text:
    PENNOWFSKY v. COERVER, Appellant.
    Division One,
    June 29, 1907.
    1. NO ABSTRACT: Dismissal. Where there is no certified copy of the record entry of the judgment appealed from, showing the •term and day of the term, month and year when the same was rendered, nor, in lieu thereof, any perfect transcript or abstract showing any judgment or order granting an appeal; nor any abstracted record entry showing a motion for a new trial filed at a given date and a given term, or overruled, nor a bill of exceptions filed in vacation or time given to file in vacation, the appeal will he dismissed.
    2. RECORD ENTRIES: In Bill. Record entries proper have no place in the hill of exceptions. The hill is filed after the judgment and entry of filing of motion for new* trial, and entry of the ruling of the court thereon, and of the order granting the appeal, and of the order for time in which a hill of exceptions may he filed, are all spread upon the record, and hence those entries and orders have no place in the bill, and are not preserved for consideration if found only therein and the printed abstract thereof. And being absent from the record proper, the appeal will he dismissed.
    Appeal from Cape Girardeau Court of Common Pleas. —Hon. John A. Snider, Judge.
    Appeal dismissed.

      Robert L. Wilson for appellant.

      Wilson Cramer for respondent.
   LAMM, J.

This was a suit in common form in ejectment in the Cape Girardeau Court of Common Pleas to recover possession of part of two lots “in range D” in the city of Cape Girardeau, 43 feet front by 168 feet in depth, described by metes and bounds. Ouster is laid as of the 29th of August, 1901.

The answer raised legal defenses, only, to-wit: a general denial, a plea of defendant’s right to possession under a lease from a landlord who was plaintiff’s grantor, and, hence, the common source of title, and full performance of the terms of the lease on defendant’s part.

The replication was a general denial.

At a trial to a jury, semble, the verdict was in favor of plaintiff, and defendant ostensibly appealed; but through inadvertence he has made it impossible for us to consider his appeal, and it must be dismissed for reasons. For instance:

(1) Because (imprimis) there is here no certified copy of the record entry of the judgment appealed from, “showing the term and day of the term, month and year upon which the same shall have been rendered, together with the order granting the appeal,” as required by section 813, Revised Statutes 18991. Nor is there here, in lieu thereof, any perfect transcript or abstract showing any judgment whatever or order granting an appeal.

(2) Because other necessary record entries are absent, in that there is no record entry abstracted showing a motion for a new trial filed at a given date and a given term; in that there is no record entry abstracted showing such motion overruled; in that the abstract shows the bill of exceptions was filed in vacation, and there is no record entry showing that time was given to file said bill of exceptions. These things each and all do appear in the bill of exceptions; but a bill of exceptions is settled and filed, in natural sequence, after the foregoing things are spread of record in the record proper. Its office is to make what was not of record, a part of the record. It is evidence of nothing except what belongs in it, even after it is vitalized by being allowed, signed and filed. A bill of exceptions is, what its very name imports, a receptacle for exceptions and is not a fit legal vessel to hold matter belonging to the record proper; hence, a recital in snch bill cannot be held evidence of snch matter, secundum artem. [Bick v. Williams, 181 Mo; 526; State v. Ryan, 120 Mo. 88; Webster County v. Cunningham, 101 Mo. 642; Western Storage & Warehouse Co. v. Glasner, 150 Mo. 426, and cases cited; Butler County v. Graddy, 152 Mo. 441; Hogan v. Hinchey, 195 Mo. 1. c. 533; Harding v. Bedoll, 202 Mo. 625; Greenwood v. Parlin & Orendorff Co., 98 Mo. App. 407; sec. 728, R. S. 1899. See, generally, authorities collated by the learned annotator in Ann. Stat. 1906, p. 784, et seq.]

With patience, line upon line and precept upon precept, we have steadily pointed out what the “record proper” is, and the mandatory requirements of statutes and of appellate rules calling for an abstract of the record proper, as such. Over and over again it has been pointed out that no part or parcel of the record proper has lot or place in the bill of exceptions; and if put into such bill and left out- of the abstract of the record proper, it is a fatal infirmity. In saying so, our Yea has been yea —- our Nay, nay, to the crossing of a “t” and the dotting of an “i.”

Peradventure, by continued iteration and reiteration, this bread cast upon the waters will return to us in many days in the form of orderly obedience to positive law, so that the unhappy result to our brethren of the bar of a case riding off on anything short of its merits will come to an end, or grow small by degrees. So mote it be.

The appeal is dismissed.

