Reilly v. Cullen
| Decision Date | 22 December 1900 |
| Citation | 60 S.W. 126,159 Mo. 322 |
| Parties | REILLY v. CULLEN, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. H. D. Wood, Judge.
Affirmed.
Stewart Cunningham & Eliot for appellant.
(1) The contract in question is within the statute of frauds as affecting an interest in lands. It is also within the statute touching trusts. R. S. 1889, secs. 3418 and 3416. (2) A renewal, modification or extension of a contract is as much within the statute as the original contract. Rucker v Harrington, 52 Mo.App. 431; Curle's Heirs v Eddy, 24 Mo. 117. (3) Part performance does not take a contract out of the statute of frauds in an action at law. Atwood's Adm'r v. Fox, 30 Mo. 499; 8 Am. and Eng. Ency. of Law (1 Ed.), p. 739. (4) Entire performance by one party does not take the case out of the statute in a legal action, unless the performance is of that side of the contract touched by the statute, leaving only executory matters not within the evils to be prevented. Brown on Statute of Frauds, secs. 116 and 117; Pitcher v. Wilson, 5 Mo. 47; Townsend v. Hawkins, 45 Mo. 286; Devore v. Devore, 138 Mo. 181. (5) Even in equity the performance which takes the case out of the statute must be of the very contract in question, and not of an earlier or collateral matter. Emmel v. Hayes, 102 Mo. 186; Lydick v. Holland, 83 Mo. 707. (6) An express trust is always within the statute at law or in equity. Where a trust has been declared in writing and there is no charge of fraud or mistake, even equity will refuse to modify it by parol evidence. Perry on Trusts, secs. 76, 83, 162; Miltenberger v. Morrison, 39 Mo. 71; Rodgers v. Ramey, 137 Mo. 598. (7) The policy of this State is to uphold the statute of frauds. Ringer v. Holtzclaw, 112 Mo. 519; Weil v. Willard, 55 Mo.App. 376. (8) If the answer denies the contract, the statute of frauds is properly raised at the trial by objection to the evidence. Boyd v. Paul, 125 Mo. 9; Tombs v. Basye, 65 Mo.App. 30; Withnell v. Petzold, 104 Mo. 412. (9) A court of law will not entertain a suit for damages for an alleged breach of trust cognizable only in equity. The jurisdiction in equity is exclusive. Perry on Trusts, sec. 17; Pomeroy on Eq. Jur., sec. 137.
H. A. Loevy for respondent.
(1) Even if respondent had taken a nonsuit without any instruction that he could not recover having been given by the court, it was not necessary that such instruction should have been given to entitle respondent to have the action of the court reviewed. The rule is when, during the trial, the court decides questions adversely to plaintiff which entirely dispose of plaintiff's case, he need not wait for the instruction, but can take a nonsuit then. State to use v. Smith, 65 Mo. 469; Roeder v. Shryock, 61 Mo.App. 487. (2) The statute of frauds has no application to this case. 63 Mo. 464; 60 Mo.App. 546; Carrick v. Mincke, 60 Mo.App. 142. (3) Where there is full performance by the plaintiff, he may recover on the contract itself, and this in a court of law. Marks v. Davis, 72 Mo.App. 562; Bless v. Jenkins, 129 Mo. 657; Andrews v. Broughton, 78 Mo.App. 190. (4) Where property has been conveyed, its value may be recovered by the grantor. Dix v. Marcy, 116 Mass. 416.
Plaintiff sues to recover a balance alleged to be due him on account growing out of a real estate transaction between him and defendant. The petition states that plaintiff, being the owner of the land in question, and it being under a deed of trust for $ 6,000 liable at the date of the agreement in question to foreclosure on account of default in the payment of two interest notes for $ 180 each, and being indebted to defendant's firm in the sum of $ 374, entered into a written agreement with him as follows:
Upon which was indorsed the following: "It is agreed under contract on reverse side, to leave to the judgment of John J. Lane and D. J. Hayden the decision as to acceptance of any trade or sale of said property." Signed by the parties as above.
