Swearingen v. Moore

• Decision Date: 03 December 1923
• Docket Number: No. 14706.,14706.
• Citation: 257 S.W. 815,215 Mo. App. 531
• Parties: SWEARENGEN v. MOORE.
• Court: Missouri Court of Appeals

257 S.W. 815

215 Mo. App. 531

SWEARENGEN v. MOORE.

No. 14706.

Kansas City Court of Appeals. Missouri.

December 3, 1923.

Rehearing Denied January 21, 1924.

Appeal from Circuit Court, Bates County; C. A. Calvird, Judge.

Action by Woody Swearingen, as administrator of the estate of Simeon H. West, against Harry C. Moore, in which defendant counterclaimed. Judgment for defendant, and plaintiff appeals. Affirmed.

M. T. January, of Nevada, Mo., for appellant.

W. M. Bowker, of Nevada, Mo., and D. U. Chastain, of Butler, for respondent.

ARNOLD, J.

This is a suit by an administrator against the defendant to recover $965.97 claimed to be in the hands of the latter as the balance of a first payment on the sale of Lake Park Springs, a pleasure resort in the city of Nevada in Vernon county, Mo.

The record shows that during the years 1917, 1918, 1919, and 1920, until his death, one Simeon H. West of Le Roy, Ill., was the owner of the property above mentioned. Defendant Moore formerly owned the property, and sold it to said West for $18,000. At that time it consisted of 72 acres, but West purchased additional acreage, and at the time of his death it contained about 180 acres, and was a pleasure resort in the southwest part of said city. Because of advancing years, being about 90 years of age, Mr. West desired to sell the property, and during the year 1918, while he was in Nevada, he employed defendant to act for him in securing real estate agents to find a purchaser and to assist in making a sale. West advertised the property in newspapers in Kansas City and other cities, and told defendant he would refer to him all prospective purchasers, and asked Moore to look after them when they came to Nevada to inspect the property. Defendant agreed to this, and during the years 1918 and 1919, as such letters of imquiry were referred to him he answered them, and, as prospective buyers appeared, he exhibited the property. He also employed agents to find a purchaser, among them being one E. B. Todd, who found a purchaser in 1920, to whom the property was sold. The owner had authorized defendant Moore to sell the property for $50,000, and authorized payment of $5,000 as commission to the agent selling it. One Doctor Hornschuch agreed to buy the property for $54,000, with a down payment of $2,000, and a contract was accordingly drawn for the sale at that price.

About this time Mr. West died, and his wife and son were made executors of his estate. They took up the matter of the sale of the property with defendant by correspondence and insisted upon his promptly closing the deal, but later came to Nevada and closed the sale to Doctor Hornschuch, after making some changes in the contract relative to the deferred payments. For his services and expenses in compliance with his alleged contract with Mr. West in promoting the sale of the property, during a period of about three years, Mr. Moore made a charge against the estate of $1,500. During this period defendant was superintendent of the park, looked after the employees, collected the rents, deposited the money, paid bills, and remitted the balance to Mr. West during the lifetime of the latter. This service was performed under another contract, and he makes no claim for services of that character.

When the deal was finally closed for the sale of the property to Doctor Bornschuch, defendant rendered an account of the money coming into his hands as superintendent, showing a balance due the West estate of $965.97. There is no controversy as to this amount. There is a controversy, however, as to the counterclaim of defendant for the $1,500 charge for his services under special employment by Mr. West in employing agents, answering correspondence, and in looking after prospective buyers.

The suit was instituted in Vernon county, but taken to Bates county on change of venue, and there tried to a jury, resulting in a verdict for defendant on his counterclaim in the sum of $500, and against plaintiff on the petition.

The petition alleges that on April 4, 1920, one Doctor Hornschuch paid defendant $2,000 for the use of the estate of S. H. West, being an advance payment on the purchase price of the property in question; that in addition to said payment, defendant has collected and has in his hands $43.18, being the net income from the park up to June 5, 1920, making a total of $2,043.18; that out of this amount defendant by authority has properly expended $1,077.21. Judgment was prayed for the balance, $965.97.

The amended answer admits the receipt of $2,043.18 and the expenditure of $1,077.21. By way of counterclaim defendant charges the estate is indebted to him in the sum of $1,500 on account of services under an agreement with said Simeon H. West, deceased; that under the terms of said agreement defendant was to act as the agent of said West in securing real estate agents to sell said property, and to assist said agents in whatever way he could in bringing about a sale; that pursuant to said contract defendant was compelled to, and did, conduct correspondence with many prospective purchasers, and showed said property to persons interested, in an endeavor to make a sale; that during all of said years, up to the time the property finally was sold, much time of defendant was consumed in writing letters to persons referred to defendant by West; that through these efforts the property was sold, and that in promoting and helping to promote said sale defendant performed numerous services in connection with the handling of the property; that while said negotiations were pending a storm uprooted many trees and destroyed many buildings on the property, necessitating numerous repairs in order to effect a sale, and that this work was done by defendant. The answer further states that the reasonable value of all the services rendered under the provisions of the alleged special contract was $1,500, for which judgment was prayed, less the sum of $965.97, acknowledged by defendant to be due the estate.

The reply was a general denial of all allegations in the answer, except such as were specifically admitted in said reply. Further, plaintiff states that on March 5, 1917, a written contract was entered into between Simeon H. West and defendant, whereby defendant was made superintendent of said park, and by the terms of which defendant was allowed to reimburse himself out of the receipts of said park for all necessary traveling expenses made in the interest of the park, and for stationery, postage, etc.; that under said contract defendant received and paid out all income derived from said park, except a net balance of $43.18 mentioned in the petition; that afterwards, on November 2, 1917, said Simeon H. West gave to defendant written power of attorney to sell said property at a price of $50,000, out of which $5,000 was to be deducted as...