Harrison v. Craven

• Decision Date: 24 May 1905
• Citation: 87 S.W. 962,188 Mo. 590
• Parties: HARRISON, Appellant, v. CRAVEN
• Court: Missouri Supreme Court

87 S.W. 962

188 Mo. 590

HARRISON, Appellant, v. CRAVEN

Supreme Court of Missouri, First Division

May 24, 1905

Appeal from Clay Circuit Court. -- Hon. J. W. Alexander, Judge.

Reversed and remanded (with directions).

T. W Harrison and Edwin Silver for appellant.

(1) An equity case is tried de novo in the appellate court, as if it originated there. Sheridan v. Nation, 159 Mo. 27; Railroad v. Brandon, 81 Mo.App. 1; Robertson v Sheperd, 165 Mo. 360. The appellate court will examine the facts and render judgment for the right party notwithstanding the findings of the trial court. Donivan v. Donivan, 157 Mo. 157; Fitzpatrick v. Weher, 168 Mo. 562; Hoeller v. Haffner, 155 Mo. 589. (2) The agency being clearly established, the trust necessarily follows, and it only remains to consider the effect of that agency and the liability of the respondent thereunder. Price v. Comstock, 121 F. 622; Ins. Co. v. Smith, 117 Mo. 295; Grumley v. Webb, 44 Mo. 454; Eoff v. Irvine, 108 Mo. 383. In Grumley v. Webb, 44 Mo. 451, the court says: "Nothing is better settled than that an agent or a trustee, or any person acting in a fiduciary capacity, cannot speculate for his private gain with the subject-matter committed to his care, to the prejudice of his principal. He cannot be allowed to purchase an interest in property where he has a duty to perform which is inconsistent with the character of purchaser. The law does not presume that such a transaction will always be impressed with fraud, but it furnishes an inducement to fraud, and affords opportunities to persons, who should always act with the most conscientious and scrupulous good faith, to abuse their trust, and therefore, a total disability is enjoined, to take away all temptation." Jamison v. Glascock, 29 Mo. 191; Boardman v. Florez, 37 Mo. 559; Jacques v. Edgell, 40 Mo. 77; Thornton v. Irwin, 43 Mo. 153; State, etc., v. McKay, 43 Mo. 594; McNew v. Booth, 42 Mo. 189; 1 Am. and Eng. Ency. Law (2 Ed.), 1060; Opie v. Serrill, 6 W. & S. 264; Mechem on Agency, sec. 478. If the agent once enters upon the execution of the business, and any loss results from his neglect or failure, he may be held responsible. 1 Am. and Eng. Enc. of Law (2 Ed.), 1060. By undertaking the work he becomes an agent, whether he could have been compelled to act as the agent or not, and is then bound to carry out his instructions in good faith. Spencer v. Towles, 18 Mich. 9; McGee v. Best, 6 J. J. Marsh. (Ky.) 453; Walker v. Smith, 1 Wash. (U.S.) 152; Williams v. Higgins, 30 Md. 404; Passano v. Acosta, 4 La. 26 (23 Am. Dec. 470). An agent is in all cases bound to act in good faith. Mechem on Agency, sec. 495; Page v. Wells, 37 Mich. 415; Whitney v. Merch. Union Exp. Co., 104 Mass. 152. An agent employed to manage, care for, or sell real estate cannot acquire interests in it adverse to his principal. Mechem on Agency, sec. 468; Ellsworth v. Condray, 63 Iowa 675; Collins v. Rainey, 42 Ark. 531; Woodman v. Davis, 32 Kan. 344. (3) Defendant having entered upon the performance of the employment by plaintiff to purchase the lot for plaintiff and having acted in bad faith in that service and taken the title in his own name for the purpose of cheating and defrauding plaintiff, a resulting trust arises in favor of plaintiff. Hillman v. Allen, 145 Mo. 643; Curd v. Brown, 148 Mo. 82; Butler v. Carpenter, 163 Mo. 606; Damshoerer v. Thias, 51 Mo. 103; Cloud v. Ivie, 28 Mo. 579; Groves v. Fulsom, 16 Mo. 543; Turner v. Johnson, 95 Mo. 431; Leahy v. Leahy, 11 Mo.App. 413; Cash v. Clark, 6 Mo.App. 