Paramore v. Campbell

• Decision Date: 11 July 1912
• Parties: FRED J. PARAMORE et al. v. JAMES CAMPBELL, Appellant
• Court: Missouri Supreme Court

149 S.W. 6

245 Mo. 287

FRED J. PARAMORE et al. v. JAMES CAMPBELL, Appellant

Supreme Court of Missouri, First Division

July 11, 1912

Appeal from St. Louis City Circuit Court. -- Hon. Eugene McQuillin Judge.

Reversed and remanded (with directions).

Richard L. Goode for appellant.

(1) This is a contest for the possession of specific property, i e., certain bonds, and for either plaintiffs or defendant to prevail, they or he must establish a superior legal or equitable title to the property. It is not merely a case for some kind of equitable relief. In an interpleading between parties, the question is as to their respective titles to the very fund or property in dispute. 23 Cyc. 8, par. 5; Maclennan Interpleader, pp. 121, 180, 182, 191, 238, 269, 281 282; Story's Eq. Pl., Secs. 291, 196; Windicker v Ins. Co., 12 A.D. 73; Railroad v. Corwith, 5 N.Y.S. 792. (2) And while the rights of the claimants to the property in dispute may be determined when they rest on either legal or equitable titles or both, yet always the proceeding is contest over titles. 23 Cyc. 19; Maclennan Interpleader, p. 121. (3) According to the contract between plaintiffs and Campbell, all the funding bonds were to be delivered to Campbell, and he was to deliver seventy to plaintiffs on demand. Hence, plaintiffs have shown no legal title to any of the bonds, and no title, either legal or equitable, to more than seventy of them (i. e., none to the other ten in dispute), whatever case for an accounting or other redress they may have against Campbell personally. Fraud in inducement renders a contract voidable, not void, and until it is rescinded, property and money parted with on the strength of it cannot be recovered. Hence to get behind this contract and obtain a decree for the delivery of more bonds to them than it calls for, plaintiffs must have it rescinded and set aside, for until that is done it will determine who has title and right to the bonds. 9 Cyc. 431-433; Mitchell v. Parker, 25 Mo. 31; Oakes v. Railroad, 130 Mo. 27; Yeater v. Hines, 24 Mo.App. 619; Implement Co. v. Ellis, 125 Mo.App. 692; Blackman v. McAdams, 131 Mo.App. 408. (4) As consideration for his contract with the plaintiffs Campbell relieved them from payment of any part of the expense of procuring the settlement with the county. Plaintiffs neither offered to reimburse him to this extent, nor to do equity generally, nor even prayed for concellation and rescission of the contract. The decree of the court below took no account of what Campbell was out by way of consideration for the contract, and did not decree rescission of it, but simply ignored it and ordered delivery of all the eighty bonds to plaintiffs as though no contract had ever been made with Campbell, and he had parted with no consideration. That judgment ignored the rule that he who seeks equity must do equity, and cannot stand. Smith on Fraud, Secs. 133, 138; Jarrett v. Morton, 44 Mo. 277; Feld v. Inv. Co., 123 Mo. 603; Danforth v. Crookshanks, 68 Mo.App. 311; Miller v. Crigler, 83 Mo.App. 395; Culbertson v. Young, 86 Mo.App. 277. (5) The agreement between the parties being documentary, its terms and legal effect must be ascertained in the absence of fraud, solely from the documents. Dexter v. MacDonald, 196 Mo. 373; Boggs v. Laundry, 86 Mo.App. 616. (6) To conceive of the contract between the plaintiffs and Campbell as an authority to Campbell to represent the plaintiffs as their agent in a settlement with Cass county, is to misconceive it. In form and effect, it was a privilege or option granted to him by them, and for which he paid, to settle their judgments with them, by delivering to them seventy bonds, in the event the county voted to compromise its judgment debts by issuing bonds. Anderson v. Weiser, 24 Iowa 428; Synnott v. Shaughnessey, 2 Idaho, 122; Elevator Co. v. Hale, 201 Ill. 131; Ranney v. Barlow, 112 U.S. 207. (7) The alleged misrepresentations regarding the terms of settlement which had been proposed to the county prior to the execution of the contract, even if they occurred, are not ground for rescission or other relief, for two reasons: (a) They did not induce the contract; (b) No damage resulted to plaintiffs in consequence of them. Smith, Fraud, Secs. 126-144; 9 Cyc. 431; 1 Page, Contracts, Sec. 126; Smith v. Dye, 88 Mo. 581, 15 Mo.App. 585; Wannell v. Kem, 57 Mo. 478; Powell v. Adams, 98 Mo. 598. (8) The evidence fails to show any fraudulent misrepresentation by Campbell. Fraud must be proved either by testimony or circumstances, and cannot be based on suspicion and conjecture. Waddingham v. Loker, 44 Mo. 132; Priest v. Way, 87 Mo. 16; Thrasher v. County, 105 Mo. 244; Martin v. Estes, 132 Mo. 402; Kilpatrick v. Wiley, 197 Mo. 159; Shoe Co. v. Casebeer, 53 Mo.App. 640. It must be established by the party alleging it, and will not be presumed, but rather fair dealing and honest motive, when these stand as well with the facts. Shoe Co. v. Casebeer, 53 Mo.App. 640; Bernecker v. Miller, 44 Mo. 102; Basye v. Jamison, 124 Mo. 551. (9) The supposed contract of settlement with Campbell to which E. E. Paramore testified, is not ground of relief, if made, because the conduct of plaintiffs amounted to a renunciation or abandonment of it. 9 Cyc. 637; Henry v. Bassett, 75 Mo. 89. (10) Plaintiffs virtually concede in their answer in their testimony, and everywhere from first to last, that if Campbell had settled with the county at ninety per cent of the principal and interest of their judgments, they would have been entitled to only seventy bonds. But having settled for 94.4 per cent, as they say, instead of demanding for themselves the seventy bonds plus the 4.4 per cent excess and leaving Campbell the remainder, which their own version entitles him to, they demand the seventy bonds plus ten, and propose to leave him the 4.4 per cent. This is the effect of the decree, and is not only an inequitable, but an irrational result. Campbell, in any event, would only be bound to account for the surplus he made and plaintiffs only entitled to that much.

