Tennent Shoe Company v. Birdseye

• Decision Date: 15 February 1904
• Citation: 78 S.W. 1036,105 Mo.App. 696
• Parties: TENNENT SHOE COMPANY et al., Respondents, v. JOHN T. BIRDSEYE, Appellant
• Court: Kansas Court of Appeals

78 S.W. 1036

105 Mo.App. 696

TENNENT SHOE COMPANY et al., Respondents, v. JOHN T. BIRDSEYE, Appellant

Court of Appeals of Missouri, Kansas City

February 15, 1904

Appeal from Vernon Circuit Court.--Hon. H. C. Timmonds, Judge.

Cause reversed and remanded.

J. B Johnson for appellant.

(1) This is a case strictly in equity, and the issues should not have been tried by a jury. 22 Encyclopedia of Pleading and Practice, pages 135, 136 and 138; In re Ferguson Estate, 124 Mo. 583; State to use Kelley v Thornton, 56 Mo. 325; Dillion, Admr., v. Bates & Co., 39 Mo. 299; Carr v. Waldron, 44 Mo. 393. (2) Having elected to sue the defendants, as partners, the action is against them jointly, and a joint liability must be alleged in the petition or there will be no cause of action stated. Steans v. Aguire, 6 Cal. 176; Downey v Bank, 13 S. and R. 288; Walter v. Ginrich, 2 Watts 204. (3) There can not be a partnership in a trusteeship--it is strictly a personal matter. Parsons on Partnership (2 Ed.), 38, star page 37; Kelsay v Bank, 166 Mo. 157; Bank v. Barksdale, 36 Mo. 563; Seeley v. Beck, 42 Mo. 143; Bales v. Perry, 51 Mo. 449. (4) Information received by one partner is not constructive notice to his partner acting in the capacity of a trustee. Benton v. Bank, 122 Mo. 332. Nor is information acquired by Birdseye, as attorney, notice to him as trustee. Am. & Eng. Encyclopedia (2 Ed.), 587. (5) Evidence of the claim of privilege in another case is incompetent to effect the credibility of a witness. Cane v. Litchfield, 2 Mich. 340; People v. Wilson, 55 Mich. 506; State v. Bailey, 54 Ia. 414; Hirsch v. Green, 83 Mo.App. 486; State v. Grant, 144 Mo. 65.

C. H. Graves and M. T. January for respondents.

(1) A party injured by an irregular or tortious sale under a deed of trust need not move to set the sale aside. He has his action against the trustee for damages. Sherwood v. Saxton, 63 Mo. 78; Tobener v. Hassinbush, 56 Mo.App. 591; Price v. Blankenship, 124 Mo. 203. (2) An equitable right may be enforced in a legal action. Morse v. Bates, 74 S.W. 439; Tobener v. Hassinbush, 56 Mo.App. 591. (3) It is the duty of the trustee in a deed of trust to act fairly in a sale under his power and protect the rights of parties interested in the property. 2 Jones on Mortgages (3 Ed.), sec. 1906, note; Josephena Stoffel v. Schroeder, 62 Mo. 147; Sherwood v. Saxton, 63 Mo. 78. (4) It is the settled law that it is the duty of a trustee in a deed of trust, after a sale under a prior trust deed, to apply the surplus on subsequent liens of which he has notice, in the order of their priority. Abbe v. Justus, 60 Mo.App. 300. (5) A mortgage alone is prima facie evidence of indebtedness. Janssen & Freyschlag v. Stone, 60 Mo.App. 402; Carder v. Primm, 47 Mo.App. 301; 2 Jones on Mortgages (3 Ed.), sec. 1295. (6) Where two or more creditors join in taking security for their several debts they hold as tenants in common. 17 Am. and Eng. Ency. of Law (2 Ed.), 666; 5 Am. & Eng. Ency. of Law, 956; Jones on Chattel Mortgages (2 Ed.), sec. 49. (7) Misjoinder of parties plaintiff, or defendant, can be taken advantage of only by demurrer or answer, and if objection is not so taken it is waived. Luecke v. Tredway, 45 Mo.App. 507; Jones v. Railroad, 89 Mo.App. 653.

OPINION

BROADDUS, J.

Substantially the allegations of the petition are as follows:

That defendants were at all times mentioned in the petition engaged in the practice of law. That on the first day of August, 1902, one W. T. Thorp was the owner of 240 acres of land situated in Vernon county; that said land was encumbered with three trust deeds as follows: The first in favor of Walton Trust Company, securing a note in the sum of $ 2,400; the second in favor of Calvin W. Bryant, securing a note in the sum of $ 1,500; and the third dated the eighth of February, 1902, executed by said W. T. Thorp, securing notes in favor of plaintiffs in the sum of $ 1,500.97, all of said notes being dated February 8, 1902, bearing eight per cent interest and falling due June 1, 1902. That defendant John T. Birdseye was trustee in said second trust deed; that the firm of Birdseye & Harris held for collection the note secured by said second trust deed; that on or about the first day of August, 1902, said Thorp, owner of land aforesaid, entered into a contract with one Enos Simon, by which said Simon agreed to purchase said land for the price of $ 6,600, which said sum said Simon was ready, willing and able to pay within 25 days from date of said contract; that defendants Birdseye & Harris had notice of said contract of sale soon after the same was made, and also had notice of the third trust deed held by these plaintiffs; but said defendant, Birdseye, trustee as aforesaid, under pretense of enforcing payment of the note held by his said firm for collection, said note being secured by said second trust deed in favor of Bryant, but in reality for the purpose of cutting out the third deed of trust held by these plaintiffs, and for no other purpose, proceeded to advertise said property for sale under said second trust deed, and did on Sept. 6, 1902, sell said land at trustee's sale to said Enos Simon for the nominal consideration of $ 1,500, but before delivering the trustee's deed, collected from said Simon the contract price aforesaid of $ 6,600, of which amount the sum of $ 2,520 was applied to the payment of said first trust deed in favor of Walton Trust Co., and the sum of $ 1,630.20 was applied to the payment of said second trust deed in favor of Calvin W. Bryant, and the balance amounting to the sum of $ 2,449.30, was either retained by said Birdseye & Harris or paid over to said W. T. Thorp; that said Thorp is insolvent, and by means of and by reason of the wrongful act aforesaid of defendants, plaintiffs have been deprived of their said security and have lost their said debt, to their damage in the sum of $ 1,500.97, with interest thereon at eight per cent from February 8, 1902, for which sum they pray judgment, and for costs.

The evidence introduced tended to support the allegations of the petition. At the beginning of the trial defendants objected to the introduction of any evidence because the petition did not state a cause of action, but the objection was overruled, which is assigned an error.

Whatever Harris did as a member of the partnership must be attributed to the firm and not to the trustee. And whatever act Birdseye performed in the discharge of his trust was the act of the trustee and in no sense the act of the firm. It can not be controverted successfully that, as a partnership the defendants owed any duty to the plaintiff because of the fact that one of its members was the trustee in question. This is not an equitable proceeding in any sense but a suit at law for damages for the wrongful acts charged. The court very properly held that a case was not made out against the...