Witte v. Storm

• Decision Date: 12 July 1911
• Citation: 139 S.W. 384,236 Mo. 470
• Parties: JOHANNA WITTE, Appellant, v. JOHN F. STORM et al
• Court: Missouri Supreme Court

139 S.W. 384

236 Mo. 470

JOHANNA WITTE, Appellant, v. JOHN F. STORM et al

Supreme Court of Missouri, First Division

July 12, 1911

Appeal from St. Louis City Circuit Court. -- Hon. Jesse A. McDonald Judge.

Reversed and remanded (with directions).

Seneca N. Taylor and A. A. Paxson for appellant.

(1) Plaintiff has not in any sense of the word ever had an accounting. Storm's own letters show that he was still acting under the powers of attorney at a date subsequent to the date of the alleged statement rendered. Besides that statement was objected to and never assented to by plaintiff or her attorney, but they both repudiated it as inaccurate. Again, it would not bind the plaintiff, because she had been and was at the time deceived as to the title. (2) Storm's sale of the property as trustee under the $ 2000 deed of trust to Kehoe, who, as it turns out, was acting for Storm was absolutely void. A trustee can not buy at his own sale or speculate with the trust property. Harrison v Craven, 188 Mo. 591; Newton v. Rabeneck, 90 Mo.App. 672; Newman v. Newman, 152 Mo. 398; Tuggles v. Callison, 143 Mo. 536; Stitt v. Stitt, 205 Mo. 166; Van Raalte v. Epstein, 202 Mo. 173; 1 Am. & Eng Ency. Law (2 Ed.), 1071; Barthelmew v. Leech, 7 Watts, 472; Thornton v. Irwin, 43 Mo. 163; Boardman v. Florez, 47 Mo. 562; Fov v. Mackreth, 2 Broc. 400; Marshall v. Ferguson, 94 Mo.App. 175; Palmer v. Pirson, 24 N.Y.S. 333; Stewart v. Ranch Co., 128 U.S. 388; Davis v. Kline, 96 Mo. 401; Grumley v. Webb, 44 Mo. 431; Lass v. Sternberg, 50 Mo. 124; Gaines v. Allen, 58 Mo. 537; Darling v. Potts, 118 Mo. 507. (3) The judgment in the ejectment suit is not res adjudicata, nor an estoppel by record, in this case. The plaintiff in that case was Storm under Kehoe's name. The situation and condition of neither party has been changed thereby to his or her prejudice or detriment. Speed v. Railroad, 163 Mo. 123; Barkhoefer v. Barkhoefer, 93 Mo.App. 381; Winham v. Kline, 77 Mo.App. 36; Garland v. Smith, 164 Mo. 1; Overshimer v. Britton, 169 Mo. 341; Johnson v. Stebbins, 177 Mo. 581; Rodney v. Gibbs, 184 Mo. 1; Calvert v. Hoobs, 107 Mo.App. 7; Davidson v. Mayhew, 169 Mo. 258; Patillo v. Martin, 107 Mo.App. 653. (4) The proceedings of sale under the Leonori judgment can not be invoked by the defendants to their gain in this case. They were instructed by the plaintiff, when the powers of attorney were given, to pay that judgment out of the first money they obtained, and it was defendant's duty to have done so. Not only so, but at the sale under the Leonori judgment the property was struck off to R. J. Delano, and by Delano conveyed to N. B. Hatcher, January 23, 1899, and on the same day conveyed by said Hatcher to Frank P. Storm, who was only a straw man for Storm & Farish, and Frank P. Storm on the 18th day of March, 1901, conveyed said property to Edward H. Brockmeyer. Therefore, if any title passed under the Leonori judgment sale to Delano, whatever that title, was finally culminated in Edward H. Brockmeyer on the 18th day of March, 1901. Brockmeyer was simply the bookkeeper of Storm & Farish, and never had any beneficial interest in any of this property. Whenever there was a holding in Brockmeyer's name of this property, such holding was for the use and benefit of plaintiff. (5) Plaintiff explains her reason for delay: She had no funds with which to institute proceedings to vindicate her rights; and the situation of none of the parties to this suit is in any way changed to his or her detriment by the delay. Sicher v. Rambousik, 193 Mo. 129; Lipscomb v. Adams, 193 Mo. 531; Newman v. Newman, 152 Mo. 398; Lindell Co. v. Lindell, 142 Mo. 78. (6) A broker who is guilty of fraud or gross negligence in his dealings with his principal, and who knowingly renders false and fraudulent accounts; or who neglects to keep true and correct books, and accounts of his transactions; or who, having sold the goods, converts the money to his own use; or who violates his instructions in regard to the same forfeits his commissions and may be held liable to compensate his principal for the loss and injury sustained. Mechem on Agency, sec. 1027; Brennen v. Strauss, 76 Ill. 234; Norman v. Pepper, 24 F. 403; Fordyce v. Pepper, 16 F. 516; Talcott v. Chew, 27 F. 273; Dodge v. Killotson, 12 Pick. (Mass.) 328; Seeger v. Parish, 20 Gratt. (Va.) 672; Kilpatrick v. Wiley, 197 Mo. 169; Harrison v. Craven, 188 Mo. 592; Gibson v. Bailey, 114 Mo.App. 350; Dennison v. Aldrich, 114 Mo.App. 701; 12 Am. & Eng. Ency. Law (2 Ed.), 671; 1 Am. & Eng. Ency. Law (2 Ed.), 671; Broch v. Hart Co., 57 Mo.App. 610; Smith v. Crews, 2 Mo.App. 269. (7) If the principal, in order to secure his claim against the broker, is compelled to resort to litigation, the broker will not be allowed any commissions. Mechem on Agency, sec. 1027; Vennum