All concur.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    MONTGOMERY v. HUNDLEY, Appellant.
    Division One,
    June 29, 1907.
    1. RESCINDING CONTRACT: Agent Selling His Own Stock. If defendant was plaintiff’s agent to purchase stock of a corporation and in fact sold to him his own stock, and withheld from him the fact that he was the owner, plaintiff has the right to rescind the sale and recover from defendant the full purchase price with interest.
    2. -: -: No Damages. Nor is plaintiff’s right to rescind the sale, in such case, impaired by the fact that the sale was beneficial to him. Such contracts are against public policy.
    3. -: -: Option: By-laws. A clause in the by-laws of a corporation requiring the record owner of stock “to offer it and give the preference to this corporation before selling the same to a new stockholder,” gave an option to the company on the stock of a stockholder who wished to sell, but not to another stockholder. And such by-law is of little value in establishing the relation of principal and agent between plaintiff, who purchased the stock of a retiring stockholder, and defendant, another stockholder, who sold him that stock.
    4. -: -: Option: Evidence of Defendant’s Ownership. A stockholder, who wished to retire on account of his wife’s ill-health, offered his $3,750 of stock to the other two stockholders for $5,750. They were not able to buy, and he agreed that one of them (defendant) might sell it and have all he could get over $5,750. Defendant then wrote to plaintiff that “one of” the stockholders “wishes to sell his fourth interest; will take $7,000 to buy him out.” On being assured by defendant that there was nothing in the deal for him, plaintiff bought the stock for $7,000, sending part of the money to defendant, and the balance to the retiring stockholder, receiving the certificate of stock assigned to him by such retiring stockholder. Subsequently defendant wrote plaintiff that the retiring stockholder did not give him “$1,200 to make the sale. I do not mind telling you that I got $1,250 out of it, but he did not give it to me. I had an option on his stock at $5,750, and you bought it at the lowest possible dollar that would buy it. He offered it to me by virtue of a clause in our by-laws which provided that he had to give me the opportunity to buy it before offering it to any one else. He made me the price and I immediately took an option upon it, . intending to buy it myself, if I could not find some satisfactory person to take it. I was not in shape at the time to buy it myself and thought you would be glad to get an Investment of this kind.” This was the only option developed by the evidence. The by-laws did not require an offer to sell to be first made to other stockholders, but to the corporation. Plaintiff prior to the sale did not talk about it to the retiring stockholder, who testified that he had an arrangement with defendant by which he could take the stock and handle it for him at $5,750, and defendant denied he was the plaintiff’s agent, but testified that he did not go to the retiring stockholder and make the trade with him after he talked with plaintiff, but stated “the trade was made before I sold it” to plaintiff. Held, first, that the evidence was sufficient to sustain the verdict of the jury that defendant held an option on the stock; second, that it was an option personal to him and not to the corporation; third, defendant by paying $5,750 to thé retiring stockholder was entitled to his stock; and, fourth, this made him such an owner of the stock as entitles plaintiff to have the sale rescinded and recover the price paid, with interest.
    5. -: -: Definition of Option. The obligation, by which one binds himself to sell, and leaves it discretionary with the other party to buy, is what in law is termed an option, which is simply a contract by which the owner of property agrees with another that he shall have the right to buy the property at a fixed price within a certain time. If defendant had a valid and subsisting option to buy a fellow stockholder’s stock at a stipulated price, he had the right to accept and perform the terms of the option, and then his title to the stock became complete; and when within the life of the option he sold the stock to plaintiff and had the stockholder transfer it directly to plaintiff, that was equivalent to going to the stockholder and accepting the terms of the option, taking the transfer to himself, and then transferring it to plaintiff; and if he withheld the facts from plaintiff, he was such owner of the stock as entitles plaintiff to rescind the sale.
    Appeal from Bncbanan Circuit Court. — Mon. A. M. Woodson, Judge.
    Akkibmed.

      Culver £ Phillip for appellant.
    (1) The court erred in refusing to give the demurrer to the evidence asked by defendant at the close of plaintiff’s testimony, and at the close of all the evidence. There is no allegation in the petition and there is’ no evidence in the record that plaintiff bought the stock from defendant. All of the evidence is that plaintiff purchase the stock from Shackelford. In fact the only instruction asked by plaintiff and which the court gave, does not require the jury to find that plaintiff bought the stock from defendant, in order to authorize a verdict for plaintiff, but it is drawn on the theory that if defendant was plaintiff’s agent in the purchase of the stock, and he falsely represented to his principal that $7,000 was the least money that would buy it, and concealed the fact that he had an option on it, and received $1,250 of the proceeds of the sale, then .plaintiff was entitled to recover from his agent, the defer dant, $7,000, the purchase of the stock. This is not an action at law or in equity by a principal to recover from his agent profits secretly made by the latter, in the prosecution of the business of the principal. This is an action to rescind a sale of stock purchased from Shackelford, and to recover the purchase price on the ground that the purchase was induced by the false representations of the defendant. Such an action will not lie against defendant, whether he was plaintiff’s agent or not. It requires no authorities to support the self-evident proposition that in order to rescind a sale induced by fraud, and recover the purchase money, the purchaser must sue the seller. If the purchaser was induced to purchase by the fraudulent representations of his own agent, this would not give him the right to maintain an action against his agent to rescind the sale and recover the purchase money from the agent, as plaintiff seeks to do in this case; though, of course, the agent, in such circumstances, would be liable to his principal in an action for damages for any loss sustained, or for any profit made by the agent above his' compensation. McMillan v. Arthur, 48 N. Y. Super. Ct. 424. (2) A finding that defendant was in fact the owner of the stock, and that he, in fact, sold it to plaintiff through Shackelford, is not sustained- by any substantial evidence. Without such a finding the verdict cannot stand.

