Rector, Etc., of Mt. Calvary Church v. Albers

• Decision Date: 18 March 1903
• Citation: 73 S.W. 508,174 Mo. 331
• Parties: RECTOR, ETC., OF MT. CALVARY CHURCH v. ALBERS.
• Court: Missouri Supreme Court

73 S.W. 508

174 Mo. 331

RECTOR, ETC., OF MT. CALVARY CHURCH v. ALBERS.

Supreme Court of Missouri, Division No. 1.

March 18, 1903.

TRUST FUND—TRUSTEES—EXPRESS TRUST—GUARANTY—CONTRACT—EVIDENCE —REVIEW—REFEREE.

1. Money contributed to plaintiff, a church, was kept separate from the ordinary revenues, and treated by the vestry as a building fund for a new church, and afterwards turned over to defendant, as treasurer of the building fund. Other donations, paid to a member of the vestry, were by him given to defendant. There was no evidence that any contributor ever gave defendant authority to hold or withhold the money as a trust fund. Held, that defendant was not a trustee, and he was guilty of a violation of his legal duty when he refused to turn the fund over to plaintiff.

2. Defendant claimed that money in his hands as treasurer of the building fund of a church was a trust fund, which could only be used for the purpose of constructing a new church. The evidence showed that at various times he had paid out nearly one-fourth of the fund, on orders from the vestry, for general church purposes, other than for the purpose of the alleged trust. Held, that defendant was estopped to claim it to be a trust fund.

3. Parol evidence is not admissible to establish an express trust, under Rev. St. 1899, § 3416, providing that "all grants and assignments of any trust or confidence shall be in writing, signed by the party granting or assigning the same, or by his or her last will, in writing, or else they shall be void."

4. Evidence examined, and held not to establish defendant's claim that he was to have the use of money loaned him by plaintiff "until such time as the same might be required to be paid out for the construction of a church building" by plaintiff.

5. Conclusions of a referee on questions of fact, approved by the trial court, will not be disturbed where the evidence is conflicting.

6. The vestry of a church agreed to let defendant use money in his hands as treasurer of its building fund, in consideration of his paying interest thereon, but no agreement was made as to how long he should have the use of it. At the bottom of a report subsequently made by him as such treasurer was the following guaranty, signed by a third party: "I guaranty that [defendant] will properly account for and pay over any money he may receive or have, belonging to the Mount Calvary building fund, for bills incurred in building new church, when approved by the vestry." This guaranty was accepted by the vestry in lieu of the bond originally required of defendant. Held not to constitute, as a matter of law, a contract between the church and defendant that he should retain and use the money until such time as it might be required to be paid out for the construction of a new church building.

Appeal from St. Louis Circuit Court.

Action by the rector, etc., of Mt. Calvary Church of St. Louis against Claus H. Albers. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action to recover $7,772.13, with 5 per cent. interest. The answer admits that the amount claimed is correct, but sets up two specific defenses, to wit: First, that the plaintiff loaned him the money, he to pay 5 per cent. interest per annum for the use, "until such time as the same might be required to be paid out for the construction of a church building for plaintiff," and that the plaintiff is not ready or able to construct such a building, and therefore the debt is not due; and, second, that the fund was contributed by various persons for the construction of a new church, and was deposited with him, "upon the terms and conditions hereinbefore stated," by the plaintiff, "with the consent and approval of the contributors to said fund, and that defendant thereby became a trustee as to such fund for both the plaintiff and said contributors, and, as such trustee, is not authorized to pay over said sum, except in payment for the construction of a new church building," and that the plaintiff has no intention of so applying said money, but intends to misapply it to other purposes. The answer then alleges a willingness "to pay over the same whenever it is needed for the purpose for which it was subscribed," and in the meantime to give any security therefor that the court may require. The reply denies that the fund was donated to the church to be used only for the construction of a new church, but alleges that its former church was destroyed by the cyclone in May, 1896, and that it owns a lot of ground at another place, on which there is a church building, but says it is insufficient and unsuitable for its uses, and that the plaintiff is ready and able to commence the erection of a new church on said lot, but is prevented from so doing because the defendant withholds its said money, which it alleges that the defendant does because of his factious opposition to the rector, and with the intent to force the congregation to discharge the rector. The reply then denies all the allegations of the answer not specially admitted. By consent of parties the whole case was referred to a referee, who found all the issues of fact for the plaintiff, and recommended a judgment as prayed. The trial court overruled the exceptions to the referee's report, and entered judgment for the plaintiff for $7,969.63; being the admitted amount in suit, with 5 per cent. interest added. The defendant appealed.

