Snyder v. Cowan

• Decision Date: 27 February 1894
• Parties: SNYDER v. COWAN.
• Court: Missouri Supreme Court

25 S.W. 382

120 Mo. 389

SNYDER v. COWAN.

Supreme Court of Missouri, Division No. 2.

February 27, 1894.

CONDEMNATION PROCEEDINGS — MONEY PAID TO CLERK — INTEREST.

Const. art. 2, § 21, provides that, till compensation for condemned property, to be ascertained by commissioners, is paid to the owner or into court for him, the property shall not be disturbed. Rev. St. § 2736, provides that the condemning company shall pay to the clerk the amount ascertained for the party in whose favor damages have been assessed, and that then it may hold the condemned property. Section 2738 provides for a review of the question of damages on exceptions by either party, but that, notwithstanding the exceptions, the

company may proceed to build, and subsequent proceedings shall only affect the amount of compensation. Held that, on the company's paying to the clerk the amount awarded by the commissioners, it became the property of the owner, so that he was entitled to the interest on it received by the clerk, though the owner refused to accept the amount awarded, and by subsequent proceeding had his award increased.

Appeal from circuit court, Buchanan county; A. M. Woodson, Judge.

Action by Frederick B. Snyder against Samuel D. Cowan. From a judgment for defendant, plaintiff appealed to the court of appeals, which reversed the judgment. This case is now certified to this court. Judgment of court of appeals affirmed.

B. R. Vineyard, for appellant. Hall & Pike, for respondent.

BURGESS, J.

This suit was brought to recover of defendant $723.50, received by him as interest on money deposited with him, as clerk of the circuit court, for the use and benefit of plaintiff. Plaintiff was the owner of certain lots in the city of St. Joseph, over which the St. Joseph & Iowa Railroad sought to condemn a right of way, and, being unable to agree as to the compensation to be allowed, the railroad company instituted proceedings for that purpose. Commissioners who were duly appointed assessed plaintiff's damages at $9,200, which the railroad company paid to the defendant, as clerk, for him. He declined to accept the money, and on December 8, 1888, filed in the office of said clerk his written exceptions to the report of the commissioners. The court then ordered an appraisement before a jury, which awarded plaintiff the sum of $14,000, and judgment was rendered accordingly. From that judgment the railroad company appealed to this court, where it was subsequently affirmed.¹ Thereafter the railroad company paid to the defendant, as clerk, a sum of money, which, together with the amount theretofore paid, amounted to $14,910, being the amount of said judgment and interest thereon from the date of its rendition to the time of its payment at 6 per cent. per annum. Thereafter the defendant deposited the money in the bank, and for the use thereof received, in the way of interest, the amount here in controversy, $723.50, which plaintiff claims was received by defendant on his (plaintiff's) money, as and for his use and benefit. A general demurrer to the petition was interposed by the defendant, which was sustained, and judgment rendered thereon in favor of defendant, and against plaintiff, who appealed to the Kansas City court of appeals, where the judgment of the court below was reversed, (50 Mo. App. 430,) but, because of the dissent of one member of that court, the cause was certified to this.

It was admitted by the counsel for defendant upon the argument of this cause in this court that about the time of, or shortly after, the report of the commissioners and the payment of the $9,200 to the defendant for plaintiff, the railroad company took possession of the right of way condemned, and built its road thereon. If the money in controversy was received by defendant as interest for the use of money which belonged to plaintiff, then plaintiff is entitled to recover in this action, and the judgment of the court of appeals reversing that of the circuit court should be affirmed. Defendant held the funds in the capacity of trustee, not otherwise; and if, by hiring it out, or making use of it in any manner, he realized a profit therefrom, he holds such profit for the use and benefit of the person to whom the principal sum belongs. Cruce v. Cruce, 81 Mo. 676; Bent v. Priest, 86 Mo. 475; Bassett v. Kinney, 24 Conn. 267. It is against the policy of the law for a trustee to speculate on a trust fund in his hands, and, if he does, he will be required to account for all profits of whatever kind he may thus realize. Defendant contends that, as plaintiff refused to accept the compensation allowed him by the commissioners, but filed exceptions to their report, and was thereafter awarded a trial before a jury for the ascertainment of his damages, the money paid to him by the railroad company in conformity with...