      Charles F. Strop and Eugene Silverman for respondent.
    A person acting as purchasing agent for another cannot buy his own property in behalf of his principal. And it makes no difference that the agent acts in good faith or that the transaction was not detrimental to the principal, or even that the principal was benefited. Such contracts are opposed to open, upright and fair dealing and against public policy. Conkey v. Bond, 36 N. T. 427; Taussig v. ITart, 58 N. Y. 429 ; Pegram v. Charlotte, 84 N. C. 696, 37 Am. Rep. 643; Davis v. Hamlin, 108 111. 39; Tewksbury v. Sprann, 75 111. 188; Ely v. Hanford, 65 HI. 267; Everhart v. Searle, 71 Pa. St. 260; Rice v. Wood, 133 Miss. 133; Bisshoffsheim v. Blatzer, 20 Fed. 892; Frieshenhann v. Bushnell, 47 Minn. 446; Conner v. Block, 119 Mo. 134.
   GRAVES, J.

This is an action to rescind a contract of sale and to recover $7,000, the amount of the purchase price involved in such sale. The facts are these: The Union Mercantile Company was a corporation, whose principal place of business was at St. Joseph, Missouri. It was engaged in the mercantile business and had stores at St. Joseph, Missouri, Topeka, Kansas, and Lincoln, Nebraska. Its capital stock was $15,000, divided into 150 shares of $100 each. Of these shares the defendant Hundley owned seventy-five, or one-half of the total; J. F. Shackelford owned thirty-seven and one-half, or one fourth, and C. K. MeKnight thirty-seven and one-half, or one fourth. A part of one of the by-laws of the corporation reads as follows :

“Any stockholder desiring to sell his stock must offer it and give the preference to this corporation before selling the same to a new stockholder.”

It appears that J. L. Shackelford, owing to the illness of his wife, desired to dispose of his thirty-seven and one-half shares of stock, and go west for his wife’s health. He offered the stock to Hundley and McKnight for $5,750. Defendant said he was not able to purchase at that time, but. would sell the stock as it was worth more than the price asked by Shackelford.

He and Shackelford then agreed that defendant might sell said stock and have all he could get over the $5,750. At this juncture in affairs, the defendant, who was a business friend of the plaintiff, wrote the plaintiff the following letter:

“St. Joseph, Mo., 4-23, 1903.

“Mr. Montgomery,

“Maryville, Mo.,

“Dear Sir:—

“Would you like to buy in a mercantile business here that is ‘gilt edge’? I have one-half — the other half is owned by two parties active in the business. One of them wants to sell his one-fourth interest. Will take $7,000 to buy him out —not necessarily all cash.

“Will make you 40 or 50 per cent at least on your money.

“If interested will write you more fully. It’s a ‘hummer.’ ' “Tours truly,

“Woodson Hundley.”

In a few days after the receipt of this letter the plaintiff went to St. Joseph, looked through the stock there, saw some statements as to the business, furnished by the bookkeeper, and after asking Hundley if $7,000 was the least money that would buy the stock, and being assured by Hundley that it was, and further assured that said sum was the least money that would buy the stock, and that there was nothing in it (the deal) for Hundley, he then told Hundley to buy the stock for him. Plaintiff then returned home, and later sent part of the money to Hundley and still later the balance to Shackelford, receiving the certificates of stock assigned by Shackelford to him.

In evidence and upon which plaintiff largely relies is the following letter:

“St. Joseph, Mo., May 28th, 1908.

“Mr. J. F. Montgomery,

“Maryvffle, Mo.

“Dear Sir:—

“In reply to yours of 5 — 26, contents very carefully noted. It is evident to my mind that you have not looked into this business carefully enough to satisfy yourself as to the good points of it and on account of the stand you have taken regarding it, I do not see any use arguing the good points with you. However, I will make one explanation regarding the statement you made in your letter, that Mr. Shackelford gave me $1,200 to make the sale. This is false.

