff had any contract for the erection of the building, nor that defendant knew that the price of labor and materials was going up. Held, in an action to compel defendant to convey to plaintiff, and for damages for breach of the contract of agency, that the increased price of labor and materials for building was too remote to constitute an element of damage.

2. In an action against a real estate agent to compel him to convey property, which it was alleged he had been employed by plaintiff to purchase for him, and title to which had been taken in the agent's name, evidence held to show that a contract of agency existed.

3. Where plaintiff employed defendant as his agent to purchase certain property, and defendant, falsely representing to the seller that it was necessary that he should take title temporarily, wrongfully procured the deed to be made in his own name, he held title as a trustee ex maleficio, and was liable at the suit of plaintiff to be compelled to convey.

4. Where an agent, employed to purchase property, wrongfully took title in his own name, and refused to convey to the principal, except on payment of a largely increased price, he was not entitled to commission.

Appeal from Circuit Court, Clay County; Joshua W. Alexander, Judge.

Action by T. W. Harrison against Joshua Craven. From a judgment for defendant, plaintiff appeals. Reversed.

T. W. Harrison and Edwin Silver, for appellant. William E. Fowler and Sandusky & Sandusky, for respondent.

LAMM, J.

Harrison sued Craven in two counts. In the first count of an amended petition he alleged, in substance, that Craven was a real estate agent in the city of Excelsior Springs, Clay county, Mo.; that Harrison purchased lots 9 and 10, in block 10, in the city of Excelsior Springs, in February, 1902, and procured title thereto, except as to the north one-fourth of lot 10, said north one-fourth being a small strip 17½ feet wide by 40 feet long, lying next to an alley; that said property was purchased for the purpose of erecting a building for sanitarium purposes, which building, because of the peculiar location of the ground, could not be erected without first obtaining the said north one-fourth of lot 10, all of which was well known to said Craven; that said Craven represented to Harrison that he knew where the owners to said strip were, that there were three heirs, and hard to deal with, but that he was in communication with them, and could buy said strip at a reasonable price, and for less than any one else could, and would undertake to get said strip from the owners for Harrison; that thereupon Harrison employed Craven as his agent to purchase said strip from its owners, and authorized him to offer not to exceed $325, and it was the agreement that Harrison would furnish the money, and that the building on said strip, worth from $50 to $75, should go to Craven for his services as agent; that Craven accepted said employment, went into correspondence with the owners of said strip, whose residence, whereabouts, and names were unknown to Harrison, and, in pursuance of said employment, negotiated the purchase of said strip, and purchased the same for the sum of $300, while acting as the agent of plaintiff; that in violation of the contract of agency, and in bad faith towards Harrison, with intent to cheat, wrong, and defraud him out of said strip, or to "hold up" Harrison and compel him to pay an exorbitant price therefor, or prevent the erection of said sanitarium, Craven took title in his own name on March 12, 1902, and recorded his deed; that thereupon Harrison, on or about the 24th of April, 1902, tendered Craven $325 of lawful money of the United States, he (Harrison) not knowing at the time the exact sum said Craven had paid for the strip as his agent, and thereupon demanded a deed from Craven, and at the same time tendered him the building on said strip, but said Craven refused to accept anything less than $500, and demanded said $500 and the building before he would make a deed, falsely alleging and claiming that he had paid $500 for the strip, all of which was done by Craven for the purpose of cheating and defrauding Harrison as aforesaid; that Harrison was at all times able, ready, and willing to pay the price which the heirs owning the strip asked therefor, and kept the money lying in the bank to pay for same. It is further averred that, because of the wrongful conduct of Craven, the construction of the sanitarium had been delayed for a year, and that Harrison was damaged thereby in the sum of $1,000 "in the increased cost it will require in the erection of said building"; that Harrison keeps his tender good, and offers to pay Craven $325 for the strip and give him the building, or to pay him such sum as the court shall deem just and equitable, and tenders the same into court for the use and benefit of said Craven for said title; but, Harrison avers, Craven by reason of his bad faith as aforesaid is not entitled to any compensation for his services, and is only entitled to receive at the judgment of the court such sum as he actually paid out. It is further alleged in said count that Craven is receiving and appropriating the rent of said property at the rate of $5 per month since March 12, 1902, and refuses to convey the property to plaintiff, and refuses to account to plaintiff for said rent, and refuses possession. The prayer is for a decree of title, and that Craven may be denied all compensation, and may be compelled to account to plaintiff for all rents and profits as aforesaid, and be mulct $1,000 by way of damages for the fraud and deceit, and for delaying and preventing the construction of the sanitarium aforesaid. The second count of the petition is at law, and sets forth that Craven, as the agent of Pearl Nicolds, Ora F. Turpin, Byrd F. Lawrence, and Dovie Nicolds, the owners of said strip, to rent and collect rents for their use and pay the same over to said owners, rented the same, collected rents at the rate of $5 per month for every month since the 1st of January, 1897, up to the 1st day of March, 1902, and that, in violation of the terms of his agency as such rent collector, he failed to pay over all said rents, appropriated the same to his own use and be-hoof, and thereby became indebted to said owners in the amount thereof, to wit, the sum of $360.30, principal and interest; that said owners had no knowledge that Craven had collected and appropriated said rents until May 1, 1902, after the purchase of said strip for plaintiff; that, on the facts coming to light, they demanded of him to account for and pay over said rents, which he refused and still refuses to do. An assignment of said rents by the Nicolds heirs to Harrison, under date of March 12, 1902, really made on June 2, 1902, is averred, and it is alleged that said rents have not been paid to plaintiff, principal or interest, and are now due by Craven to plaintiff, for which he demands judgment, in addition to the prayer and demand for judgment in the first count.

The answer is a general denial of every allegation in the first and second counts of the amended petition, and it then pleads the following affirmative defense to the second count: "And the said defendant, further answering the second count in said amended petition contained, alleges that on the 12th day of March, 1902, he purchased the property described in plaintiff's amended petition, being the north half of the north half of lot No. ten (10), in block No. ten (10), in the city of Excelsior Springs, Clay county, Missouri, for the price of $300, by deed recorded in book 126, at page 318, of the deed records of Clay county, Mo. Said deed was delivered on or about March 24, 1902. As a part of said contract of purchase the defendant released all claims in his favor for the taxes or expenses of any kind paid or incurred by him on account of said lot, and the grantors in the said deed to him released any and all claims against defendant for rents collected on account of said property, and the sum of $300 was paid by this defendant to the grantors in said deed for said property under said agreement. Defendant alleges that said account for rents sued for by plaintiff in second count has been settled as herein stated, and said settlement was made by the grantors in said deed to defendant before the assignment of said rents by the said grantors to the plaintiff in this cause, if any assignment was made. And said settlement has not been set aside, but remains in full force. Wherefore," etc.

The replication was a special denial of the allegations of affirmative matter in the answer.

A jury being waived in the law count, the cause was submitted to the court in November, 1902. At the close of the evidence the plaintiff was permitted to amend his petition to conform to the proofs, which amendment in substance sets forth that, by reason of the breach of good faith on the part of Craven as set forth in the petition, the construction of the sanitarium therein described cannot be commenced or proceeded with until this action be determined, and the title of the north one-fourth of said lot is divested and vested in plaintiff; that it was the intention and...