O'Reilly v. Miller

• Decision Date: 31 March 1873
• Citation: 52 Mo. 210
• Parties: WM. O'REILLY, Appellant, v. ELLSWORTH MILLER, Respondent.
• Court: Missouri Supreme Court

52 Mo. 210

WM. O'REILLY, Appellant,

v.ELLSWORTH MILLER, Respondent.

Supreme Court of Missouri.

March Term, 1873.

Appeal from St. Louis Circuit Court.

H. A. Clover, for Appellant.

Bakewell & Farish, for Respondent.

The beneficiary was not a necessary party defendant to the injunction suit; the trustee fully represented him and had power to enforce any claim for damage. (Ashton vs. Atlantic Bank, 3 Allen, 217; N. J. Franklinite Co. vs. Ames, 1 Beasley, 607; Shaw vs. Norfolk Co. R. Rd., 5 Gray, 170, 171.)

If the release be made by the trustee or other party having the legal interest, it can be set aside if to the prejudice of the party beneficially interested and made without his consent. (2 Parsons Cont., p. 123, note t, and p. 221 and note; 1 Parsons Cont., 22 and note.)

ADAMS, Judge, delivered the opinion of the court.

The facts of this case as presented by the record are, that the defendant, Miller, was trustee in a deed of trust to secure the payment of several promissory notes, of which Frederick Saugrain was the holder as assignee thereof. The deed of trust covered lots of ground in the city of St. Louis, and was executed by the plaintiff, O'Reilly, who had given the notes.

Saugrain, the beneficiary, had caused the trustee, Miller, to advertise the lots for sale to pay the notes, and this suit was commenced to restrain the proceedings of the trustee and to enjoin the collection of the notes in that way, on the alleged ground that the notes had been paid off. A temporary injunction was awarded, and the usual injunction bond executed. On the trial of the case the injunction was dissolved, and thereupon, in the name of Miller, the trustee, the beneficiary filed a motion to have the damages assessed growing out of the injunction. On the trial of this motion evidence was given of the damages sustained by Saugrain the beneficiary, and the proof showed that he had sustained damages to the amount of $114.00 by reason of the injunction, and thereupon plaintiff read in evidence a release which had been given by the trustee, Miller, for all damages occasioned by the injunction; which release had been given without the consent of Saugrain, the beneficiary, and for the consideration of ten dollars. The case being submitted without a jury, the Court disregarded this release and assessed the damages at $114.00, and gave judgment for that amount on the injunction bond against the plaintiff and his sureties. After an ineffectual motion for a new trial by the...