Trice v. Comstock

• Decision Date: 05 May 1902
• Citation: 115 F. 765
• Parties: TRICE et al. v. COMSTOCK et al.
• Court: U.S. District Court — Western District of Missouri

115 F. 765

TRICE et al. v. COMSTOCK et al.

United States Circuit Court, W.D. Missouri, Western Division.

May 5, 1902

Thurman Wray & Timmonds and Robinson, Bowling & McCluer, for complainants.

John C Tarsney, for respondents.

McPHERSON District Judge.

This is an action by a bill in equity to enforce an alleged resultant trust. The complainants are a firm dealing in real estate residing at Lamar, Barton county, Mo. Respondents are brothers, residing in a small town near Clinton, Iowa. W. C Comstock is a banker and dealer in real estate. James C. Comstock has been a merchant. H. B. Buckwalter, now deceased, late of Westchester, Pa., owned a body of 1,920 acres of land in Barton county, Mo., the larger part or all improved. George E. Bowling, an attorney at law and real estate agent, of Lamar, Mo., up to the death of Buckwalter, in 1897, and for many years prior thereto, was Buckwalter's agent for renting and caring for the lands, but without authority to sell. Buckwalter left a last will and testament, by the terms of which these lands were devised to a Mr. Reid as executor, and a lady as executrix, with power to sell and convey these lands. The lady had nothing to do with the matters and things hereinafter recited, refusing, when requested, to recognize any of the parties. The business on the part of the estate was conducted by Mr. Reid. His conduct is in no way challenged, and it is sufficient, and likewise proper, once and for all, to say that he is a lawyer of ability, and a gentleman of high character and integrity. After Mr. Reid became the executor he concluded it the better to sell these lands. He went to Barton county, Mo., viewed the lands, and sought information of their value. This was in 1897. He had much talk with Bowling, as well as subsequent correspondence. There is evidence on the question, and much said in argument, and mostly pertinent, as to the character of the transactions of Bowling, the complainants, and the two defendants, from the first to the end of the matters under consideration; and it is proper to say that the complainants, and Bowling included, and the respondent W. C. Comstock, were all keen, shrewd speculators, and manipulators and promoters, doing things by short turns, and by methods that seem novel. The lands in question were attractive and cheap.

The complainants, in carrying on their real estate business of Lamar, did what they called 'immigration' business. They sought to influence people from Iowa, Illinois, and other states to buy lands, and locate in Barton county. But their real purpose was the making of money for themselves on so-called 'commissions' or 'differences.' It seems that they would not sell lands on regular or fixed commission. Their method was to obtain an option from the landowner on the lands at a fixed price net to the owner, they to have all they could get over the price thus fixed. By so doing they were not obligated in any way, but the landowner was tied up. They claim to have had such arrangement as to the Buckwalter estate lands of 1,920 acres. This is one of the disputed questions of the case. That they had no such arrangement directly with Buckwalter or his executor is not disputed; and there is not even a pretense that the lady who was executrix, directly or indirectly, gave any authority to sell the lands at any price, or any terms, to any person. If they did have such arrangement, it was only with Bowling, the rental agent, but who claims to have received from Reid, the executor, the additional authority to sell. This Reid denies.

A man by the name of Reitmeyer, of northeastern Iowa, an insurance agent, promoter, and dealer, by most peculiar and tortuous methods, in most anything, gets into correspondence with complainants on the subject of 'immigration' into Barton county. He was to induce men to visit Barton county to look at lands, the expenses of himself and prospective purchasers for the trip to be paid by complainants, on receipts taken according to prescribed forms from certain railroads, for the evident purpose of enabling complainants to be reimbursed from the railway companies in whole or in part. Reitmeyer asked complainants, which request was granted, to have the respondent W. C. Comstock act with him, as a kind of or semi partner, in taking persons to Barton county, and receive a part of the contingent commission to be received by complainants, being the excess received by them over and above the net price fixed by the owner. And W. C. Comstock and Reitmeyer, in this 'immigration' business, took one or more persons to Barton county, and a part of the expense was paid by complainants,--something like $70. How much complainants are out, if any sum, the evidence does not show.

Complainants made two claims: First, that they were the agents, duly authorized by the Buckwalter estate, to sell the lands. But I find that they had no such authority. Much is said by counsel on both sides as to the statute of frauds. In my judgment, that question is not entitled to consideration, for the reason it has no application. Bowling says he had the authority from Mr. Reid, the executor, to employ the complainants. This Reid denies, and the correspondence from Bowling absolutely destroys his evidence.

Complainants' other claim is that, if they did not have the authority to sell the lands, they assumed to have the authority, and that as between them and defendant W. C. Comstock, this was sufficient. The testimony fairly shows the following as the facts: In 1897, and after Mr. Buckwalter's death, Mr. Reid, the executor, came West to...