Plumb v. Cooper

• Decision Date: 14 May 1894
• Citation: 26 S.W. 678,121 Mo. 668
• Parties: Plumb et al., Appellants, v. Cooper et al
• Court: Missouri Supreme Court

26 S.W. 678

121 Mo. 668

Plumb et al., Appellants, v. Cooper et al

Supreme Court of Missouri, First Division

May 14, 1894

Appeal from Lawrence Circuit Court.-- Hon. M. G. McGregor, Judge.

Affirmed.

N Gibbs and Wm. B. Skinner for appellants.

(1) The trust of the legal estate results to the man who furnishes the purchase money.Story's Equity, sec. 1201.It is presumed that the conveyance to the third party is a matter of convenience.Ibid.The controlling question in inquiries of this nature, is the ownership of the purchase money.When this fact is established the trust is established by implication of of law.And the same rule holds as to a portion of the purchase money as to all of it, the resulting trust keeping tally with the ratio of ownership.Shaw v Shaw,86 Mo. 594;Baumgartner v. Guessfield,38 Mo. 36.(2) Such trusts are not within the statute of frauds and may be proved by oral testimony.R. S. 1889, sec. 5185;Shaw v. Shaw,86 Mo. 594;Grove v. Fulsome,16 Mo. 543;Cason v. Cason,28 Mo. 47;Story on Equity, sec. 752.(3) There is no presumption in this case that the first contract was included in the terms of the later one.The rule that parole evidence is not admissible to vary the terms of a written instrument "is directed only against the admission of any other evidence of the language employed by the parties in making the contract than that of the writing itself."Brown v. Bowen,90 Mo 184;1 Greenleaf on Evidence, sec. 277.Thus, if a part only be reduced to writing, the part left out may be proved by parol evidence.Lumber Co. v. Warner,93 Mo. 374, loc. cit. 384.Also parol evidence may be admitted to explain obscurity of the written terms. 93 Mo. 374, loc. cit. 384, supra.(4) If the written contract is vague as to what the net proceeds would be, the cost price not being given, then all the circumstances of the other deal were admissible to explain this, that is, whether the cost price was $ 4,500 or $ 6,000, and who paid that purchase price and for whom Cooper took the title.(5) Cooper, in his private letters to plaintiffs in September, 1889, calls this our land; and he sold two-thirds part thereof to Clark expressly subject to all claims of Plumb & Miner and which claims Clark assumed.This certainly is the very strongest evidence that plaintiffs had an interest in that land.Ellis v. Harrison,104 Mo. 270;Wolfe v. Dyer,95 Mo. 545;Jones v. Delassus,84 Mo. 541.(6) The written agreement made by Cooper and plaintiffs on June 17, 1889, after Cooper had contracted with Miss Wilfley for the land, expressly provides that the price at which said land should be sold should be agreed upon by Cooper and plaintiffs.This is certainly strong evidence that Cooper then recognized that plaintiffs had a vested interest in the land.If not, why are they, equally with Cooper who held the fee, to determine the price at which the land should be sold?(7) The precise relief to be given depends upon the circumstances of the case.Baier v. Berberich,6 Mo.App. 537.If plaintiffs contributed one-fourth of the purchase price for said land they are entitled to a decree for one-fourth of said land, or whatever interest they may have in said land.Baumgartner v. Guessfield, 38 Mo. 36.

Carr McNatt and Henry Brumback for respondents.

(1) It is not permissible to introduce oral evidence of an alleged contemporaneous and antecedent contract where the contract itself was reduced to writing.1 Greenl., Ev., sec. 275;Chrisman v. Hodges,75 Mo. 415;Pearson v. Carson,69 Mo. 550;State, etc., v. Hoshaw,98 Mo. 358;Morgan v. Porter,103 Mo. 135.(2)This court will not set aside the finding of the circuit court upon a question of fact arising in a cause of equitable cognizance, unless entirely satisfied that such finding is against the preponderance of the evidence.Taylor v. Cayce,97 Mo. 249;Cox v. Cox,91 Mo. 78;Hard v. Foster,98 Mo. 308;Toler v. McCabe,52 Mo.App. 534.(3) Parol evidence, to establish a resulting trust, must be so cogent as to leave no room for reasonable doubt in the mind of the chancellor.Rogers v. Rogers, 87 Mo. 259.

OPINION

Macfarlane, J.

This is a suit in equity, the object of which is to declare in plaintiffs a resulting trust in fourteen acres of land situate in Lawrence county, the legal title to which is held by defendantV. 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 thirty-seven and one-half 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, afterward 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 fourteen acres in controversy being a part of the thirty-seven and one-half acres conveyed to Cooper; that Abbott refused to recognize their rights, and prayed that 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 thirty-seven and one-half acres of land at $ 4,500, but the time limited in the option had, twelve 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 $ 6,000, and Mr. Cooper, Mr. Abbott and Mr. Chilton were to have, each, one-fourth, and Plumb and 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 seventeenth day of June, 1889, by and between John C. Cooper, of Shelbyville, Kentucky, party of the first part, and Plumb & Minor, of Aurora, Missouri, parties of the second part, witnesseth: That, whereas the said John C. Cooper has this day purchased a tract of thirty-seven and one-half acres of land near Aurora, Missouri, formerly belonging to Emma C. Wilfley, and now it is mutually agreed between the parties hereto, that the said Plumb & Minor are to co-operate 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 one-fourth net profits realized out of the sale of said property, and the said Cooper will save the said Plumb & Minor harmless for their guarantee, this day made, of the discount of two promissory notes for $ 1,500 each, of even date herewith, for one and two years, at eight per cent., by Citizens' Bank of Shelbyville, Kentucky."

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.

Upon his return to Kentucky, Cooper at once executed and delivered to his associates a declaration of trust, setting out the purchase of the land,...