“I do not mind telling you that I got $1,250 out of it, but he did not give it to me. I had an option on his stock at $5,750 and you bought it at the lowest possible dollar that would buy it. When he first offered his stock for sale, he offered it to me by virtue of a clause in our by-laws which provided for such an arrangement, he had to give me or McKnight the opportunity to buy it before offering it to any one else.

“Mr. Shackelford was anxious to get out and apparently did not know or care anything about the value of this stock. He made me the price and I immediately tools: an option upon it, intending to buy it myself, if I could not find some satisfactory person to take it. I was not in shape at the time to buy it myself and thought you would be glad to get an investment of this hind. I cannot see that yon have any complaint to make regarding the price. The stock is worth more than yon paid for it and I can prove it.

“Now pnt yourself in my place and see if I have done anything wrong. When I bought in that business myself, I paid one of the parties a bonus and knew it at the time I bought in, and I bought in there exactly on the same basis you did. However, if you are not satisfied I will see that you get out and get out whole. It will not be necessary for you to lose any money on the deal, but I want you to understand that I have misrepresented nothing to you about that business, to the best of my knowledge. Whatever I told you about it I believed was right and wish you would look up my record and see if I am in the habit of doing anything of that kind.

“I feel that you have hardly done me justice in this thing in jumping at conclusions the way you have, and at the same time understand that through your lack of familiarity with the business, and lack of confidence in us, with perhaps some influences at work, which are unjust, you have hastily made up your mind to sell out. This, I repeat, is all right and I am willing to help you out at the very earliest time possible, and will see that you lose nothing by this deal. At the same time I say this to you, I ask you to rest assured that "there is absolutely no ill-feeling in this matter whatever, on my part, and that I only wish to do what is right toward you, and see you satisfied.

“I cannot do anything with this matter this week, however, as we are invoicing, but will let you hear from me next week, something more definite. With best regards, I am, Yours Very Truly,

“S. W. Hundley.”

The stock was shortly thereafter tendered back to defendant, the purchase price demanded of him and upon September 5, following, this suit was instituted.

There are allegations in the petition of fraudulent representations, other than the statement made "by defendant that there wasn’t a cent in the trade for him. Of these, however, there is no evidence. Plaintiff testified that defendant was his agent to buy the stock, and that he had bought goods of defendant’s father for a great number of years, and had an intimate business acquaintance with the defendant for two or three years, and relied fully upon defendant’s statements. For the defendant a part of the evidence tended to show that he had no other option on the stock in question than the one provided for in the by-laws of the corporation.

J. L. Shackelford,'one of defendant’s witnesses, on cross-examination, testified: “Q. You had an agreement with him (Hundley) that he could take this stock and handle it for you at $5,750? A. Yes, sir.”

By defendant it was also shown that defendant had a copy of the by-laws before he directed the purchase of the stock. Defendant also testified that he did not buy the stock for plaintiff and that he did not tell plaintiff that he (defendant) was not interested in the stock in any way, and was getting nothing out of it. The defendant among other things, says:

“Q. Did Mr. Shackelford offer the stock to you, pursuant to the terms of the by-laws? A. He did.

“Q. Did you buy it. A. No.

“Q. Why didn’t you buy? A. I didn’t have the money to buy it at the time.

“Q. Now wha,t arrangement, if any, was that made between Shackelford and yourself regarding the stock? A. Mr. Shackelford seemed very anxious to get out, and I told him that I thought I could get a better price for it, that I thought he was selling the stock entirely too cheap, and I thought I could get more money for it and I asked him if he would allow me to have all I could get over that price; I looked into the business and I found that' I thought that seven thousand dollars would be a reasonable price for it, and I put that price on the stock myself, and the arrangement with Mr. Shackelford was, that I was to sell this stock for him and was to make whatever price on it I wanted to, as long as I got him the amount of money he was asking for it. He realized and said at the time he knew he was selling the stock cheaper than it was worth.”

And on cross-examination the same witness, says:

££Q. You never did tell Montgomery that you were making any commission out of this until after this was over? A. No.

“Q. You concealed that fact "from him, didn’t you? A. Well, I didn’t tell him.

“Q, It was your purpose to keep him from knowing that fact, wasn’t it? A. I did not think it was necessary to the transaction.

“Q. You didn’t think so. You did not think it worth while to tell him, but you did purposely keep it from him, didn’t you? A. If you want to construe it that way. . . .

££Q. You say it was not convenient for you to handle the stock at $5,750? A. Yes, sir.

“Q. You say he made a price for the stock and you immediately took an option on it to buy it yourself. You didn’t intend to buy it? A. We did at first. Mr. McKnight and I talked of buying it.

£ £ Q. You had no intention of buying it at the time you got Montgomery on the string? A. No.

<£ Q. Now, Mr. Hundley, at the time you got Montgomery on the string to make this trade with him, at the time you begun to trade with Montgomery or commenced talking with him, you had given up the intention of buying it for yourself, had you ? A. In one way I had and in one way I had not.

