Scott v. Ferguson
| Decision Date | 01 July 1911 |
| Parties | ALEXANDER O. SCOTT v. WILLIAM FERGUSON and GEORGE WHEELER, Partners, Doing Business Under the Firm Name of FERGUSON & WHEELER, Appellants |
| Court | Missouri Supreme Court |
Appeal from Mississippi Circuit Court. -- Hon. Henry C. Riley Judge.
Affirmed.
James F. Green and Ernest A. Green for appellants; William N Barron of counsel.
(1) To create a resulting trust, the purchase money must be paid by the cestui que trust, and the title taken in the name of the alleged trustee. 15 Am. & Eng. Ency. Law, 1132-1137; Shaw v. Shaw, 86 Mo. 598; Sill v. West, 125 Mo. 631; Richardson v. Champion, 143 Mo. 538; Hardware Co. v. Horn, 146 Mo. 129; McMurray v. McMurray, 180 Mo. 526; Kelly v. Johnson, 28 Mo. 251; Crawley v. Crafton, 193 Mo. 421; Coates v Woodworth, 13 Ill. 656; Pinnock v. Clough, 16 Vt. 504; Reed v. Sperry, 193 Mo. 167. (2) The plaintiff sued to declare a resulting trust, but was permitted by the trial court to try, against the objection and exception of the defendants, urged throughout the trial, a case in specific performance, of which the defendants had no notice. A party cannot sue upon one cause of action and recover upon another. Reed v. Bott, 100 Mo. 62; Bank v. Assurance Co., 106 Mo.App. 625; Bank v. Armstrong, 62 Mo. 65; Lenox v. Harrison, 88 Mo. 495. (3) The court erred in taxing any part of the costs against the defendants. Schumacher v. Mehlberg, 96 Mo.App. 598; Turner v. Johnson, 95 Mo. 431.
David W. Hill for respondent.
(1) The petition is broad enough to cover a resulting trust or for specific performance, or both, and it was, therefore, immaterial who signed the purchase money notes. The slight variation between the allegation in the pleadings and the proof is wholly immaterial. Sec. 655, R. S. 1899; Sec. 659, R. S. 1899. (2) Plaintiff's petition states a cause of action for specific performance. Sec. 592, R. S. 1899; Pomeroy v. Fullerton, 113 Mo. 440; Waddington v. Lane, 202 Mo. 387; Eggert v. Dry Goods Co., 102 Mo. 512; Bales v. Roberts, 189 Mo. 49. (3) Defendants now, in this court, insist, however feebly so, that plaintiff's petition and evidence to sustain the same were all within the Statute of Frauds. In reply to that, plaintiff suggests that this case must be tried in this court on the same theory as in the court below. (4) It would be unfair and a gross injustice to permit the defendants to hold the title to the land in controversy after the plaintiff, as the owner, has been in possession of the land for ten years, and has fully paid for it; and too, the Statute of Frauds cannot be invoked to uphold a fraud. Asbury v. Hicklin, 181 Mo. 673. (5) The defendants, time after time, refused to settle with the plaintiff, refused to let him see their books and on two occasions plaintiff was cursed out of defendants' office, and Wheeler told plaintiff to sue; plaintiff had to sue and did sue and being compelled to do so, as a result of the actions of the defendants, and having been awarded a judgment as pleaded, the costs in this case were properly assessed against the defendants. Sec. 1547, R. S. 1899; Sec. 1552, R. S. 1899; Bender v. Zimmerman, 135 Mo. 53.
This is a suit instituted in the circuit court of Ripley county by the respondent, Alexander O. Scott, against the appellants, William Ferguson and George B. Wheeler, partners, doing business under the firm name of Ferguson and Wheeler. The object and purpose of the suit was to have this court declare the defendants holders of the legal title to the real estate described in the petition, as trustees of a resulting trust for the benefit of the plaintiff. On the application of the plaintiff the venue of the case was changed to the circuit court of Mississippi county, where on a trial of the issues the circuit court rendered a decree in favor of the plaintiff, from which the defendants appealed to this court.
The petition alleged substantially the following facts: That on the 10th day of June, 1899, the Howard heirs, whose names are fully set out in the petition, were the owners and in possession of the southwest quarter of section twenty-six and the northeast quarter of section twenty-five, in township twenty-three north, of range four east, in Ripley county, this State; that on or about the said 10th day of June, 1899, plaintiff contracted with the owners for the purchase of said land, for the price and consideration of two thousand dollars, with the understanding and agreement that the legal title should be conveyed by the said owners to the defendants Ferguson and Wheeler, in trust for the plaintiff; that the legal title to said real estate, pursuant to said agreement, was on the said 10th day of June conveyed to the defendants, in trust for plaintiff; that the consideration for the said real estate was wholly paid by the plaintiff and that the legal title thereto was conveyed to the defendants to secure them as sureties on plaintiff's promissory notes for the sum of two thousand dollars borrowed to pay for said land; that the defendants agreed that they would convey said real estate to plaintiff as soon as said promissory notes were paid; that said notes and the interest thereon have been fully paid by the plaintiff and that plaintiff has demanded that defendants convey to him the legal title to said real estate, but that the defendants have failed and refused and still refuse to convey said title as requested and as they were in duty bound to do; that ever since the conveyance of said lands to defendants, plaintiff has been and is now in possession thereof and is entitled to the conveyance of the legal title to him by the defendants. The prayer of the petition is that the court declare the defendants holders of the legal title as trustees of a resulting trust for the benefit of plaintiff and require the defendants to convey the legal title to said real estate to the plaintiff, and for general relief.
The answer, after an admission of the partnership, was a general denial.
It was adjudged by the circuit court that plaintiff was entitled to have the legal title to the land vested in him upon the payment to defendants of $ 784.90 due them on open account.
There is substantial agreement in the evidence as to the material facts of this case concerning the contract of purchase of the land in controversy. The plaintiff owned a saw-mill and was engaged in the manufacture of lumber. The defendants were merchants and lumber dealers at Poplar Bluff, Missouri. Plaintiff had been dealing with defendants in lumber transactions for a period of several years preceding the year 1899. In June, 1899, plaintiff negotiated for the purchase of the land in controversy, with the owners thereof, and finally agreed upon the purchase price, which was the sum of two thousand dollars. Plaintiff did not have the money to pay for the land and made an arrangement with the defendants by which they were to assist him in borrowing the money and the legal title was to be conveyed to the defendants, to be held by them as security for the purchase money advanced. The land was purchased and the title by warranty deeds was conveyed to defendants. Plaintiff at once went upon the land, claimed it as owner and began improving it and cutting, sawing and marketing the timber thereon. And he so continued to occupy the land as owner and was so in possession of it at the time of the filing of this suit. As part of the arrangement between the plaintiff and the defendants for the purchase of the land it was agreed that the defendants were to furnish money as needed by plaintiff in carrying on the saw-mill business and plaintiff was to market all the lumber cut and sawed from this land through defendants. Defendants were to receive a commission of one dollar per thousand feet for the lumber so marketed by them. An account with plaintiff was at once opened upon the defendants' books, which account was introduced in evidence. This account showed that the defendants paid the notes and charged the plaintiff with the full amount so paid and plaintiff was given credit for the sums due him for lumber sold to defendants in accordance with the agreement.
In the year 1900 the defendants heard that plaintiff was selling part of the lumber cut from the land so purchased to other dealers and they notified plaintiff by letter that they would furnish him no more money and would take no more of his lumber. Plaintiff denied that he had sold any of the lumber from this land to any person other than the defendants, until after they had notified him they would no longer continue to furnish him money and take his lumber in...
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