v. Gregory, 21 Iowa 326; Van Raalte v. Epstein, 202 Mo. 173, 196; Harrison v. Craven, 188 Mo. 592; Gibson v. Bailey, 114 Mo.App. 350; Dennison v. Aldrich, 114 Mo.App. 701. (8) The record facts are of such a character as to destroy any right in the defendants for compensation for their services. Agents who act in bad faith with their principal are not entitled to compensation or commissions. Harrison v. Cramer, 188 Mo. 610; Paul v. Mach. Co., 87 Mo.App. 654; Schaefer v. Blair, 149 U.S. 248; Wadsworth v. Adams, 138 U.S. 380; Sea v. Carpenter, 160 U.S. 412; Vennum v. Gregory, 21 Ia. 326; Sumner v. Reicheniche, 9 Kas. 320; Porter v. Silvers, 25 Ind. 395; Fordyce v. Pepper, 16 F. 516. (9) "To support the plea of a stated account so as to conclude the parties in relation to all the dealing between them, the accounting must be shown to have been final. Hence the binding force of an account stated will not be given to the mere furnishing of an account or other transaction which was not with a view to asserting a claim, establishing a balance due, or finally adjusting the matters of account between the parties." 1 Cyc. 366-367; Brown v. Kimmel, 67 Mo. 430; Powell v. Railroad, 65 Mo. 658; Railroad v. Com. Co., 71 Mo.App. 299; McCormick v. Sawyer, 104 Mo. 36; McKeen v. Bank, 74 Mo.App. 281; Wind v. Bank, 39 Mo.App. 72. (10) "An acount stated must be made with knowledge or with opportunity of knowledge on the part of the debtor of all the circumstances, and the rule that retaining an account without objection makes an account stated cannot be applied to cases in which the party to whom the account is rendered has no knowledge of his own interests in the matters contained in the account. So, where a party renders an account under a mistake of facts, it is held that the rule that acquiescence in an account rendered will make it an account stated does not apply." 1 Cyc. 382, 383. The allegation in the answer is not sufficient to base the claim or defense of "account stated." 1 Cyc. 389. "A former settlement is no bar to an action for account unless fully and fairly made." Alexander v. Solomon, 15 S.W. 906; Story Eq. Jur., secs. 465, 1277c, 468; In re Hayter, 32 W. R. 26, 16-8; Hilliard v. Talford, 4 C. D. 389; 1 Perry on Trusts, (5 Ed.), sec. 229; Michond v. Girod, 4 How. 561; Trevelyan v. Charter, 11 Cl. & Fin. 714; Pyrn v. Byrne, 5 Ves. 681; Maloney v. L'Estrange, Beat. 406; Carpenter v. Canal Co., 35 Ohio St. 307; Prevost v. Gratz, 6 Wheat. 481; Morse v. Hill, 136 Mass. 60. (11) Defendants should be charged with compound interest, with annual rents, for the rents collected from the Jefferson avenue property, which ought to have been turned over to plaintiff. Cruce v. Cruce, 81 Mo. 686; Bobbs v. Bobbs, 89 Mo. 421; 1 Perry on Trusts, sec. 471; In re Murdock & Dickson, 129 Mo. 499; Pullis v. Sommerville, 218 Mo. 639. (12) On an appeal from a decree in equity, it is the duty of the appellate court to consider all the evidence and apply the law thereto. It is a trial de novo. Robertson v. Shepperd, 165 Mo. 360; Sheridan v. Nation, 159 Mo. 27; Dunivan v. Dunivan, 157 Mo. 157; Hoeller v. Haffner, 155 Mo. 597; Hall v. Harris, 145 Mo. 620; Lins v. Leonhardt, 127 Mo. 271; Van Franck v. Road Co., 89 Mo.App. 460; Trimble v. Wollman, 62 Mo.App. 548; Gunby v. Rogers, 42 Mo.App. 465; Nichols v. Nichols, 39 Mo.App. 293. (13) The appellate court will defer considerably to the findings of the trial court where the evidence is oral, and the case had been decided promptly after the evidence is introduced; but not so where the case has been held up for many months after the evidence is concluded. Meyers v. Schuchmann, 182 Mo. 177; Kinney v. Murray, 170 Mo. 707; Becht v. Becht, 168 Mo. 525; Garter v. Dilly, 167 Mo. 564; Hoeller v. Haffner, 155 Mo. 589; Strine v. Williams, 159 Mo. 582, 585.

Jones, Jones, Hocker & Davis for respondents.

(1) While on appeal cases in equity are considered substantially de novo, at the same time the appellate courts will greatly defer to the conclusions reached by the trial court and will not disturb its findings unless they are manifestly wrong. Becht v. Becht, 168 Mo. 528; Chance v Jennings, 159 Mo. 560; Dennison v. Dennison, 157 Mo. 160; Durlings v. Potts, 118 Mo. 530; Johnson v. Duer, 115 Mo. 375; Barlow v. Elliott, 56 Mo.App. 378. (2) A cause must be disposed of on appeal upon the same theory as that assumed at the trial by the parties. Benton Co. v. Zeitler, 182 Mo. 265; B. & L. Assn. v. Obert, 169 Mo. 507; Kilpatrick v. Wiley, 197 Mo. 171; Williams v. Lobban, 206 Mo. 487; St. Louis v. Wright, 210 Mo. 491; Mitchell v. Railroad, 125 Mo.App. 11; Bank v. Zook, 133 Mo.App. 604. (3) An agent may renounce his agency at any time where the agency is indefinite in duration, even if he has "not accomplished prosperously what he has undertaken." The agent's reasons for termination of the agency are of no consequence. It may either be because he is unable to accomplish the purpose of the agency or because of the...