The petition further states that the agreement above mentioned was afterwards extended by consent of both parties for an additional period of sixty days, that the property was worth $ 12,000, that defendant had paid the two semiannual interest notes above mentioned, which, with what he before owed, made plaintiff's total indebtedness to defendant $ 614, besides costs of advertising, the precise amount of which plaintiff did not know; that defendant had collected rent for the premises from February 13 to May 17, 1897; that defendant, without notice to plaintiff and without the approval of Lane or Hayden, had, on the date last named, sold the property to one Diesing for $ 12,000 subject to the incumbrance of the $ 6,000 deed of trust above mentioned and the taxes for 1897, and had received the difference from Diesing, $ 6,000, in cash. By reason of which the petition alleges, plaintiff has been damaged to the extent of the difference between the price paid by Diesing and the reasonable market value of plaintiff's equity in said property, to-wit, $ 6,000, and also the rent plaintiff would otherwise have derived from three of the houses on said lot from February 18, 1897, about $ 400. Judgment is asked for $ 6,400, less the amount of credits to which defendant may be entitled.
The answer of defendant admits the written agreement, denies the alleged extension, also denies the alleged value of the property, avers that he sold it after the expiration of the sixty days for $ 7,600, and exhibits with his answer an account showing the disposition he has made of the proceeds.
When the cause came on for trial the plaintiff demanded a jury, defendant objected on the ground that it was a suit in equity, but the court ruled with the plaintiff that it was an action at law, and a jury was called.
Upon the plaintiff's first offer of evidence, defendant objected on the ground that the petition did not state a cause of action at law, but the court overruled the objection and the trial progressed.
Plaintiff introduced the written contract in evidence, and then undertook to prove a parol agreement to extend the period mentioned in the contract sixty days longer. The court upon objection of defendant excluded the evidence. In the discussion which followed the objection, the court ruled that the sixty days mentioned in the written agreement was an essential part of the contract and that the alleged extension of the period could be proven only by writing signed by the parties. Thereupon the plaintiff took a nonsuit with leave, and filed a motion to set the same aside, alleging as ground for the same the exclusion of the parol evidence offered, the giving of an instruction to the effect that plaintiff was not entitled to recover, and refusal of the court to submit the case to the jury. The court sustained the motion on the ground that "the court should have admitted parol evidence as to the contract in testimony." From this order the defendant appealed.
The first question presented to the trial court was, is this an action at law or a suit in equity? The plaintiff's contention was that it was an action at law, the defendant's that it was a suit in equity; the court ruled in favor of the plaintiff's contention. That was an erroneous conception of the case. The defendant's position on that question was correct; it is a suit in equity and not cognizable in a court of law. It is a suit to call a trustee to account for the proceeds of the trust property disposed of by him. Under certain conditions judgment may be had against a trustee in an action at law for the proceeds of trust property disposed of by him. The decisions of this court referred to by the learned counsel for the plaintiff in support of that proposition amply sustain it. [Dozier v. Jerman, 30 Mo. 216; Thornburg v. Jones, 36 Mo. 514; Railroad v. Green, 68 Mo. 169 at 177; Sherwood v. Saxton, 63 Mo. 78.] The plaintiff's theory of the case, pressed with effect in the trial court, was in the line of those decisions. But there is one feature that distinguishes this case from those and puts it outside of a court of law. The defendant, who is here sought to be adjudged a trustee, is, by the face of deed in question, a purchaser of the land for value, without condition, therefore, before he can be adjudged a trustee, the absolute deed must be decreed to be a mortgage. A court of law must take the deed for what it is on its face; it is only a court of equity that can transform an absolute deed into a mortgage.
The petition itself is not beyond criticism under the rules of good pleading (although it follows what seems to have become a not unusual practice) and if it had been demurred to on the statutory ground that it did not state facts constituting a cause of action, the demurrer should have been sustained. The statute requires the facts constituting the cause of action to be stated. By this is meant the ultimate facts as...
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