Plumb v. Cooper

• Decision Date: 14 May 1894
• Citation: 26 S.W. 678
• Parties: PLUMB et al. v. COOPER et al.
• Court: Missouri Supreme Court

26 S.W. 678

PLUMB et al. v. COOPER et al.

Supreme Court of Missouri, Division No. 1.

May 14, 1894.

RESULTING TRUST — EVIDENCE TO ESTABLISH.

In a suit to establish a trust, it appeared that plaintiffs, having an option on land, sold it to defendants at the price fixed by their option. Plaintiffs testified that it was verbally agreed that they should have a fourth interest in the land, for their option. At the time of making the purchase, defendants agreed in writing to pay plaintiffs one-fourth of the net profits on a resale, in consideration of plaintiffs' assistance in making such resale, but such contract did not mention any interest of plaintiffs in the land. One witness testified that, after defendants' purchase, one of the plaintiffs told him they made the sale, as their option would soon expire, and it would advertise their business. One of defendants testified that plaintiffs told him they claimed no interest in the land. Held, that a trust was not established.

Appeal from circuit court, Lawrence county; M. G. McGregor, Judge.

Action by Plumb & Minor against John C. Cooper and another. From a judgment for defendants, plaintiffs appeal. Affirmed.

N. Gibbs and Wm. B. Skinner, for appellants. Carr McNatt and Henry Brumback, for respondents.

MACFARLANE, J.

This is a suit in equity, the object of which is to declare in plaintiffs a resulting trust in 14 acres of land situate in Lawrence county, the legal title to which is held by defendant V. H. Abbott under deed to him from his codefendant, Cooper. The petition charges: That in June, 1889, plaintiffs were real-estate agents and dealers doing business in Aurora, in said county, and at the time had an option for the purchase of 37½ acres of mining land near that town from the owner, Emily C. Wilfley, at the price of $4,500. That, during that month, defendant Cooper came from the state of Kentucky, with the view of making investments in mineral lands for himself, defendant Abbott, and one Chilton. That they sold said land to Cooper for the sum of $6,000, and obtained a contract direct from the owner to him (Cooper), which fixed the contract price at $4,500, the amount for which they had an option. That at the time of this sale it was agreed, verbally, between plaintiffs and Cooper, that the option should be considered and valued at $1,500, and that they should have one-fourth interest in the land. The deed, afterwards made, vested the title in Cooper. That Cooper, afterwards, in June, 1890, without their consent, conveyed to Abbott, who had notice of plaintiffs' rights, the 14 acres in controversy, being a part of the 37½ acres conveyed to Cooper. That Abbott refused to recognize their rights, — and prayed he be required to convey to them one-fourth interest in the land, or that they be invested therewith by proper decree. The answer, though quite lengthy, is, in substance, a denial of the verbal contract relied upon by plaintiffs.

The evidence shows that Cooper went to Aurora in June, 1889, for the purpose of investing in mineral lands for himself, Abbott, and Chilton, as charged; that, prior thereto, plaintiffs, as real-estate agents and dealers, had held a written option for the purchase of the 37½ acres of land at $4,500, but the time limited in the option had, 12 days previously, expired. Plaintiffs testified, however, that they had a verbal agreement with the owner, by which the option continued until notice of withdrawal. There is no dispute that plaintiffs offered this land to Cooper. He agreed to take it, and a contract for its purchase at $4,500 was obtained from the owner, by which she undertook, upon the payment of the purchase price, to convey to Cooper. Plaintiffs both testified that, before the contract was made, a verbal agreement was entered into between them and Cooper, by which they were to have a fourth interest in the land. Plumb, one of the plaintiffs, testified: "We were to have a fourth interest in the land. The land was to be called six thousand dollars, and Mr. Cooper, Mr. Abbott, and Mr. Chilton were to have each one-fourth, and Plumb & Minor one-fourth, in lieu of our option." The other plaintiff testified to the same effect. Cooper testified positively that there was no agreement or understanding between him and plaintiffs, or either of them, by which they were to be considered as holding or owning, directly or indirectly, one-fourth interest in the land. Immediately on delivery of the contract for the purchase of the land, a written agreement was entered into between plaintiffs and Cooper, signed by each, as follows: "This agreement, made and entered into this the 17th day of June, 1889, by and between John C. Cooper, of Shelbyville Ky., party of the first part, and Plumb & Minor, of Aurora, Mo., parties of the second part, witnesseth that, whereas the said John C. Cooper has this day purchased a tract of 37½ acres of land near Aurora, Mo., formerly belonging to Emma C. Wilfley, and now it is mutually agreed between the parties hereto that the said Plumb & Minor are to cooperate with the said Cooper and his assigns in effecting the sale of said land at a price to be agreed upon by the parties hereto, and the said Plumb & Minor are to have, for their services, the sum of ¼ net profits realized out of the sale of said property, and the said Cooper will save the said Plumb & Minor harmless for their guaranty, this day made, of the discount of two promissory notes for $1,500 each, of even date herewith, for one and two years, at 8 per cent., by Citizens' Bank, of Shelbyville, Ky." This contract was written by Mr. Plumb, and it is not claimed that it does not express the agreement then in the minds of the parties...