Suhre v. Busch

• Citation: 123 S.W.2d 8,343 Mo. 679
• Decision Date: 20 December 1938
• Docket Number: 35529
• Parties: Lilly Anheuser Suhre, Appellant, v. Adolphus Busch III and August A. Busch, Jr., Executors of the Estate of August A. Busch
• Court: United States State Supreme Court of Missouri

123 S.W.2d 8

343 Mo. 679

Lilly Anheuser Suhre, Appellant, v. Adolphus Busch III and August A. Busch, Jr., Executors of the Estate of August A. Busch

No. 35529

Supreme Court of Missouri

December 20, 1938

Appeal from Circuit Court of City of St. Louis; Hon. Frank C O'Malley, Judge.

Affirmed.

Buder & Buder and G. A. Buder, Jr., for appellant.

(1) In order to give rise to a constructive trust it is not essential that an actual fiduciary relationship exist or that there be actual fraud. Calloway Bank v. Ellis, 238 S.W. 847. (a) In an action based on fraud it is not necessary that the word "fraud" should appear in the pleading. All that is required is that sufficient specific facts be stated which by reasonable intendment or fair implication set forth the false representations. Finley v. Williams, 29 S.W.2d 104; State ex rel. Met. Life Ins. Co. v. Allen, 310 Mo. 383, 276 S.W. 879; Dingle v. Pollick, 49 Mo.App. 484. (b) No variance between an allegation in a pleading and the proof is material unless it has actually misled the adverse party to his prejudice, which fact can be established only by an affidavit. Upon the filing of such an affidavit an amendment may be made upon such terms as the court shall deem just. Secs. 817, 818, R. S. 1929; Bigham v. Tinsley, 149 Mo.App. 480; Collins v Lindsay, 25 S.W.2d 89; Smith v. Atlanta Life Ins Co., 102 S.W.2d 758; Kallauner v. Cent. Mut. Ins. Assn., 70 S.W.2d 135; Furrer v. Haupt, 49 S.W.2d 55; Walton v. Carlisle, 313 Mo. 281, 281 S.W. 406; Bammert v. Kenefick, 261 S.W. 82; Porter v. Equitable Life Assur. Soc., 71 S.W.2d 776; Ingwersen v. St. L. & H. Ry. Co., 116 Mo.App. 146. (c) Where the sufficiency of a petition is not attacked before trial all reasonable inferences and intendments are to be allowed in its favor. If the defendant is advised with reasonable certainty as to the cause of action he is called on to meet, his substantial rights are not affected, and the court will disregard alleged defects in the petition. Sec. 821, R. S. 1929; Southern Real Estate & Financial Co. v. Bankers' Surety Co., 184 S.W. 1033; Brown & Son Contracting Co. v. Bambrick Bros. Const. Co., 150 Mo.App. 511. (d) The courts are very liberal in permitting amendments conforming the pleading to the facts proved, where the amendment does not substantially change the cause of action or defense, and such amendments are permitted even on appeal. Sec. 819, R. S. 1929; Walk v. St. Louis Can Co., 28 S.W.2d 394; Sawyer v. Wabash Ry. Co., 156 Mo. 476; Porter v. Equitable Life Assur. Soc., 71 S.W.2d 776; Tebeau v. Ridge, 261 Mo. 558; Oliver v. Wilkey, 62 S.W.2d 777; State ex rel. First Natl. Bank v. Bourne, 151 Mo.App. 119; Smith v. Harbison-Walker Refractories Co., 100 S.W.2d 912; Patzman v. Howey, 100 S.W.2d 858; Haseltine v. Smith, 154 Mo. 413; Schmidt v. Kansas City Distilling Co., 90 Mo. 295; Woodson v. Met. St. Ry. Co., 224 Mo. 708. (2) A constructive trust is a fiction of equity which is founded in fraud, either actual or constructive, or something tantamount thereto, and not upon contract. It is a form of relief which is flexible and adaptable, and therefore not dependent upon any rigid or unyielding formula. Consequently, wherever property has been obtained through fraud, misrepresentations, concealment, undue influence, duress or other unconscionable advantage, a constructive trust arises by operation of law, and even contrary to the intention of the parties, in order that the one who has acted unfairly may be held to account by the one who is equitably entitled to the property. 3 Pomeroy on Equity Jurisprudence (4 Ed.), secs. 1044, 1053, pp. 2372-3, 2404-5; 26 R. C. L., sec. 78, p. 1232; 39 Cyc., p. 69; 65 C. J. 223; 1 Perry on Trusts & Trustees (7 Ed.), sec. 166, pp. 267-8; 3 Bogert on Trusts & Trustees, sec. 471, pp. 451-3; Janssen v. Christian, 57 S.W.2d 695; Soehngen v. Jantzen, 186 S.W. 1110; Miller v. Belville, 126 A. 592; Newton v. Taylor, 32 Ohio St. 413; Beatty v. Guggenheim Exploration Co., 225 N.Y. 389, 122 N.E. 380; Fox v. Fox, 77 Neb. 601, 110 N.W. 304; Larmon v. Knight, 140 Ill. 232, 30 N.E. 318; Ahrens v. Jones, 169 N.Y. 555, 62 N.E. 666. (3) The evidence in this case shows clearly that W. Fred Anheuser, in his negotiations with Mark C. Steinberg for the stock in question, acted as the agent of August A. Busch. (a) The existence of agency need not be established by direct and positive proof, but may be inferred or deduced from facts and circumstances in evidence. Meux v. Haller, 179 Mo.App. 473; Platte Valley Drain. Dist. v. Nat. Surety Co., 221 Mo.App. 907, 295 S.W. 1088; Norton v. Bull, 43 Mo. 115; McCloud v. Western Union Telegraph Co., 170 Mo.App. 630. (4) This court will take judicial notice of matters appearing in the record of other cases before it. Bushman v. Barlow, 321 Mo. 1062, 15 S.W.2d 332; State ex rel. Ponath v. Hamilton, 240 S.W. 449; Custer v. Kroeger, 313 Mo. 141, 280 S.W.2d 1037; State ex rel. Union E. L. & P. Co. v. Pub. Serv. Comm., 333 Mo. 435, 62 S.W.2d 746.

