Witmer v. Nichols

• Citation: 8 S.W.2d 63,320 Mo. 665
• Decision Date: 03 July 1928
• Docket Number: 26811
• Parties: Florence M. Witmer and D. W. Witmer, Appellants, v. J. C. Nichols, D. M. Pinkerton, William Volker, James E. Nugent, Carolyn M. Fuller, W. A. Armour, E. C. Meservey, J. C. Nichols Investment Company, Charles W. Armour, and School District of Kansas City
• Court: United States State Supreme Court of Missouri

8 S.W.2d 63

320 Mo. 665

Florence M. Witmer and D. W. Witmer, Appellants, v. J. C. Nichols, D. M. Pinkerton, William Volker, James E. Nugent, Carolyn M. Fuller, W. A. Armour, E. C. Meservey, J. C. Nichols Investment Company, Charles W. Armour, and School District of Kansas City

No. 26811

Supreme Court of Missouri

July 3, 1928

Appeal from Jackson Circuit Court; Hon. Nelson E. Johnson Judge.

Affirmed.

Proctor & Phillips for appellants.

(1) Plaintiffs, as taxpayers, were entitled to institute this cause of action upon refusal of the school board to bring such suit after demand. 4 Dillon, Municipal Corps., sec 1579; Bailey v. Strachan, 77 Minn. 526; Egaard v. School District, 109 Wis. 366; Land & Log Co. v McIntyre, 100 Wis. 245; Zuelly v. Casper, 160 Ind. 455; Kellogg v. School District, 13 Okla. 285; Independent School Dist. v. Collins, 15 Ida. 535. (2) A transaction in which a public officer is interested, directly or indirectly, is opposed to public policy and absolutely void, and it is not a question of the fairness of the transaction or the fraud perpetrated, for the reason that it is the relation which is condemned by the law. 1 Abbott, Public Corps., 569; 2 Dillon, Municipal Corps., secs. 772, 773; 2 McQuillin, Municipal Corps., p. 1104; Greenhood, Public Policy, Rules CCXI, CCLXXIX; 2 Beach, Public Corps., 1332; 24 R. C. L. 579, 580; Land Co. v. McIntyre, 100 Wis. 245; People v. Overyasel, 11 Mich. 222; Smith v. City of Albany, 61 N.Y. 444; Dwight v. Palmer, 74 Ill. 295; Berka v. Woodward, 123 Cal. 129; McGee v. Lindsay, 6 Ala. 116; Ft. Wayne v. Rosenthal, 75 Ind. 156; Mayor of Macon v. Huff, 60 Ga. 221; Sebring v. Starner, 197 N.Y.S. 202; Beebe v. Board of Supervisors, 19 N.Y.S. 929; Sturr v. Elmer, 75 N. J. L. 443; City of San Diego v. San Diego & Los Angeles Ry., 44 Cal. 106; Koons v. Richardson, 227 Ill.App. 447; Stockton Plumbing Co. v. Wheeler, 68 Cal.App. 592; Wilson v. Smith (Ky. App.), 284 S.W. 1102; Montgomery v. City of Atlanta, 134 S.E. 152; Smith v. Dandridge, 98 Ark. 38; Wertz v. Independent School Dist., 78 Iowa 37; Independent School Dist. v. Collins, 15 Ida. 535; Noble v. Davidson, 177 Ind. 19; Bay v. Davidson, 133 Iowa 688; Secs. 2585, 3336, 3340, 4462, 7048, 7636, 7656, 8041, 8237, 10847, 11407, 11458, 12262, 12482, R. S. 1919; Seaman v. Levee District, 219 Mo. 1; State ex rel. Strief v. White, 282 S.W. 147.

Meservey, Michaels, Blackmar, Newkirk & Eager for respondents.

(1) The defendant J. C. Nichols Investment Company, is neither a necessary nor a proper party to the proceeding, and the petition does not state facts sufficient to constitute a cause of action against it. (2) The interest of J. C. Nichols in the purchase of the fifteen acres in controversy was not adverse to that of the Board of Directors or the Board of Education. Van DeVere v. Kansas City, 107 Mo. 83; Glasgow v. St. Louis, 107 Mo. 198; Gorman v. Railroad, 255 Mo. 483; Peters v. Buckner, 288 Mo. 618; Southern Ill. & Mo. Bridge Co. v. Stone, 194 Mo. 188; Daugherty v. Brown, 91 Mo. 26; Kansas City v. Morton, 117 Mo. 446; Dunlop v. City (Pa.), 13 Weekly Notes Cas. 98-99; 4 Words & Phrases, p. 3695; Escondido Lumber Co. v. Baldwin, 84 P. 285; Worrell v. Jurden, 36 Nev. 85; 31 Cyc. 1149; 2 C. J. 714, 706; Mechem on Agency, sec. 67; Stone v. Slattery's Admr., 71 Mo.App. 442; Wilson v. Insurance Co., 90 Kan. 355; Casey v. Donavan, 65 Mo.App. 521; Lamb Knit-Goods Co. v. Lamb, 119 Mich. 568; British-Am. Assurance Co. v. Cooper, 40 P. 150; Amber Petroleum Co. v. Breech, 111 S.W. 668; City of Topeka v. Hountoon, 46 Kan. 634; Smedley v. Kirby, 120 Mich. 253. (3) Plaintiffs, as taxpayers, were not entitled to institute this suit for the reason that the matters sought to be litigated are res adjudicata as to the defendants J. C. Nichols and the J. C. Nichols Investment Company. Melvin v. Hoffman, 290 Mo. 464; 34 C. J. 1028; State ex rel. Wilson v. Rainey, 74 Mo. 235; Eaton v. Board of Trustees, 114 S. E. (N. C.) 689; Williams v. Board of Supervisors, 103 So. 812; State v. McDonald, 108 Wis. 8. (4) Equity will not lend its aid to accomplish a useless purpose or where the sole ground for seeking relief is based upon a technicality. Bride v. Baker, 37 Mo.App. 231; Marshall Inv. Co. v. Lindley, 156 Iowa 6; Weniger v. Success Mining Co., 227 F. 553; 21 C. J. 159; Foster v. Railroad, 146 U.S. 88; Joyce v. Growney, 154 Mo. 263; Dixie Grain Co. v. Quinn, 181 Ga. 208; VanBuren v. Posteraro, 45 Col. 588; Galford v. Eadmin, 242 Ill. 41; Goodrich v. Moore, 2 Minn. 61; Eckman v. Eckman, 55 Pa. St. 269; Nichols v. Wimer, 230 S.W. 343.