636. Part performance of an oral contract will take it out of the Statute of Frauds. Fuchs v. Fuchs, 48 Mo.App. 23. Full performance by one of the parties takes it out of the statute. Hall v. Harris, 145 Mo. 622; Bless v. Jenkins, 129 Mo. 657; Mooks v. Davis, 72 Mo.App. 562. Implied, constructive and resulting trusts are not within the Statute of Frauds. Peacock v. Nelson, 50 Mo. 261; Baier v. Berberick, 6 Mo.App. 540; Shaw v. Shaw, 86 Mo. 598. Where one obtains title to real estate for the benefit of another and then attempts to hold it, a trust arises by implication in favor of the principal which a court of equity will compel the agent to execute. Such cases are not within the Statute of Frauds. Peacock v. Nelson, 50 Mo. 261; Groves' Heirs v. Fulsom, 16 Mo. 549. A verbal agreement to purchase lands for another is not within the Statute of Frauds. Turner v. Johnson, 95 Mo. 447; Michew v. Booth, 42 Mo. 192; O'Fallon v. Clopton, 89 Mo. 290; Potter v. Jacobs, 117 Mass. 132; Temple v. Johnson, 71 Ill. 13. Any memorandum signed by the party to be charged would be sufficient to take the case out of the Statute of Frauds. Mastin v. Grimes, 88 Mo. 484; Fry on Specific Performance of Contracts, secs. 295, 346; Waterman on Specific Performance of Contracts, sec. 201; Pomeroy on Specific Performance of Contracts, sec. 395. A letter written to a third party by the person to be charged would be sufficient to take it out of the Statute of Frauds. Moore v. Mountcastle, 61 Mo. 424; Cunningham v. Williams, 43 Mo.App. 631; G. B. G. Co. v. Cooper, 23 Mo.App. 301; Cash v. Clark, 61 Mo.App. 641; 1 Greenleaf on Evidence, sec. 268. It is the settled law in this State that where a memorandum for sale is made by one of the parties as agent for a third person who is not named therein, and this appears in the memorandum, parol evidence is admissible to show who the unnamed principal is. Kelly v. Thuey, 102 Mo. 529; Mauts v. McGuire, 52 Mo.App. 150; Higgins v. Dellinger, 22 Mo. 400; Briggs v. Munchon, 56 Mo. 473; Hartzel v. Crumb, 90 Mo. 640; Klasterman v. Loos, 58 Mo. 294; Ins. Co. v. St. Mary Seminary, 52 Mo. 480; Musser v. Johnson, 42 Mo. 74; Shnetz v. Bailey, 40 Mo. 69; Smith v. Alexander, 31 Mo. 193. Story on Agency, sec. 160a; Whart. on Agents, sec. 403; Fry on Specific Performance, sec. 148; Huntington v. Knox, 7 Cush. 371; Briggs v. Partridge, 64 N.Y. 357.

William E. Fowler and Sandusky & Sandusky for respondent.

(1) There is substantial evidence to sustain the findings of the court below, and the judgment should not be disturbed. Dunivan v. Dunivan, 157 Mo. 157; Becht v. Becht, 168 Mo. 525; Chance v. Jennings, 159 Mo. 544. (2) All that passed between appellant and respondent was verbal; and if any employment of respondent, with reference to the lot, was had by appellant, it was within the Statute of Frauds. Allen v. Richards, 83 Mo. 55. (3) The rent account was settled, and a receipt in full taken from the Nichols heirs, prior to appellant's alleged assignment of the rents to him.

LAMM J. Marshall, J., not sitting.

OPINION

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, Missouri; that Harrison purchased lots nine and ten in block ten, in the city of Excelsior Springs, in February, 1902, and procured title thereto except as to the north one-fourth of lot ten, said north one-fourth being a small strip seventeen and one-half feet wide by forty 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 ten, 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 they 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 fifty to seventy-five dollars, 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 or 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...