Block & Sullivan for respondents.

(1) The rule forbidding one to take profit at the expense of those for whom he is acting, controls every person "acting representatively." Dent v. Bennett, 4 Mylne & Cr. 277; Buffelow v. Buffelow, 2 Dev. & Bat. Eq. 250; Cadwallader v. West, 48 Mo. 496; Ryan v. Ryan, 174 Mo. 286; Sims v. Sims, 101 Mo.App. 418; Tate v. Williamson, L. R. 2 Ch. App. 60; 2 Pomeroy Eq. Jur. (3 Ed.), Sec. 956; Bellage v. Southee, 9 Hare, 540; Ins. Co. v. Smith, 117 Mo. 295; Bingham v. Sheldon, 101 A.D. 52; Rea v. Copelin, 47 Mo. 83. (2) The paper of March 12 was but the creation of an agency. Meek v. Hurst, 223 Mo. 693. (3) One who is acting for another may not contract with him regarding the matter to his own profit, without the most complete disclosure of all material circumstances. Cases supra; Kanada v. North, 14 Mo. 615; Euneau v. Rieger, 105 Mo. 677; Exter v. Sawyer, 146 Mo. 321; Dennison v. Aldrich, 114 Mo.App. 708; McKinley v. Williams, 74 F. 94. (4) Appellant having made positive misrepresentations and respondents being ignorant of the facts -- they may avoid their agreement so induced, notwithstanding by investigation they might have learned the truth. Davis v. Forman, 229 Mo. 48. (5) Where there are affirmative misstatements inducing action, an intention to deceive is not necessary to a rescission. Florida v. Morrison, 44 Mo.App. 538; Culver v. Smith, 82 Mo.App. 397; Smith v. Richards, 13 Pet. 34; Kell v. Trenchard, 142 F. 23; In re Am. Co., 173 F. 482. (6) A contract that appellant might settle respondents' claim at so much, is not a contract that he should keep all he might realize in excess of that figure. Turney v. Michael, 15 S.W. 912; Matheney v. Godin, 130 Ga. 713; Baysen v. Robertson, 70 Ark. 58; Walker, Real Estate Agents, Sec. 481. (7) An agency may be revoked at any time the principal so wills. State ex rel. v. Walker, 88 Mo. 279; Green v. Cole, 103 Mo. 71; Burke v. Priest, 50 Mo.App. 312; Mechem on Agency (Ed. 1889), Secs. 204, 207; 31 Cyc. 1294. (8) The agreement of April 7 was entirely without supporting consideration. Lingenfelder v. Brewing Co., 103 Mo. 593; MacFarland v. Hein, 127 Mo. 333; Glenn v. Hill, 210 Mo. 296; Dick v. Finnell, 39 Mo.App. 280; Moomaw v. Emerson, 80 Mo.App. 321; Wear v. Schmelzer, 92 Mo.App. 323; Grath v. Tile Co., 121 Mo.App. 249. (9) The finding of the trial court on questions of fact depending on oral testimony will not be overturned. Craemer v. Bivert, 214 Mo. 479; Huffman v. Huffman, 217 Mo. 191; Jones v. Thomas, 218 Mo. 540. (10) A bill of interpleader is a proceeding in equity, and the ultimate right of the parties is the question for determination. Roselle v. Bank, 119 Mo. 92; Lodge v. Elsner, 26 Mo.App. 113; Whitney v. Cowan, 55 Miss. 647. And in this proceeding all the equities between the parties are to be adjusted. Hayden v. Railroad, 222 Mo. 135; Hayden v. Railroad, 117 Mo.App. 88; Paquin v. Milliken, 163 Mo. 105; Peak v. Peak, 228 Mo. 557. (11) Appellant's so-called obligation laid no additional burden upon him. R. S. 1909, Sec. 1867; Leahi v. Dugdale, 34 Mo. 99; Bidwell v. Ins. Co., 40 Mo. 27; Bank v. Stuart, 73 Mo.App. 279; Little v. Trust Co., 197 Mo. 293. And respondents were not bound to surrender it. Moss v. Woodward, 155 Mass. 233. (12) Appellant's conduct does not commend his claim. Kline v. Hedges, 229 Mo. 169.

OPINION

GRAVES, P. J.

Plaintiffs, executors of the last will of N. Helen Paramore, deceased, sued the Mercantile Trust Company, of St. Louis, for the conversion of eighty Cass county bonds of the par value of $ 1000 each. They asked for damages in the sum of $ 80,000, and accrued interest.

The said Trust Company filed answer by which it was made to appear that as to the bonds in controversy it...