Wayland v. Pendleton
Citation | 73 S.W.2d 288 |
Decision Date | 30 April 1934 |
Docket Number | 18043 |
Parties | WAYLAND et ux. v. PENDLETON et al. |
Court | Kansas Court of Appeals |
Rehearing Denied and Transferred to Supreme Court June 11, 1934.
Appeal from Circuit Court, Howard County; A. W. Walker, Judge.
Suit by R. B. Wayland and another against W. G. Pendleton and another, as executors of the will of R. W. Whitlow, deceased and another. Judgment for plaintiffs, and defendants appeal.
Affirmed.
W. H Martin, of Boonville, and Embry & Embry, of California, Mo., for appellants.
Luman Spry, of Fayette, for respondents.
R. B. Wayland and Fay L. Wayland, his wife, instituted this suit in the circuit court of Howard county, Mo., asking that the executors of the estate of R. W. Whitlow, deceased, be restrained from foreclosure of a trust deed on what is designated as lot No. 48, Smith’s addition to New Franklin, Howard county, Mo. J. T. Gaines, being the trustee in the deed of trust, is made a party defendant with the executors.
It appears that in the lifetime of R. W. Whitlow, the plaintiffs herein had borrowed from him $4,000. There appears to have been executed by plaintiffs two notes; one for $2,000, being secured by trust deed on lot 47, and one for $2,000, secured by trust deed on lot 48 of aforesaid Smith’s addition.
R. W. Whitlow died testate, and designated W. G. Pendleton and Charles W. Whitlow as executors of his will. These parties duly qualified and were acting as such during the times herein mentioned.
It appears that the plaintiffs became in default as to the above indebtedness, and the property, pledged to secure the indebtedness, was turned over to Mr. Pendleton, one of the executors, for the purpose of collecting the rent and applying proceeds on the debt. One W. W. Carpenter was delegated by Mr. Pendleton to collect the rent. In so far as the record before us shows, Charles W. Whitlow, one of the trustees, is not shown to have actively participated in the negotiations involved in this case; further, there is no showing that the probate court made any orders concerning any of the matters of negotiations in issue herein.
We state the above facts, before going into the matters in issue, for the reason appellants are urging that W. G. Pendleton, one of the trustees, acted alone in all transactions in controversy; that he had no power under the will to alone bind the estate; and that he had no power to act without order of the probate court.
It appears from the evidence that R. W. Whitlow, one of the plaintiffs, called upon Mr. Pendleton in the latter part of June or the first of July, 1933, and took up with him the question of settlement of the $4,000 indebtedness to the estate, and in a conversation of that occasion it stands admitted that Mr. Pendleton agreed to accept $3,000 and cancel the $4,000 debt, if the money was paid in a reasonable time.
It appears that in the course of a few days Mr. Wayland again came to see Mr. Pendleton, and on this occasion Mr. W. W. Carpenter, having come along, was present at the conference. Prior to this time Mr. Carpenter appears to have communicated with both parties concerning the matter of settlement in hand, and after this time Mr. Carpenter appears to have played quite a part in the negotiations. The exact relation in which Mr. Carpenter appears in the matter is very indefinite. He had represented each party in individual matters, and we conclude from a careful study of the evidence that in the negotiations Mr. Carpenter’s position is best expressed in the common parlance, "a gobetween."
The issues presented will be more clearly understood by using the language of the three principal witnesses.
Mr. Wayland’s version is as follows:
***"
The receipt from Carpenter to Wayland is as follows:
Mr. Wayland explained turning the money over to Carpenter as follows: ’
Mr. Carpenter’s version of the transaction is as follows:
"*** Q. You were present July 1st when Mr. Pendleton offered to accept $3,000 in discharge of the $4,000? A. I don’t think he made the offer in that way. When we were prospecting to make this sale and getting it closed, I suggested to Bob that we go over and see Mr. Pendleton; and when we went over there and told Mr. Pendleton the facts he said, ‘I won’t accept $1,500 that way.’ He said, ‘I am not doing this estate right to accept it that way.’ I said, ‘Would you accept $1,800 now and $1,200 on or before August 1st?’ And before he answered me Bob said, ‘Don’t fix any date but fix a reasonable time.’ And they argued. And I said, ‘Mr. Pendleton, Bob has had some pretty heavy losses, and if he could get this other house with a thousand or twelve hundred on it he could probably rebuild himself.’ And when I put it to Mr. Pendleton that way he said, ‘I will take it.’ And they had quite a bit more argument, and finally I saw it was getting at a stage that it would be a good idea for us to move. And before he accepted Bob I understood Bob to say, ‘I will see those houses in hell before I would do that.’ And Mr. Pendleton got up and walked in his home and we were left standing; and the next conversation I had with Mr. Pendleton was when I was asking him whether or not he would take the $3,000 in deposit slip or draft, and he told me a draft if I wanted to; and Mr. Painter called me to the phone and said, ‘Mr. Carpenter, Mr. Pendleton flatly rejected your offer.’ And he came over the next day, and after much conversation he accepted the $1,800, and he told me over the phone he would not accept it.
Q. Was that after you gave the receipt for the $3,000? A. The conversation I had with Mr. Pendleton that morning was after that.
Q. It was after you had given Mr. Wayland the receipt for $3,000? A. Yes.
Q. And he did, however, change his mind and accept $1,800? A. With the understanding it had no reference to the other.
Q. Mr. Wayland didn’t have any knowledge of this distinct understanding you two fellows had? A. I don’t suppose he did. He didn’t have no chance to know anything about that."
Mr. Pendleton’s version is as follows:
To continue reading
Request your trial