Wayland v. Pendleton

• Citation: 73 S.W.2d 288
• Decision Date: 30 April 1934
• Docket Number: No. 18043.,18043.
• Parties: WAYLAND et ux. v. PENDLETON et al.
• Court: Court of Appeal of Missouri (US)

73 S.W.2d 288

WAYLAND et ux. v. PENDLETON et al.

No. 18043.

Kansas City Court of Appeals. Missouri.

April 30, 1934.

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.

SHAIN, Presiding Judge.

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 go-between."

The issues presented will be more clearly understood by using the language of the three principal witnesses.

Mr. Wayland's version is as follows:

"* * * Q. I will get you to state what that conversation was with Mr. Pendleton? A. Well, we talked to him in regard to the place I had sold. We wanted Mr. Pendleton to send the papers over so we could close up the deal with Mr. Lisky, and Mr. Pendleton asked me if I had sold the place and I told him yes, and we showed him the contract and he read it over and after reading it over he said, `You have sold this place and I want all the money coming to me except the cost of selling the place.' I said, `That is not what you told me the other day.' He said, `I know it. I thought you were going to borrow the money.' And I said, `What difference did it make?' And he said, `It makes so much difference I am not going to take it.' And I got mad and said, `You said you would take $1,500 each on these two places.' He said, `Have you got it in writing?' I said, `No, I took your word for it.' He said, `Anything in writing is binding.' "Q. Was anything further said about the payment of $3,000 in discharge of the $4,000? A. Mr. Carpenter spoke up and told him he was putting me in a bad place. And Mr. Pendleton said, `If Mr. Wayland will pay me $1,800 on the first sale and $1,200 out of the next one, I will take $3,000.' And Mr. Carpenter said, `If he will pay you $1,800 out of the first and $1,200 out of the next, you will take it?' He said, `I will.' Mr. Pendleton got up and walked in the house and said, `Do as you like, Mr. Wayland,' and walked in the house. And the next day I went to the bank and tried to borrow the money. I sold the place to my sister and she borrowed the money from the bank and I gave her a deed and I turned the money over to Mr. Carpenter and took his receipts. * * *"

The receipt from Carpenter to Wayland is as follows:

                                              "No. 499
                                             "7/3/1933
                

"Received of R. B. Wayland Three Thousand Dollars. $1550.00 cash. $1450 checks for settlement with W. G. Pendleton ex R. W. Whitlow.

                "$3,000.00   [Signed]  W. W. Carpenter."
                

Mr. Wayland explained turning the money over to Carpenter as follows: "* * * Q. All right, you state what conversation you had with Mr. Carpenter at that time? A. Mr. Carpenter and I drove over from Boonville to his office, and I says to Mr. Carpenter, `If I go to the expense of raising this money and sacrificing this place and sell it and get the money, do you think Mr. Pendleton will take the $3,000.00?' He said, `He has got to take it; he told me he would accept it.'"

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:

"* * * They came up on the front porch where I was sitting, and Mr. Wayland sat down on the same long seat on the porch where I was sitting and Mr. Carpenter sat on the coping in front of Mr. Wayland about six or eight feet; and after some preliminary talk the question of this proposed deal came up, and it will be impossible for me to state in detail the exact language of all the conversation, but the substance of it was that Mr. Wayland was insisting that I release the property on the terms I had proposed, and I told him I couldn't and wouldn't do it; and Mr. Carpenter got out a piece of paper and pencil and began to figure on deductions from the amount of $2,250 the amount of 5 per cent commission that was stated would be $112.50 and a lot of back taxes and reduced it quite below $2,000 of the net proceeds. Mr. Carpenter appeared to be somewhat embarrassed and concerned about it. It was then I made this statement and proposition that I would take $1,800 out of the sale of this Lot 47, and later accept $1,200 out of the balance if paid within a short time. I don't remember the exact time I stated. Mr. Carpenter said, `Can't you make that further payment on the first of August and give Mr. Wayland an opportunity to raise it?' and I assented. At this state of the conversation Mr. Wayland got up and walked toward the steps in the direction of Mr. Carpenter, and I understood him to say, `I will see you in hell before I will do it.'

"Q. What did you do, if anything? A. They walked down the steps into the car and I walked back...