Supreme Lodge Knights of Pythias v. Dalzell

• Decision Date: 25 June 1920
• Citation: 223 S.W. 786,205 Mo.App. 207
• Parties: SUPREME LODGE KNIGHTS OF PYTHIAS, Respondent, v. BEN W. DALZELL, Appellant
• Court: Missouri Court of Appeals

223 S.W. 786

205 Mo.App. 207

SUPREME LODGE KNIGHTS OF PYTHIAS, Respondent, v. BEN W. DALZELL, Appellant

Court of Appeals of Missouri, St. Louis

June 25, 1920

Appeal from the Circuit Court of the City of St. Louis.--Hon. Rhodes E. Cave, Judge.

AFFIRMED.

Judgment affirmed.

S. C Rogers for appellant.

(1) The court erred in refusing appellant a jury trial. The equitable questions in the case had been eliminated and there was no dispute as to the amount of money collected because forsooth, appellant's books showed it. The only question was the right to off-set this against the claim of appellant by virtue of his oral contract so that appellant was entitled under the issues to a trial by jury. Sec. 1967, R. S. 1909; Lee v. Conran, 213 Mo. 404; Thompson v Stillwell, 253 Mo. 89; Kansas City v. Smith, 238 Mo. 323; Taylor v. Brown, 92 Ohio St. 287. (2) The court erred in refusing to permit appellant to introduce evidence showing that an oral contract was entered into, the terms and conditions thereof; that the alleged written contract, Plaintiff's Exhibit A, was signed by him by request for the purpose only of showing to other State agents; that it was not to be the contract between the parties; was not to be a contract; was not to be effective binding or controlling upon either party in any manner at any time; and that respondent subsequently acted upon the terms and conditions in all respects of the alleged oral contract. Because the rule is that parol evidence is admissible to show that the instrument is altogether void; that it never had any legal existence or binding force; that the minds of the parties never met; that it was not intended as the contract; that the real contract was an oral one and that the written instrument was executed for the purpose of showing to other state superintendents. 1 Greenleaf on Evidence, sec. 284; 2 Page on Contracts, sec. 349; Jones on Evidence (2 Ed.), sec. 471; 17 Cyc. 642 and 694. Parol evidence is admissible to show that a written instrument was never to be performed but was a mere sham executed for the purpose of influencing the conduct of a third person. Coffman v. Malone, 98 Neb. 819; So. St. Ry. Co. v. Met. Shoe Mfg. Co., 91 Md. 61; Col. Pk. Estates v. Massart, 112 Md. 648; Robinson v. Nessel, 86 Ill.App. 212; Waid v. Hobson, 17 Colo.App. 54; Natl. Bk. of Kennett Sq. v. Shaw, 218 Pa. 612; Birley & Sons v. Dodson, 107 Md. 229; Lepley v. Anderson, 142 Wis. 668. The evidence is admissible whether the proceeding be at law or in equity. Oak Ridge Co. v. Toole, 82 N.J.Eq. 451; O'Brien v. Paterson Brew. Co., 69 N.J.Eq. 117; Ward v. Union Trust Co. of N. Y., 152 N.Y.S. 237; Burroughs Add. Mach. Co. v. Van Deusen, 138 N.Y.S. 839; Alexander v. Righter, 240 Pa. 22; Cobb v. O'Neal, 2 Sneed, 438; Preston v. Breedlove, 36 Tex. 96; Weaver v. Hotze, 27 Ark. 510; Duncan v. Sheehan, 13 Ky. 780. It is proper to show an original parol contract between the parties by which their contractual rights are to be detemined in spite of an