OPINION

Ragland, J.

The appeal in this cause is from a judgment rendered on a general demurrer to the petition. The question for determination is whether the petition states a cause of action entitling the plaintiffs to the relief prayed for, or any equitable relief.

According to the petition the plaintiffs are resident taxpayers of the School District of Kansas City; the individual defendants, other than C. W. Armour, are the members of the School Board of said district; Armour, at the times of the transactions involved, was merely the owner of a large body of farm or grazing land in the southwest portion of Kansas City; and the J. C. Nichols Investment Company, a corporation in which defendant J. C. Nichols was a large stockholder and of which he was president, was at said times commercially engaged in developing vacant lands for residential purposes in Kansas City, and particularly in the southwest portion thereof. Respondent, C. W. Armour, has died pending the appeal, but the cause has not been revived as against him in the name of his heirs.

The facts pleaded as constituting a cause of action may be summarized as follows:

On or about January 1, 1922, Nichols and the Investment Company purchased from Armour for residential development 230 acres of vacant land, located south of 65th Street and east of Wornall Road in the southwest portion of Kansas City, paying therefor an average price of $ 1625 per acre. Coincident with that transaction, or shortly thereafter, the members of the School Board sought to purchase from Armour a high school site at or near the southwest corner of 65th Street and Wornall Road, but Armour refused to sell any of his land for a school site. During the time the members of the school board were endeavoring to buy a school site from Armour, he entered into negotiations with Nichols and the Investment Company looking to a sale to them of a tract of seventy-four acres of vacant land, located south of 65th Street and west of Wornall Road and which included the fifteen acre high school site in controversy in this proceeding. Armour asked $ 4000 per acre for the seventy-four acre tract, but Nichols and the Investment Company offered him only $ 2500 per acre. Finally Armour offered to sell the entire tract at $ 3500 per acre, but Nichols and the Investment Company refused to purchase even at that price. At this juncture Armour on the one side and Nichols and the Investment Company on the other devised the following scheme or plan: "Armour was to dispose of his entire seventy-four acre tract at the price and sum of $ 3500 per acre, payable $ 75,000 cash and balance on terms; Nichols and the Investment Company were to obtain title to at least fifty-nine acres of said seventy-four acre tract at the price and sum of $ 3118 per acre with no cash payment down, but on three equal deferred payments maturing in five, seven and ten years respectively; and the title to fifteen acres of said seventy-four acre tract should pass to the School District of Kansas City for a consideration of $ 5000 per acre, payable all cash."

Pursuant to the scheme just referred to a written contract was prepared, purporting to be between Armour and one Josephine Kelly, "a straw person," and wherein and whereby Armour agreed to sell and Kelly agreed to buy the seventy-four acre tract on the following terms: Consideration $ 3500 per acre, purchaser to pay seller $ 10,000 in cash upon the signing of the instrument, $ 65,000 upon the consummation of the sale and the remainder in three equal installments, one at the end of five years, one at the end of seven years and one at the end of ten years thereafter respectively. Kelly signed the instrument on the 17th day of May, 1922, and on the same day indorsed thereon an assignment in blank of her purported interest under the contract. On the 18th day of May, 1922, Nichols and the Investment Company "attached their signatures to said contract; by the indorsement thereon that they approved of the terms of said contract; that they would carry out its provisions in all details; that they would pay the $ 10,000 cash payment required in and under said contract and would execute, or cause to be executed, three equal notes for $ 61,667, due in five, seven and ten years respectively." At the same time "they . . . deposited their own check for $ 10,000 on account of the purchase price of said seventy-four acre tract." The contract was signed by Armour on the 21st day of May, 1922. On May 26, 1922, the School District by its president, defendant Pinkerton entered into a purported contract with said Kelly for the purchase of fifteen acres at the southwest corner of the intersection of Wornall Road with 65th Street, being a part of the seventy-four acre tract. By the terms of such contract the School District was to pay $ 75,000 in cash upon the delivery to it of a warranty deed conveying the title. Subsequently, on May 29, 1922, Nichols, as a member of the School Board introduced at a meeting of the board a resolution providing for the purchase of the said fifteen acre tract for a high school site and authorizing the issuance of a voucher in the sum of $ 75,000 to be used in paying for it. The resolution was...