Nagel, Kirby, Orrick & Shepley and Daniel N. Kirby for respondents.

(1) Both parties tried this case below with knowledge and acquiescence, assuming: that plaintiff contended her petition is a suit to establish and enforce a constructive trust ex maleficio, and defendants contended it is a suit for specific performance of a disputed oral agreement alleged to have been made between Anheuser and Steinberg for the benefit of plaintiff as third party benficiary, and that the defenses pleaded in the answer would be made, and they were made, under both of said theories concerning the nature of the suit. The case was briefed, argued, submitted and decided on the above basis; the trial court held the suit to be for specific performance, but considered and decided the case upon the evidence, upon both theories, and held that plaintiff could not recover under either theory. Therefore the case should be reviewed here on the same basis. No amendment of the petition should be allowed. (a) The true nature of this suit, as disclosed by the amended petition on which the case was tried, is for the specific performance of an alleged oral agreement or promise claimed to have been made by August A. Busch to Mark Steinberg for the benefit of a third person, namely, the plaintiff, Mrs. Suhre; it is not to establish and enforce a constructive trust ex maleficio. (b) The petition analyzed. (c) The statutes require that the petition disclose the precise nature of the cause of action. R. S. 1929, secs. 764, 785; Sidway v. Mo. Land Co., 163 Mo. 374; State ex rel. v. Horton Land Co., 161 Mo. 671; Mayberry v. Clark, 317 Mo. 448; O'Donnell v. B. & O. Railroad, 324 Mo. 1111; Cornet v. Cornet, 248 Mo. 211. (d) The essentials of constructive trusts, ex maleficio, in contrast to contracts for third party beneficiaries: The first essential of a constructive trust is that fraud, actual or constructive, be alleged and proved. Ferguson v. Robinson, 258 Mo. 131; Gates Hotel Co. v. Davis Real Estate Co., 331 Mo. 103; Parker v. Blakeley, 338 Mo. 1207; Thierry v. Thierry, 298 Mo. 49; 1 American Law Institute's Restatement of Trusts, sec. 1 (e), pp. 5-6. Another essential to a constructive-trust suit is that the plaintiff have some kind of an equitable interest in respect of the property. American Law Institute's Restatement of Restitution, Part II, Comments a, d, sec. 160, pp. 641, 643-644; American Law Institute's Restatement of Restitution, Comments a, c, sec. 169, pp. 687-688; American Law Institute's Restatement of Restitution, sec. 133, p. 546; 65 C. J., sec. 220, pp. 462, 464; 3 Pomeroy on Equity Jurisprudence (4 Ed.), sec. 1053, pp. 2404-5. Fraud must be pleaded in constructive trust cases. Finley v. Williams, 329 Mo. 688, 29 S.W.2d 104; Sidway v. Mo. Land Co., 163 Mo. 374. (e) Next, concerning third-party contracts. 1 American Law Institute's Restatement of Trusts, secs. 13, 14, pp. 49-50, 51-52. (f) Specific performance suits; essentials. The petition here completely fails to allege fraud, either actual or constructive, as against August A. Busch. Steinberg knew that appellant had no equity to protect. Long v. Conrad, 42 S.W.2d 361. The petition seeks ineffectively to plead a suit for the specific performance of a contract for the benefit of a third party. Answers to appellant's contentions concerning the nature of this suit. The court should deny appellant's request for leave to amend, and should decide the case on the merits and upon the same basis as that adopted by the circuit court with the assent of both parties. R. S. 1929, sec. 822; Stewart v. Stringer, 45 Mo. 116; Coerver v. Crescent Lead & Zinc Corp., 315 Mo. 292; 4 C. J., pp. 723-724, sec. 2640; Mann v. Bank of Greenfield, 323 Mo. 1011; Williams v. Walker, 333 Mo. 329; Barlow v. Scott, 85 S.W.2d 518; Solomon v. Moberly L. & P. Co., 303 Mo. 634; Harwood v. Toms, 130 Mo. 241; Long v. Lackawanna Coal & Iron Co., 233 Mo. 732. (2) Plaintiff had no equity in the stock and therefore could not have established a constructive trust ex maleficio. (2) Even if Anheuser, for Busch, had fraudulently made the representations and purchase alleged in the petition (which respondents deny), plaintiff could not have recovered upon the theory of a constructive trust ex maleficio, because she had no equity in the stock. She was not deprived of anything that she owned and that could have become the subject matter (corpus) of such a trust. 1 Perry on Trusts & Trustees (7 Ed.), sec. 215, p. 378; Janssen v. Christian, 57 S.W.2d 692; Johnson v. Reilly, 57 A. 1049; Fishbeck v. Gross, 112 Ill. 208. (3) The evidence failed completely to prove the constructive trust ex maleficio, on which appellant seeks to recover. It also failed to sustain a suit to specifically perform the agreement alleged in the petition. Reed v. Cooke, ...