alleged written contract. Trice v. Yoeman, 8 Kan.App. 537; Rittenhouse-Winterson Auto Co. v. Kissner, 129 Md. 102; Grierson v. Mason, 60 N.Y. 394; Col. Jewelry Co. v. Brown, 38 Okla. 44; 131 P. 1077; Bl. Globe & Lamp Co. v. Kern Incad. Light Co., 67 N.J. L. 279; Grebe v. Swords, 28 N.D. 330; Farrar v. Holt, 178 S.W. 618; Natl. Novelty Co. v. Duncan, 182 S.W. 888; Burke v. Dunlaney, 153 U.S. 228; Storey v. Storey, 214 F. 973; Davis v. Sterns et al., 85 Neb. 121; Corbin v. Sistrunk, 19 Ala. 203; Bowman v. Torr, 3 Iowa, 571; Furness-With Co. v. Fahey, 127 Md. 333; Earle v. Rice, 111 Mass. 17; Driscoll v. Colby, 145 N.Y.S. 681; Case Threshing Mach. Co. v. Barnes, 19 Am. & Eng. Ann. Cases, 246; 133 Ky. 321. Before the rule excluding parol testimony can be applied, it must first be determined a legal contract actually exists. Black v. W. St. L. & P. Ry. Co., 111 Ill. 351; Knight v. Walker Brick Co., 23 D. C. App. 519; Brewster v. Reel, 74 Iowa 506; Humphrey v. Timken Carriage Co., et al., 12 Okla. 413; O'Leary v. McDonough, 23 N.Y.S. 665; Gregg v. Groesheck, 11 Utah 310; Cameron v. Estabrooks, 73 Vt. 73; Webster v. Smith, 72 Vt. 12; Atwood v. Gillett & Denoyers, 2 Doug. 206; Chic. Bldg. & Mfg. Co. v. Butler, 139 Ga. 816; Brennecke Bros. v. Heald, 107 Iowa 376. The doctrine of the exception to the rule seems to prevail in Missouri to the effect that facts showing that a writing never acquired original vitality as a contract are admissible in evidence. Barrett v. Davis, 104 Mo. 549; Vardeman v. Bruns, 199 S.W. 710. Upon the same theory showing the purpose of delivering a deed is proper. Poplin v. Brown, 200 Mo.App. 255; Johnson v. W. O. W., 199 Mo.App. 98; Bobb v. Wolff, 148 Mo. 335; Brightwell v. McAfee, 249 Mo. 562; Burke v. Murphy, 275 Mo. 397; Huth v. Carondelet M. & D. D. Co., 56 Mo. 202; McKinney v. Hawkins, 215 S.W. 250; Denning Inv. Co. v. Echols, 183 S.W. 165; Bowers v. Bell, 193 Mo.App. 210. The same as to the delivery of bills and notes. Semms & Co. v. Barrett, 190 S.W. 394; Chapin v. Cherry, 243 Mo. 375. Parol evidence is admissible to show that consideration was other than contained in written instrument. Hockaday v. Warmack, 182 S.W. 263. Bare possession of document cannot be made a substitute for delivery. Huey v. Scott, 65 Mo. 689; Scott v. Scott, 95 Mo. 300. Courts will follow interpretation of contract placed thereon by parties. Coleman v. Ford Motor Co., 193 S.W. 866. Letters are admissible to show understanding of parties at time. Brightwell v. McAfee, 249 Mo. 562; Ireland v. Spickard, 95 Mo.App. 53. Missouri courts seem to follow the rule when the case is squarely before them for determination that parol evidence is admissible to avoid wrongful satisfaction of record. Joerdens v. Schrimpf, 77 Mo. 383. (3) The court refused to allow any damages because, as he stated, they were speculative and indefinite. This is no ground for a denial of same. Young v. Tilley, 190 S.W. 95. (4) The court refused to allow appellant five per cent commission on the amount collected amounting to about $ 165.68; also in failing to allow the six per cent discount allowed for advance judgments as provided in plaintiff's Exhibit "C" Section 491. This was error.

Fordyce, Holliday & White for respondent.