“Q. Which way had you and which way hadn’t you? A. I thought I could g’et more money for the stock than that, and I would not stand by and see the stock sold for less than seven thousand dollars; that I would buy it for myself before I would see it sold for less money.

“ Q. You say that Shackelford paid you a commission of $1,250. A. He did. . . .

“Q. Now, you said your by-laws made it obligatory upon him to offer this stock to you? A. Yes, sir.

“And then you told him that it was not convenient for you to buy it, didn’t you? A. Yes.

“ Q. And afterwards you and he made another arrangement independent of the by-laws that you would have whatever you could get of this stock over and above $5,750. A. Yes, but it was my option on it.

“Q. That arrangement was not pursuant to the by laws. The by-laws provided, Mr. Hundley, that you should have a right to acquire it at a certain price, or should have the first offer of it? A. Yes, sir.

‘ ‘Q. Now you say you told him that you could not avail yourself of that option, and that afterwards you and he made an arrangement by which you were to have all over and above $5,750' that you got for the stock? A. Yes, sir. . . .

‘ ‘ Q. Mr. Montgomery never talked to Mr. Shackelford about this sale at all, as far as you know, did he? A. No, not that I know of.

“Q. You say that you did not act as Montgomery’s agent? A. I didn’t see how I could.

“Q. Well, you did not agree that you would? A. No.

“Q. And you didn’t agree that you would buy it for him? A. No.

“Q. Who did act for him? You went and made the trade with Shackelford after you talked with Montgomery, did you not? A. No I did not. The trade was made before I sold it to Mr. Montgomery.

“Q. The trade was made before? A. That was my arrangement with Mr. Shackleford; I simply notified Mr. Shackelford that Mr. Montgomery had said that he would buy the stock and would send the money along in a few days.”

This sufficiently states the evidence. The cause was submitted to the jury and a verdict returned for plaintiff in the sum of $7,186.66, upon which judgment was entered, from which judgment, after taking the necessary preliminary steps, defendant appeals to this court. Points made will be noticed in the course of the opinion.

I. Plaintiff’s recovery was grounded on the theory that defendant was his agent for the purpose of purchasing this stock and sold to plaintiff stock which defendant owned. The suit is not bottomed upon any other theory. It is not an action to recover secret profits, nor an action for damages based purely upon deceit and fraud. It is an action to rescind a sale and recover the purchase price. If defendant was agent of plaintiff to1 purchase the stock and in fact sold to plaintiff his own stock, then there can be no question of plaintiff’s right to rescind the sale and recover the full purchase price, with interest. This doctrine is firmly fixed by the adjudicated cases. In a very similar case, Conkey v. Bond, 36 N. Y. 1. c. 429, it is said:

“There is no view of the facts in which the transaction can be upheld. He stood in a relation to his principal which disabled him from concluding a contract with himself, without the knowledge or assent of the party he assumed to represent. He undertook to act at once as seller and purchaser.- He bought as agent, and sold as owner. The ex parte bargain, thus concluded, proved advantageous to him and very unfortunate for his principal. It was the right of the latter to- rescind it, on discovery of the breach of confidence. It is not material to inquire whether the defendant had any actual fraudulent purpose. The making of a purchase from himself, without authority from the plaintiff, was a constructive fraud, in view of the fiduciary relation which existed between the parties.”

In Tewksbury v. Spruance, 75 Ill. 1. c. 188, the doctrine is stated in this language: “In regard to the law involved in this case, there is no ground for dispute.' An agent or broker employed to purchase for his principal cannot become the seller without notice to the principal. If appellees, as commission merchants, were employed by appellants to go upon the market and buy for them a certain quantity of wheat for cash, this would not authorize appellees to turn over to appellants wheat held by them, even if they charged no more than the market price, unless the fact was disclosed to the principals.”

Nor does it militate against the right to rescind ’ the contract and recover the contract price, that the sale was beneficial to the principal and worked no damage to him. Such contracts are against public policy. In Everhart v. Searle, 71 Pa. St. 1. c. 260, the Supreme Court of Pennsylvania, through Thompson, C. J., says: “There was plausibility and seeming force in the argument that as Flagg, the plaintiff’s .principal in the sale, was not injured by the arrangement with the defendant, there was nothing wrong in making that arrangement.. This is specious, but not sound. The transaction is to be regarded as against the policy of the law, and not binding upon a party who has the right to object to it. £It matters not, ’ it is said, page 210 of Hare and “Wallace’s Notes, 1 Lead. Cases in Eq., ‘that there was no fraud meditated and no injury done; the rule is not intended to be remedial of actual wrong, but preventative of the possibility of it.’ This was said of ‘any one who acts representatively, or whose office is to advise or operate, not for himself, but for others.’ ”

And again, in Minnesota, Friesenhahn v. Bushnell, 47 Minn. 1. c. 446, the doctrine is tersely stated, thus: “Loyalty to his trust is the first duty of am agent, and he must not put himself in relations antagonistic to' his principal. An agent authorized to purchase may not purchase from himself without his principal’s consent; and, if he does, the principal, upon ascertaining the fact, may repudiate; and it makes no difference that the principal was not injured.”

