Hickey v. Sigillito

• Decision Date: 02 June 1942
• Docket Number: No. 25910.,25910.
• Citation: 162 S.W.2d 638
• Parties: HICKEY et al. v. SIGILLITO.
• Court: Missouri Court of Appeals

162 S.W.2d 638

HICKEY et al. v. SIGILLITO.

No. 25910.

St. Louis Court of Appeals. Missouri.

June 2, 1942.

Rehearing Denied June 19, 1942.

Appeal from Circuit Court, St. Louis County; Peter T. Barrett, Judge.

"Not to be reported in State Reports."

Action by Joseph F. Hickey and others, as agents of Wydown Court, a subdivision located in the City of Clayton, in St. Louis County, Mo., against Vincent C. Sigillito, to recover with interest certain moneys alleged to have been wrongfully paid by defendant to himself while acting as secretary and treasurer and as one of the agents of Wydown Court. From an order granting defendant a new trial, after entry of a judgment in favor of plaintiffs, the plaintiffs appeal.

Order granting a new trial affirmed, and cause remanded.

Buder & Buder and G. A. Buder, Jr., all of St. Louis, for appellants.

Adrian L. Bushman, of Clayton, and Banister, Leonard & Sibley, of St. Louis, for respondent.

SUTTON, Commissioner.

This action was commenced in the Circuit Court of St. Louis County on March 22, 1939, wherein plaintiffs as agents of Wydown Court, a subdivision located in the city of Clayton, in St. Louis County, seek to recover with interest certain moneys aggregating $999.23 alleged to have been wrongfully paid by defendant to himself during the period from July, 1934, to January, 1936, while acting as secretary and treasurer and as one of the agents of Wydown Court.

The trial, with a jury, resulted in a verdict in favor of plaintiffs for $1,059.18, and judgment was given accordingly. From the order of the court granting defendant a new trial, plaintiffs appeal.

Plaintiffs' petition alleges that on July 5, 1934, March 14, May 11, June 13, July 11, July 25, November 30, 1935, and January 2, 1936, defendant, while acting as secretary and treasurer and as a member of the board of agents of Wydown Court, wrongfully, unlawfully, and without right, power, or authority so to do, and without the knowledge and consent of his co-agents, and without any consideration therefor, disbursed and paid to himself from and out of the funds of Wydown Court amounts aggregating $999.23.

Defendant's answer alleges that by action or consent of said board of agents of Wydown Court, while he acted as secretary and treasurer of said board of agents, he was authorized and directed by the members of said board to collect and pay out for lawful demands any moneys which came into his hands as treasurer of said board, and that he collected certain moneys as such member of the board of agents and treasurer thereof and that he paid out the same from time to time, upon a general direction and authority to him to pay out the same in satisfaction of any lawful claims for which the board of agents was responsible; that at one time he did have and own a claim for certain moneys which the board of agents was responsible for, and that he made payments from time to time thereon to himself, but that he never did so without the knowledge and consent of the other agents, who with himself composed the board of agents, and that the sums which were so paid to himself were paid by and with the consent and general directions given to him as treasurer of the board of agents, and that he is not indebted to said board of agents in any sum whatsoever whether on account of any payments received by him or otherwise.

Wydown Court was subdivided and laid out as a subdivision pursuant to a deed dated July 13, 1923. By said deed the Moorland Land Company, a corporation, conveyed to S. T. Bixby, Frederick L. Cornwell and W. J. Holbrook, as trustees of said subdivision, and to any successor or successors of them or either of them, all the streets and private ways of said subdivision to have and to hold said private ways, streets and sidewalks unto said trustees and unto the survivor or survivors of them, or either of them, and for and during the lifetime, but no longer, of the last survivor of said trustees, and empowered said trustees to maintain and repair sewers, pipes, wires and other structures upon, over and under all streets, easement strips, tracts or parcels of land in said Wydown Court, with the power to grant to any person or corporation undertaking to furnish electricity, heat, light, power, or gas, or any convenience for a residence district, the right to place the necessary wires, pipes, conduits, or other implements upon, in, or under said streets, easement strips, tracts or parcels of land, and to make contracts for supplying occupants of the land abutting upon said streets with such utilities, to maintain, improve, repair, and reconstruct the streets, private ways and sidewalks, to make provision for lighting the private park, streets and sidewalks and to make assessments against the several lots and against the owners thereof, to pay the costs of such work and the incidental expenses of the same and of administering said trust. The deed provides further that the trust shall continue during the lifetime of the persons named in the deed as trustees and no longer, that is to say, until the decease of the last survivor of said persons, after which time said trust and all the estate, legal or equitable, of the trustees and of any successor or successors of either of them created and vested in them by the deed shall cease and be fully ended and determined, and that from and after the decease of the last survivor of said persons, who are named as trustees, the legal title to the private ways, streets and sidewalks shall vest in all of the then owners of the lots, and their heirs and assigns, as tenants in common, but subject to the easements, conditions, restrictions, covenants and charges applicable thereto.

Frederick L. Cornwell, the last survivor of the trustees named in the deed, died on February 8, 1933, thereby terminating the trust.

On December 28, 1933, at a meeting of the lot owners of said subdivision, Joseph F. Hickey, Gus M. Biston and Vincent C. Sigillito, all of whom had theretofore served as successor trustees of the subdivision, were elected agents of the subdivision. At such meeting there was conferred upon the agents so elected "full power, right, and authority to do and perform each and every act and have and possess each and every right and power necessary to enable them to manage and control said subdivision and every part thereof as they heretofore have done, but as the agents of the owners of all of the lots of said subdivision and no longer as trustees." They were also given the same power as the trustees had to make assessments against the lots and to collect and enforce the same, and also to collect and enforce any assessments which were made by the trustees and pay any unpaid bills incurred by them.

On August 14, 1930, defendant became the owner of a preferred trustee's certificate, which had been issued by the St. Louis Union Trust Company, as trustee, and was in terms payable out of a trust fund to be accumulated from the sale of lots in Moorlands Addition. On June 15, 1934, defendant wrote a letter to the Moorland Land Company offering to the Moorland Land Company the said certificate in exchange for its claim against the trustees of Wydown Court for the installation and maintenance of a lighting system in said court. The Moorland Land Company accepted defendant's proposition, and executed and delivered to him an assignment of its claim. The amount of the claim was $795.05 and accrued interest. The lighting system was installed in 1928, and the bill for the installation, amounting to $687, was rendered in December, 1928, upon the completion of the lighting system. The installation of the lighting system was done by the Burke Electric Company under a contract with the Moorland Land Company, the trustees of Wydown Court having previously agreed with the Moorland Land Company to reimburse it for the cost of the installation. The bill for the installation was fully paid by the Moorland Land Company to the Burke Electric Company on February 5,...