Wallrath v. Bohnenkamp
| Decision Date | 09 December 1902 |
| Citation | 97 Mo. App. 242,70 S.W. 1112 |
| Parties | WALLRATH et al. v. BOHNENKAMP et al. |
| Court | Missouri Court of Appeals |
1. A petition set forth a contract between plaintiffs, as makers of a deed of trust, and defendant, as trustee, whereby defendant agreed to see that the money secured by the deed was applied to the payment of bills for labor and material, and to the contracts for certain buildings on the land covered by the deed, in such a manner as to protect plaintiffs' rights under their contract with the contractor; and that by reason of the failure of defendant to exercise "the care and diligence which he had promised," and by reason of his "negligence and carelessness" in paying the money to the contractor while material and labor liens which the contractor was bound to meet were unsatisfied, plaintiffs sustained damages, etc. Held, that the petition counted on the contract, and not on the negligence of defendant as separate from his contract obligation.
2. Evidence in an action between the maker of a deed of trust and the trustee examined, and held sufficient to support a finding of a contract between them, whereby the trustee was to hold the money obtained under the deed, and expend it so as to protect the grantor's rights under a contract, which he had with a contractor who was building houses on the land covered by the deed.
3. Where, in an action between the maker of a deed of trust and the trustee, who retained the money, the evidence (all verbal) is sufficient to justify an inference that the money has not all been applied as called for by the contract between the parties, the court of appeals will not disturb a verdict necessarily so finding.
4. A trustee in a trust deed agreed with the maker that he would hold the money, and pay it out for labor and materials for certain houses being built on the property covered by the deed, and not pay the contractor for the houses while there were any outstanding bills for labor and material. The trustee did pay the contractor while there were such outstanding bills, and the contractor, an insolvent, failed to apply the money to the payment of the bills. Held, that the grantors in the deed could recover against the trustee for any of such bills they were compelled to pay by reason of such failure of the contractor to pay them out of the sum advanced to him by the trustee.
5. The trustee also agreed not to pay the contractor until the work was completed, but did so. Held, that the grantors could also recover against the trustee for any money they were obliged to expend in the completion of the houses, so far as such expenditures were occasioned by a misappropriation by the contractor of the payment to him by the trustee.
6. If the grantors and the contractor afterwards settled on an agreed sum which the contractor should pay them for the meeting of such bills, the grantors' recovery against the trustee was limited to such sum.
7. It is not error to refuse an instruction covered in one given by the court of its own motion.
8. After a jury had been fully instructed as to the basis of recovery and measure of damages, if any, and had retired, they asked for further instructions as to what items of damages were claimed by plaintiff, whereupon the court gave them an itemized statement of plaintiffs' claims. Held, that such action did not vary the previous instructions, and was proper as a mere recapitulation of the plaintiff's testimony as to the damages.
9. Whether a verdict is against the weight of the evidence is a question to be settled by the trial judge.
Appeal from St. Louis circuit court; Franklin Ferris, Judge.
Action by Ferdinand M. J. Wallrath and another against William L. Bohnenkamp and others. From a judgment in favor of plaintiffs, defendants appeal. Affirmed.
Plaintiffs employed Paul J. Lemke, a building contractor, to erect two frame cottages on a lot of theirs in the city of St. Louis; Lemke agreeing to furnish all the material and labor required to complete the cottages, for which he was to be paid $1,950 in installments as he progressed with the work. Plaintiffs, not having all the money needed to defray the expense of the houses, applied to the defendant Bohnenkamp for a loan of $1,200, and he procured the money from Gustave and Louisa Morelock; the Wallraths executing a deed of trust on the houses and lot to secure the debt, in which deed Bohnenkamp was trustee. Another loan of $300 was afterwards advanced by the same parties and secured in the same way. Bohnenkamp retained the money lent on both occasions to see that it was applied to pay for the construction of the cottages, and refused to pay it to the Wallraths. According to his own testimony, he paid all the first loan but about $20 and $72 of the second one to Lemke, the contractor, paying the balance to laborers and materialmen. Lemke failed to pay for all the labor and material that went into the houses, and plaintiffs were compelled to satisfy certain lienable demands on account of his default, and, as Lemke is insolvent, they instituted this action against Bohnenkamp for reimbursement of what they paid out above the contract price, on the ground that Bohnenkamp improperly disbursed said loan money retained by him, and thereby caused plaintiffs' loss. The building contract between the plaintiffs and Lemke, which there was testimony to show the defendant saw when the first loan was made, bound Lemke to pay all debts incurred to mechanics or materialmen, and allowed plaintiffs to keep back enough of the contract price to discharge whatever obligations of that character he might leave unpaid. In the deeds of trust written by the defendant was a covenant on the part of plaintiffs that the premises were free from mechanics' liens, and that the filing of a lien against them should give the beneficiaries the right to foreclose. The petition, after reciting the above facts, is based on an alleged contract entered into between plaintiffs and defendant, which is set forth as follows: "That both of said deeds of trust were executed and delivered by plaintiffs with the understanding and agreement between plaintiffs and said Bohnenkamp that the loans evidenced by said deeds of trust were made on condition that said Bohnenkamp, for the protection of these plaintiffs as well as the holder of the deeds of trust, was to see to the proper application of the funds raised upon said deeds of trust toward the payment of the balance due for said buildings, so that no mechanics' liens should be filed against said property; that for this purpose said Bohnenkamp was to handle and disburse said funds himself, instead of turning them over to plaintiffs, to the extent to which they might be needed to pay the balance due and to become due for said buildings; that these conditions were accepted by plaintiffs as a part of the terms of said loans, and that said Bohnenkamp, in consideration of the commission he was to receive from plaintiffs, undertook and agreed with plaintiffs, as a part of the services to be rendered by him in connection with said loans, to handle the said funds in such manner as duly and fully to protect plaintiffs in the matter of their rights and duties under said building contract and the covenants and stipulations in said deed of trust, to the end especially, among other things, that all claims for work and labor and materials furnished in, to, and upon said buildings should be fully paid, so that no mechanics' liens or other claims might be filed or might remain unpaid in connection with the erection of said buildings under said contract, and that the contractor, Lemke, should not be fully paid until all the provisions of said building contract had been fully performed and the buildings completed according to said contract; and to that end and purpose said Bohnenkamp furthermore...
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