Korompilos v. Tompras

• Decision Date: 06 March 1923
• Docket Number: No. 17643.,17643.
• Citation: 251 S.W. 80
• Parties: KOROMPILOS v. TOMPRAS
• Court: Missouri Court of Appeals

251 S.W. 80

KOROMPILOS v. TOMPRAS

No. 17643.

St. Louis Court of Appeals, Missouri.

March 6, 1923.

Rehearing Denied May 22, 1923.

Appeal from St. Louis Circuit Court, Granville Hogan, Judge.

"'Not to be officially published."

Suit by Gus Korompilos against George Tompras. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Cobbs & Logan, of 1St. Louis, for appellant.

Chester H. Krum, of St. Louis, for respondent.

BRUERE, C.

Bill in equity by plaintiff to enforce an executed trust in personalty. The record brings up for review the action of the circuit court in sustaining a demurrer to the petition, and, upon plaintiff's refusal to further plead in this cause, entering up a final judgment in favor of the defendant.

The second amended petition, inter alia, contains the following allegations:

"For his cause of action, plaintiff states that on or about the 1st day of November, 1919, plaintiff and defendant were in Wichita Falls, Tex., each seeking an opportunity to make an investment in oil lands or oil stock; that defendant informed plaintiff that he (defendant) knew where he could purchase in St. Louis one hundred (100) shares of the capital stock of the United Drilling & Development Company, a Texas trust, at $12 per share. Defendant told plaintiff that, if plaintiff would buy 50 shares, he would buy the other 50 shares; that he would wire to his wife in the city of St. Louis to buy the 100 shares, and that he (the defendant) would hold 50 of the said shares in trust for plaintiff in consideration of plaintiff's paying one-half of the cost of said 100 shares, to wit: For 50 shares at $12 each, or a total of $600.

"That plaintiff then and there agreed with defendant that defendant should wire to St. Louis to purchase the 100 shares of said stock at $12 per share, 50 shares of which should be held by the defendant in trust for the plaintiff, and that plaintiff then and there, on or about November 4, 1919, tendered payment to the defendant in amount of $600, but that defendant refused same at said time, requesting plaintiff to wait until said stock had actually been purchased and paid for by defendant and delivered to plaintiff.

"That on said date, on or about November 4, 1919, defendant wired to his wife in St. Louis to buy one hundred (100) shares of stock in the United Drilling & Development Company at the price of $12 per share, and told plaintiff at the time of sending said telegram that, when said shares were purchased for defendant by defendant's wife, he would hold 50 shares of said stock in trust for plaintiff.

"That thereafter, to wit, on or about November 6th, defendant received a telegram from defendant's wife, addressed to defendant at Wichita Falls, Tex., which telegram was opened and read aloud in the presence of plaintiff and defendant, and which telegram stated that defendant's wife had purchased 100 shares of stock as aforesaid, at $12 per share.

"Plaintiff avers the fact to be that said shares of stock had been purchased for defendant by defendant's wife, pursuant to instructions of defendant and pursuant to the agreement of plaintiff and defendant, as above set out; that at said time and place, upon the reading of said telegram, defendant stated to plaintiff in the presence of witnesses that he (the defendant), held 50 of those shares in trust for plaintiff; that 50 of those shares belonged to plaintiff, and that he would deliver the certificate of plaintiff's 50 shares to him as soon as they both returned to St. Louis.

"Plaintiff states that thereafter frequently the defendant stated to plaintiff that 50 of the shares of stock of the United Drilling & Development Company held by defendant belonged to the plaintiff; that he was holding same in trust for the plaintiff, and, that he would deliver certificate for same whenever plaintiff requested same after they returned to St. Louis.

"Plaintiff states that, shortly after the pure chase of said stock by defendant, and shortly after the declaration by defendant that he held said stock in trust for plaintiff, the market value of said stock increased, and that defendant, so plaintiff is informed, sold said stock on or about the 10th day of January, 1920, for $100 per share.

"That defendant, upon plaintiff's demand, has refused to deliver to plaintiff plaintiff's 50 shares, and has refused to account to plaintiff for the sale price thereof if said shares have been sold, and still wrongfully withholds said stock or wrongfully retains and withholds the proceeds of said stock from plaintiff.

"Plaintiff further states that defendant now refuses to recognize plaintiff's interest in said property, and that plaintiff is without adequate remedy at law.

"Wherefore plaintiff prays the decree of this court, enforcing the said trust, declaring the defendant to be trustee of the said stock, or in the event same has been sold, then of said funds realized by said sale, for the plaintiff, and directing that the defendant account to the plaintiff for the said stock or for the sum of $5,000. or such other amounts as the sale price of said stock may have been, together with any dividends that may have been received by the said defendant on said stock, less the amount of plaintiff's indebtedness to the said defendant for the original purchase price, to wit, $600. which sum plaintiff hereby tenders for said defendant and plaintiff prays for such other and further relief as the court may seem meet and proper."

The point presented for decision is whether the petition sufficiently alleges an executed trust in personalty.

Defendant contends: (1) That the alleged arrangement between plaintiff and defendant is within the statute of frauds; (2) that the facts alleged in the petition constitute a voluntary executory promise to create a trust, unsupported by a valuable consideration, and therefore unenforceable.

It is a well-settled rule, in this state, in the law of trusts, that the statute of frauds does not extend to trusts...