Along the same line, our own court, in case of Connor v. Black, 119 Mo. 1. c. 134, puts the proposition thus: “The law is, that a broker or commission merchant has no right to buy from, or sell to his principal, without his knowledge and consent, and that in such case the fact that the price paid was the fair, market value, and that the transaction was a fair one and free from fraud or any undue advantage, is no legal justification or excuse.”

So that it would appear that if the facts of this case brings it within this principal of law, there is no question of the plaintiff’s right to rescind the sale and recover the purchase price, and the judgment should be affirmed, if no errors appear in the course of the trial. The application of this law to the facts we discuss next.

II. What was defendant’s relation to this stock? That he was not absolute owner is clear. It had not been transferred to him on the books of the corporation" and did not stand in his name. By the by-law of the corporation, Shackelford, the record owner of the stock, had “to offer it and give the preference to this corporation before selling the same to a new stockholder.” This in our judgment gave an option to the corporation but not to Hundley, the defendant. This by-law is of but little value to plaintiff’s case.

The evidence shows that it had been offered to the corporation and to the other two stockholders at $5,750, but the offer was not accepted.

The only things that show any interest in this stock by defendant, appear in this admission in the letter of May 28th:

“Mr. Shackelford was anxious to get out and apparently did not know or care anything about the value of this stock. He made me the price and I immediately took an option upon it, intending to buy it myself if I could not find some satisfactory person to take it.”

And in his further admission on the witness stand, as follows:

“Q. And afterwards you and he made another arrangement independent of the by-laws that you would have whatever you could get out of this stock 'over and above $5,750? A. Yes, but it was my option on it.

“Q. That arrangement was not pursuant to the by-laws. The by-laws provided, Mr. Hundley, that you' should have a right to acquire it at a certain price, or should have the first offer of it? A. Yes, sir.

“ Q. Now you say you told him you could not avail yourself of that option, and that afterwards you and he made an arrangement by which you were to have all over and above $5,750' that you got for the stock? A. Yes, sir. . . .

“Q. Mr. Montgomery never talked to Mr. Shackelford about this sale at all, as far as you know, did he? A. No, not that I know of.

“Q. You say you did not act as Montgomery’s agent. A. I didn’t see how I could.

“Q. Well, you did not agree that you would? A. No.

“Q. And you didn’t agree that you would buy it for him? A. No.

“Q. Who did act for him? You went and made the trade with Shackelford after you talked with Montgomery, didn’t you? A. No I did not. The trade was made before I sold it to Mr. Montgomery.

“Q. The trade was made before? A. That was my arrangement- with Mr. Shackelford; I simply notified Mr. Shackleford that Mr. Montgomery had said that he would buy the stock and would send the money along in a few days. ’ ’

And the statement of Shackelford on the witness stand in this language:

“Q. You had an agreement with him (Hundley) that he could- take this stock and handle it for you at $5,750? A. Yes, sir.”

The question now is; does this show that Hundley had an option, upon this stock, and if so, is an option such an ownership as will bring into operation the rule of law suggested in our paragraph one?

We think that these admissions are sufficient to sustain the verdict of the jury upon the question that defendant held an option upon this stock. That it was an option personal to him and no-t to- the corporation. His letter in plain terms admits that he had an option. His language on the witness stand, as .an admission, is practically as strong. He says- in effect that after he made the trade with plaintiff he did not have to talk with Shackelford because he and Shackelford had made their trade before. The language above quoted, “The trade was made before I sold to- Mr. Montgomery,” is hardly susceptible of any other construction. In other words, Hundley had an option upon this stock at $5,750, and by paying that snm was entitled to the stock. From the admissions we have no hesitancy in saying that Hundley had an option on the stock. Does this make him such an owner as would bring him within- the meaning of the rule of law first above discussed?

The term “option” has been thus defined: “A right of choice or election; sometimes applied- to contracts whereby one purchases, the right for a certain time, at his election, to- demand and receive or to- deliver property at a stated price. ’ ’ [Cyclopedia Law Dictionary, p. 654.]

