Kemp v. Foster

• Decision Date: 14 June 1886
• Citation: 22 Mo.App. 643
• Parties: THOMAS H. KEMP, Respondent, v. THOMAS W. FOSTER, Appellant.
• Court: Kansas Court of Appeals

22 Mo.App. 643

THOMAS H. KEMP, Respondent, v. THOMAS W. FOSTER, Appellant.

Court of Appeals of Missouri, Kansas City.

June 14, 1886

APPEAL from Livingston Circuit Court, HON. JAMES M. DAVIS, Judge.

Reversed and remanded.

Statement of case by the court.

The plaintiff is an attorney at law. The petition in this case was in three counts. In the first count, the plaintiff sought to recover the value of certain legal sevvices rendered by him for the defendant. That count need not be noticed by us for the reason that no point is made here as to the cause of action stated therein.

The second and third counts of the petition are as follows " Plaintiff, for his second cause of action, states that during the months of February and March, 1880, he, at the request of one Lucy Rensch, performed legal services for her to the value of one hundred dollars. That afterwards, on or about April, 1880, plaintiff authorized the sad Thomas W Foster to receive for the plaintiff the said sum of one hundred dollars from said Lucy Rensch, and that said defendant did receive said sum of one hundred dollars from said Rensch for plaintiff, and promised to pay the same to him. That plaintiff has demanded the same of defendant, and defendant has refused and neglected to pay the same wherefore, plaintiff asks judgment for the said sum of one hundred dollars, with interest at the rate of six per cent.

Plaintiff, for his third cause of action, states that on or about the first day of January, 1880, he was the owner of the following described real estate, situate in the county of Livingston, and state of Missouri, to-wit: The north half of the southwest quarter of section number nine (9), in township number fifty-nine (59), of range number twenty-three (23), containing eighty acres. That afterwards, in the year 1880, he conveyed by warranty deed in the usual form, his wife joining in the deed of said land to the defendant and delivered said deed to him. That said deed was made and delivered to defendant with the understanding and intention to constitute him as trustee to hold and sell the land for plaintiff. That it was understood and agreed that defendant was to sell said land for the best advantage, and out of the proceeds pay all incumbrances on and against said lands, and account to the plaintiff for the balance and pay the said balance to plaintiff when demanded. That defendant accepted said trust and afterwards sold and conveyed said lands by warranty deed, in the usual form, his wife joining and releasing dower to one Jackson Perrin for the sum and consideration of one thousand and fifty dollars ($1,050), and received the said sum from the said Perrin. That plaintiff has demanded of said Foster, defendant, a settlement as trustee, but that he has failed and refused to make any settlement of the matter, and plaintiff charges and avers that on a full and fair settlement of the proceeds of said land, after deducting all incumbrances and charges, that there will be due to the plaintiff from defendant the sum of four hundred and fifty dollars, with interest from about April, 1880. That defendant has never paid any part of said proceeds to plaintiff, except the sum of twenty-six dollars.

Plaintiff prays the court that defendant be compelled to make an accounting as trustee, and plaintiff have judgment for whatever shall be due plaintiff on said accounting and for costs against the defendant."

In answer to the second count of the petition the defendant denied all the allegations thereof.

The answer to the third count contained a general denial, except in so far as certain allegations of the petition were expressly admitted, and also contained, among others, the following allegations:

" * * * that early in September, 1879, plaintiff represented to defendant that he, plaintiff, was the owner of said land, and offered defendant the usual commission to sell the same for him, plaintiff; that no amount was named as the commission, but defendant says that the usual commission was, and is, five per cent. for the first $2,000; that defendant accepted said offer and agreed to and did sell said land to said Perrin," etc.

The reply was a general denial.

The defendant was the administrator of the Blake estate. As to the claim, made in the second count, the plaintiff testified as follows:

" For the one hundred dollars charged in the second count, I held a claim against W. Blake's estate for Lucy Rensch for six hundred and thirty-four dollars, which I got allowed for her against said estate. I gave Foster my receipt for one hundred dollars, and he promised me he would collect it for me. I saw Mrs. Rensch afterwards, and she said it was all right and would be paid. Foster keeps the receipt to this day, and at the time I gave Foster the receipt for one hundred dollars in the Lucy Rensch matter, I was attorney for Lucy Rensch and held her claim against the estate for collection."

On this matter there was no other evidence for the plaintiff.

Upon this subject the defendant testified as follows: " Plaintiff gave me a receipt for Lucy Rensch to enable me to collect one hundred dollars, which he claimed was due him from her, for getting six hundred and thirty-seven dollars, allowance for her against the Blake estate. I told him I would collect it. I took the receipt to her; she said she would not pay it. She showed me Kemp's receipt for fifteen dollars, in full. She refused to pay it, and I never collected a dollar from her for Kemp. I have not had a final settlement with her yet." There was no other evidence than this on this subject, so far as shown by the abstract of the record filed by the appellant and respondent in this case.

The court tried the case sitting as a jury. The plaintiff offered no declaration of law. The court gave none on the second count, but refused the following asked by the defendant:

" 3. The court declares the law to be, that, under the petition in this case, the plaintiff cannot recover the claim of one hundred dollars in the Lucy Rensch claim, unless the defendant has collected the same from Lucy Rensch, as charged in the petition."

" 5. The court declares the law to be, if the court finds, that the item of one hundred dollars was evidence by a receipt to Thomas W. Foster for that amount, which was to be paid by said Foster, as administrator of Willis Blake's estate, and that said sum was for fees that plaintiff claimed against said Lucy Rensch and was to come out

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