Weston v. Fisher

• Decision Date: 06 December 1915
• Docket Number: No. 11764.,11764.
• Citation: 180 S.W. 1038
• Parties: WESTON v. FISHER, et al.
• Court: Missouri Court of Appeals

180 S.W. 1038

WESTON v. FISHER, et al.

No. 11764.

Kansas City Court of Appeals, Missouri.

December 6, 1915.

Appeal from Circuit Court, Johnson County; A. A. Whitsett, Judge.

"Not to be officially published."

Action by Wilbur A. Weston against John M. Fisher and others. From a judgment for defendants, plaintiff appealed to the Supreme Court, whence the cause was transferred (264 Mo. 250, 174 S. W. 372). Judgment affirmed.

George W. Littick, of Kansas City, Kan., and J. W. Suddath & Son, of Warrensburg, for appellant. Nick M. Bradley, of Warrensburg, and T. N. Haynes, of Harrisonville, for respondents.

ELLISON, P. J.

Plaintiff's action was instituted by filing a bill addressed to the equity side of the trial court whereby he sought relief against the defendants, whom he charges with being largely in debt to him, also to be in possession of his land and of a lot of personal property. It prayed the appointment of a receiver and one was appointed. At the opening of the trial defendants objected to the admission of any evidence on the ground that the bill disclosed on its face that plaintiff had an adequate remedy a law, and hence failed to state a cause of action. The trial court sustained the objection, and, judgment being rendered for defendants, plaintiff took an appeal to' the Supreme Court. That court transferred the case to this court on the ground that it did not have jurisdiction.

The petition states at length a series of contracts with defendants, whereby for certain advancements to defendants in money for their support and for feed for cattle, sheep, hogs, and poultry, defendants were put in possession successively of tracts of land beginning with 20 acres once owned by defendants, to which there were added other tracts by plaintiff aggregating 239 acres. At first defendants, being indebted to plaintiff and being without means of support, arranged with him for advancements, and they agreed that they would raise stock and poultry. Various sums of money were advanced by plaintiff with the understanding that they would pay back the advancements and one-half the sum paid for stock, implements, etc. It is alleged that defendants failed to perform their agreement, and their debt to plaintiff increased materially by the end of the year. It is then alleged that defendants deeded the 20 acres to plaintiff in consideration that he would assume the mortgage thereon; that it was then agreed between them that defendants should become plaintiff's employes, and could remain in the building on the premises and "operate said farm and receive as compensation onehalf the net proceeds of the stock and poultry and of the crops, less what was needed to feed the stock"; that out of the proceeds going to defendants were to be paid any indebtedness to plaintiff. It is then alleged that plaintiff furnished a number of cattle, sheep and hogs, as well as two horses, three mules, and farm implements. Expenditures by plaintiff are then alleged, and that defendants again utterly failed, causing material loss to plaintiff. It is then alleged that plaintiff notified them of the termination of their employment, and that they acknowledged their failure and agreed to leave the premises, they to be relieved of any further obligation; that the contract was then terminated, but defendants requested permission to stay and care for the stock until plaintiff could get another man. It is then alleged that plaintiff arranged with one Dunkel who went upon the premises to take charge, but was met with a refusal by defendants to surrender, claiming they had some interest in plaintiff's stock. Finally the petition enumerates the stock and personal property on the premises, which it is alleged plaintiff is in great danger of losing, and, after stating that he has no adequate remedy at law, his prayer is for a receiver, that the court "give to the plaintiff immediate possession of the property, real, personal, and mixed,...