Jos. S. Laurie, for appellant T. K. Skinker, for respondent.

MARSHALL, J. (after stating the facts).

The case made is this: The plaintiff is a religious corporation organized under the laws of this state. The defendant was for many years a member of the vestry. Prior to the cyclone the plaintiff had two places of worship—a church on the corner of Lafayette and Jefferson avenues, and a chapel on Grand avenue at the terminus of Lafayette avenue. The church was incumbered by a mortgage. The church was owned by a corporation known as the Mt. Calvary Building Association, which had a capital stock of 200 shares, of which the defendant owned 95 shares, Joseph Franklin and George M. Wright owned 50 shares, and the plaintiff owned the balance. The cyclone destroyed the church. Thereafter, principally through the personal efforts of the rector, various persons contributed various sums of money to the church, which was kept separate from the ordinary revenues of the church, and treated by the vestry as the building fund. On July 27, 1896, the defendant was appointed by the vestry treasurer of the building fund, and ordered to give bond in the sum of $10,000, with a trust company as surety; the vestry to pay the expense of securing the bond. On September 7, 1896, the general treasurer of the church turned over to the defendant, the treasurer of the building fund, the contributions that had been received, amounting to $2,761.96. On April 13, 1897, the defendant, as treasurer of the building fund, reported to the vestry that he had received $3,769.75, and had paid out on orders of the vestry for various purposes, other than for the erection of a new church, the sum of $1,057.60, leaving a balance in his hands of $2,712.15. He had never given bond as such treasurer, but when he made this report there was written at the bottom of the report the following guaranty: "I guaranty that C. H. Albers will properly account for and pay over any money he may receive or have, belonging to the Mount Calvary building fund, for bills incurred in building new church, when approved by the vestry of Mount Calvary Church. [Signed] J. W. Kaufman." This guaranty was accepted by the vestry in lieu of the bond originally required. In July, 1897, the mortgage on the church was foreclosed. Messrs. Franklin and Wright donated to the plaintiff their share of the proceeds of the sale after paying the mortgage, amounting to $1,617.77, and the share of the plaintiff in such excess amounted to $2,794.33. These sums, amounting to $4,412.10, were turned over to the defendant, as treasurer of the building fund. The fund in controversy was therefore made up of contributions, the donation of Messrs. Franklin and Wright, and the share of the plaintiff in the excess aforesaid. There is absolutely no evidence in the record that any of the contributors limited the use of their contributions to the erection of a church, nor that any of them constituted the defendant their trustee to hold the contributions for any such purpose. Messrs. Franklin and Wright testified that they "donated it [their donation] into the fund for the benefit of the church—the building fund of the new church—something of that kind." But there is no evidence that they constituted the defendant a trustee of their donations, nor that they even had any dealings with the defendant in that matter in any way. On the contrary, their donations were turned over to Mr. Lipman, who was acting as the agent of, and was a member of, the vestry, in looking after the interest of the church in the sale under the mortgage; and he turned their donations, as well as the plaintiff's share of such excess, over to the defendant, as the treasurer of the building fund, and properly reported his action in this regard to the vestry on July 6, 1897.

At various times prior to April 3, 1899, the vestry ordered the defendant—once or twice on his own motion—to pay out of the building fund various sums, amounting in all to $2,259.41, for purposes other than for building a new church, and the defendant obeyed the orders and paid the money. At some time—the date is not altogether clear, but at any rate it was before April 13, 1897, when the Kaufman guaranty was delivered to the vestry—the defendant reported to the vestry that he could not get more than 4 per cent. interest for the use of the money, but that the banks charged him 5 per cent. for money when he borrowed from them, and if they would let him use the money he would pay 5 per cent....