S. H. Esarey of counsel.

(1) Respondent was entitled to maintain this suit in equity for an accounting for, and preservation and recovery of the trust funds admittedly collected and wrongfully withheld by respondent's section secretary, Dalzell, and appellant was not entitled to a jury trial. (a) This is conceded by appellant, no point being made in his brief against the right of respondent in this regard. The law is well settled that an agent or trustee must account to his principal and cestui que trust for trust funds collected and withheld from the latter. Johnson v. Blell, 61 Mo.App. 37; Bobb v Bobb, 89 Mo. 411, l. c. 423; Ely v. Coontz, 167 Mo. 371; Polk v. Wind, 124 Mo.App. 577. (b) "Where the aid of a court of equity has been properly invoked to obtain an injunction for the preservation of plaintiff's right, jurisdiction will be retained to completely enforce the right." 16 Cyc. 117; Davis v. Sullivan, 141 Mass. 76; Cocke v. Trotter, 10 Yerg. (Tenn.) 213; Leighton v. Young, 52 F. 439 (C. C. A.). (c) Jurisdiction in equity must be determined on the facts shown on face of the pleadings and jurisdiction cannot be defeated by subsequent events or proceedings in the case. Sprague v. Carroll, 188 S.W. 63; Johnson v. Blell, 61 Mo.App. 37; Martin v. Jamieson, 39 Ill.App. 248; Crawford v. Sommers, 3 J. J. Marsh (Ky.) 300; Case against Minot, 115 Mass. 577, 22 L.R.A. 536; Hawley v. Cramer, 4 Cow. (N. Y.) 717; King v. Baldwin, 17 Johns, (N.Y.) 384; Hamlin v. Hamlin, 56 N.C. 191; Masson's Appeal, 70 Pa. 26; Fraser v. McClenaghan, 2 Strobh. Eq. (S. C.) 227; Grubb v. Starkey, 98 Va. 831; Bush v. Jones, 184 U.S. 598, 46 L.Ed. 707; Kirk v. Du Bois, 28 F. 460; Hoborst v. Howard, 37 F. 97; 16 Cyc. 113. (d) When a court in equity has once acquired jurisdiction in a controversy, it will retain jurisdiction for all purposes and will administer complete relief. Quest v. Johnson, 58 Mo.App. 54; Pindy v. Gault, 19 Mo.App. 191, 202; Kemp v. Foster, 22 Mo.App. 643, l. c. 649; Johnson v. Blell, 61 Mo.App. 37. (e) The law is too well settled to need citation of authority that the defendannt is not entitled to a jury trial in a suit in equity. Sprague v. Carroll, 188 S.W. 63, l. c. 65; Johnson v. Blell, 61 Mo.App. 37; Ely v. Coontz, 167 Mo. 371. (f) The law is equally as well settled that the defendant cannot convert a suit in equity into a lawsuit by filing a counterclaim in the equity suit and that if he injects his counterclaim into the suit, he is not entitled to a jury trial. Sprague v. Carroll, 188 S.W. 63, l. c. 65; (g) The trial court rightfully held that there was no issue to submit to a jury, even if this had been a law case, because there was complete failure of proof by appellant of his alleged counterclaim; hence, there was nothing to go to a jury for it to pass upon. (2) Dalzell having failed to account and pay over to respondent the trust funds collected by him, as section secretary, is not entitled to any commissios. (a) Under supreme statute 450, no commission is due until the funds are actually remitted to the Board. Dalzell refused to remit and claimed the funds himself. (b) Under the law a trustee, who commits a breach of trust by withholding trust funds and compelling the beneficiary to sue to recover same, is not entitled to commissions. Polk v. Wind, 124 Mo.App. 577; Newton v. Rebenack, 90 Mo.App. 650, 676; Kemp v. Foster, 22 Mo. Mo.App. 643, l. c. 649; Harrison v. Craven, 188 Mo. 590, 610; Reilly v. Cullen, 101 Mo.App. 32, 39. (3) There was a total failure of proof by appellant of the alleged oral...