In Black v. Maddox, 104 Gra. 1. c. 162, the term is defined in this langauge: ‘‘ The obligation, by which one binds himself to sell, and leaves it discretionary with the other party to buy, is what is termed in law an option, which is simply a contract by which the owner of property agrees with another person, that he shall have the right to buy the property at a fixed price within a certam time. ’ ’

'When defendant admitted that he had an option, it will be presumed that it was a valid one and one enforceable at law or in equity. We use the word option in its legal sense and as distinguished from a mere offer to sell. This distinction is clearly drawn in Ide v. Leiser, 10 Mont. 5, where the cases are collated. In a case where there was a valid option upon stock, it has been held that equity will enforce the specific performance of the contract, which became a completed, valid and mutual contract by an acceptance of the offer contained in the option. [Watkins v. Robertson (Va.), 54 S. E. 33.]

It has likewise been held, in cases of options upon real estate, that even before the acceptance of the terms of the option, but during the life of the option, the offeree had an equitable title to the premises; that the offerer held the property in trust for the offeree, and the offeree held the "price in trust for the offerer. [21 Am. and Eng. Ency. Law (2 Ed.) 933, 934, and cases cited. See, also, House v. Jackson, 24 Ore. 89; Railroad v. Spencer, 156 Pa. St. 85; Herr v. Day, 14 Pa. St. 112.]

Many cases, including Mers v. Insurance Co., 68 Mo. 127, are to the contrary, and we think the doctrine of these last-mentioned cases is the better doctrine. Of course, if there has been an acceptance of the offer contained in the option, then we have a completed contract, and the question presented would he a different one, hut not one involved in the case at bar. The cases above mentioned are real estate options. All we have in the case under consideration is an admitted option upon personal property. We find no ease declaring the interest of the offeree in such property prior to the acceptance. If defendant had a valid and subsisting option, which by his broad admission in the letter of May 28th, he must have had, and is presumed to have had, then he had a right to accept and perform the terms of the option, at which time his title to the stock would become complete. If the peculiar facts were such as would enlist the discretion of the chancellor he might have specific performance, but at all events he would have his remedy at law against the offerer, Shackelford, if there were a refusal to transfer the stock.

Defendant says the trade had been made with Shackelford before he sold to plaintiff. He no doubt meant by this that he had procured the option from Shackelford. The terms thereof, further than the stipulated price, do not appear.

Shackelford, in good faith, could not sell the property to another during the life of this option. During the period of this option, Shackelford had parted with his right to sell. [Ide v. Leiser, supra.] Under these circumstances this property was tied up, during the life of this option, in the hands of defendant. He could, by his word, dictate the course of the devolution of its title. When he sold it to plaintiff and had Shackelford transfer it direct to plaintiff, at his direction, it was equivalent to going to Shackelford and accepting the terms of the option, taking the transfer to himself, and then transferring it to plaintiff. To our mind this admitted option under the stock sold creates such a relationship between plaintiff and defendant as brings this case within the doctrine of law first announced in the course of this opinion. Defendant then admits that he withheld the facts from plaintiff. Under snch circumstances the plaintiff had a right to rescind the contract and recover the purchase price, and this too without proof of further misrepresentations. In such case, it is wholly immaterial whether or not actual damage was suffered. Such contracts contravene public policy, and had the stock been worth twice the amount paid for it, the right to rescind would yet exist.

III. The instruction given for the plaintiff presented the case to the jury upon the theory hereinabove discussed, and presented it as fairly as the defendant could ask. We have gone over the several instructions asked by defendant and refused by the court. If our views of the law of this case are correct, they were properly refused. There was substantial evidence from which the jury could find that defendant was plaintiff’s ag’ent and that he held an option on the stock. It therefore follows that the judgment should be affirmed, and it is so ordered.

All concur, except Woodson, J., who tried the cause nisi, and does not sit herein.


author: LAMM, J.

text:
    AMI C. STITT et al. v. KATIE A. STITT, Appellant.
    Division One,
    June 29, 1907.
    1. SUBSTITUTION: Fraudulent Sale of Testate’s Property: Executrix as Purchaser. Where the executrix brought • about the sale of land, burdened with a deed of trust by the trustee, in order that she might become the purchaser thereat, and bid the amount of the debt, and became the purchaser, the decree setting aside the sale, in so far as it substitutes her to the rights of the mortgagee under the deed of trust, and to the extent that she lifted that burden from the estate, does equity.
    2. ADMINISTRATOR’S SALE: Under Mortgage: Purchase by Executrix: Fraudulent. The husband died leaving one hundred and twenty acres of land. By will he gave eighty acres to his wife-for life and in that she had, besides, a homestead. The other forty was encumbered with a mortgage for five hundred, dollars and as to that he died intestate, leaving other debts amounting to seven hundred and fifty dollars, with no personal estate. She obtained an order from the probate court to sell this forty, and was offered fourteen hundred dollars, but asked sixteen hundred dollars, and made no real effort to sell it, and let the order sleep. When the mortgage became due she at once wrote to the mortgagee to sell it under the deed of trust, in order that she might become the purchaser,'and at the sale bought the land for five hundred and fifty dollars. Held, that the executrix, after the order of the court directing her to sell the land to pay the debts, was a trustee in the most exacting sense, and evidently permitted her self-interest to ride down her duty to the estate, which was to use it to pay decedent’s debts, and she will not be permitted to buy the land under such circumstances, leaving her husband’s creditors no way by which to have their claims paid, and the sale is set aside as fraudulent.
    Appeal from Daviess Circuit Court. — Row. J. W. Alexander, Judge.
    Affirmed.

