Porter v. Merrill

• Decision Date: 03 April 1897
• Parties: Porter et al., Appellants, v. Merrill
• Court: Missouri Supreme Court

39 S.W. 798

138 Mo. 555

Porter et al., Appellants, v. Merrill

Supreme Court of Missouri, Second Division

April 3, 1897

Appeal from Jackson Circuit Court. -- Hon. John W. Henry, Judge.

Reversed and remanded.

Peak & Ball for appellants.

(1) Defendant is liable, having acted in his own name without disclosing his principal, and having expressly pledged his own credit for the performance of the promise contained in the declaration of trust. 1 Am. and Eng. Ency. Law, 402, 403 and cases cited. (2) Defendant certainly invested the money of Mrs. Smith. It is equally certain that he did not say or intimate any such thing to Moore, or Oliphant, or plaintiff until after the suit was filed. He kept the declaration which said he was the owner of a tenth. He treated with the parties as owner at various times. He said he was the owner in the contract for division in October, 1890. No doubt, he could prevent the conveyance of this tenth to Mrs. Smith unless she assumed this obligation which as her agent he personally incurred. The authorities are conclusive on this. We need only cite the clear expression of the rule by Judge Gantt in Hamlin v. Abell, 120 Mo. 188 (198): "If an agent would bind only his principal, it is his duty to disclose him. It is in his power always to do this, and when he fails to do so, it must be taken that he intends to bind himself."

C. O Tichenor for respondent.

(1) The money which was invested in this land was the money of Mrs. Smith; not one cent of it belonged to Merrill, yet appellant takes the strange position that this fact should not be considered; that it makes no difference whose money went into it. Judge Sherwood says, in Shaw v. Shaw, 86 Mo. 598: "But aside from any question of fiduciary relations, the evidence is sufficient to establish a resulting trust in behalf of the plaintiff. Such trusts are not within the statute of frauds (R. S., sec. 2512; Groves v. Fulsome, 16 Mo. 543; Cason v. Cason, 28 Mo. 47), and parole evidence may, therefore, be used to establish them. It is true, such evidence must be well nigh conclusive in its character; but the main point, the controlling question in inquiries of this nature, is the ownership of the purchase money." (2) As a matter of law Oliphant was a trustee for Mrs. Smith and this he can not deny. A trustee can not disown the beneficiary. If he can do so, he can destroy the trust, for certain it is that if he is not the trustee for Mrs. Smith, he is not a trustee at all, but is the owner. (3) The declaration was no deed; Merrill got no title by it; he was not a purchaser; he had no interest in the land; it made no difference to him whether the incumbrance on it was paid or not; more than this had he paid the money, he could have got no title, for if the trustee had made him a deed of Mrs. Smith's interest, he would have violated his trust by so doing. Oliphant has never even offered to convey; indeed it is not known whether he is in condition to do so. Olmstead v. Smith, 87 Mo. 602. And we call attention to the fact that there was no need for these declarations of trust, as the little books issued at the time of the purchase were such.

Burgess, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

[For the main facts governing this case, see Porter v. Woods, ante, p. 539.]

Burgess J.

This case grew out of the same transaction as did the preceding case of Porter et al. v. Woods, decided at the present term, and reported in this volume at page 539, and the facts are very much the same, the only substantial difference being in the amount involved, and in this case the defendant claims to have been acting throughout the entire transaction as the agent of one Mrs. Augusta S. Smith, with the knowledge of W. S. Woods of the firm of Woods, Mellier & Co., and Robert N. Oliphant, who took the title, and executed the declaration of trust sued upon. He disclaims any interest in the property. The Woods case is decisive of this upon all questions involved in this litigation with the exception of the personal liability of defendant on the assumption clause in the declaration of trust.

It is well settled that when an agent contracts with third parties in his own name, and does not disclose his principal he is personally liable upon the contract. McClellan & Hillyer v. Parker, 27 Mo. 162; 1 Am. and Eng. Ency. of Law, 402. If the agent would avoid being personally responsible he must disclose his principal at the time of, or before, entering into the contract.

In this case the evidence showed that Will S. Woods knew that defendant was acting as agent of Mrs. Smith in the purchase of the property, although all business transactions in regard thereto were in his own name, but it did not show that either Oliphant or Moore knew that he was the agent of Mrs. Smith, or that he was acting in that capacity. He was one of the syndicate that purchased the property, and received the rents for some years thereafter; he paid part...