      Bollin J. Britton, Wm. G. Gillihan and Nat. G. Grusen for appellant.
    (1) Plaintiffs have no standing in a court, of equity because defendant, Katie A. Stitt, was the executrix of Jacob A. Stitt and as such could become the purchaser, of lands of which the said Jacob A. Stitt died intestate, when the same was sold under foreclosure of a deed of trust. Section 166, Revised Statutes 1899, prohibiting an executor from purchasing the real estate of an estate, has reference only to probate sales. Dillinger v. Kelley, 84 Mo. 561; Briant v. Jackson, 99 Mo. 585; Walcott v. Hand, 122 Mo. 621; Markwell v. Mark-well, 157 Mo. 326. (2) Inadequacy of price realized at a trustee’s sale is no reason for setting aside the trustee’s deed. Markwell v. Markwell, 157 Mo. 326; Harlin v. Nation, 126 Mo. 97. (3) An executrix is not a trustee of the real estate of her testate, nor a trustee the real estate of which the testator died intestate, for the heirs; and as against the heirs she may purchase for herself at a foreclosure sale. Dillinger v. Kelley, 84 Mo. 567. (4) The executrix has nothing to do with the real estate of which the testator died intestate, but it descends directly to the heirs, except an inchoate right to sell for the payment of debts. Dillinger v. Kelley, 84 Mo. 561. (5) It did not devolve upon 'the executrix to attend the foreclosure sale, and if she had' not and the land had sold to any other purchaser for the price at which she bought it she would not have been liable on her bond to the estate. Therefore, if she attended the sale and bought the land, she did so on the footing of the merest stranger — free to buy, or free to forbear. Dillinger v. Kelley, 84 Mo. 565;

      Leopard é Hichlin for respondent.
    . (1) When appellant obtained the order of sale from the probate court, and had the land appraised, she became a trustee as to that land for the benefit of the estate, and was a trustee at the time she procured the sale by the trustee under the deed of trust, and becoming the purchaser'at a little more than one-third of the reasonable value of said land, the court below certainly was justified in divesting her of all title in and to said land, and vesting the same in the estate of the deceased, reimbursing her for all money paid out by her at said sale by the trustee, with interest, and requiring her to account for rents. (2) The chancellor found as a matter of fact that defendant delayed in making sale of said real estate until it was sold under deed of trust, with the fraudulent intent and purpose of becoming the purchaser thereof, and the chancellor having the witnesses before him was enabled to judge as to their credibility, and this court will defer ■ largely to that finding.
   LAMM, J.

Plaintiffs are the1 parents and brothers and sister's of Jacob A. Stitt, deceased. Defendant is his widow and executrix of his last will and testament. From a decree vesting the title to the northwest quarter of the northeast quarter of section 13, township 61, range 29 (hereafter called tract 0) in Daviess county (subject to a certain right of subrogation in her favor) out of her and into1 the estate of said Jacob A. Stitt, defendant appealed.

No question is made over the pleadings or that the decree is not responsive thereto: In effect and on broad lines, defendant’s contention is that the case is without equity. This contention seeks the facts alone. Attending to them, the case made is this:

Jacob A. Stitt died childless in Daviess county June 2nd, 1901, testate, seized of 120 acres of land, to-wit, the northwest quarter of the northwest quarter of section 18, township 61, range 28 (hereinafter called tract A) and the northeast quarter of the northeast quarter (called tract B.) and the northwest quarter of the northeast quarter (tract C) of section 13, township 61, range 29', leaving the plaintiffs as his heirs of blood kin, and the defendant as his widow.

On the 13th day of March, 1900', he formally executed his will, whereby he requested that his debts be paid out of other personal property rather than his household goods — the latter he bequeathed to his wife. If there was not personal property enough to pay his debts, he directed that a certain sixty-acre tract he then owned, known as the “Mooney Land,” should be sold and that the proceeds of such sale over and above his debts at large and a certain mortgage debt should go to his wife. Tracts A and B he devised to his wife for her lifetime and at her death they went to his lawful heirs (the plaintiffs). The widow was nominated as executrix by the will, which said will was duly probated, and defendant qualified as executrix and took upon herself the burden of administering upon the estate early in 1901.

Presently after making his will, testator sold the “Mooney Land” and purchased tract 0, so that he died seized, as said, of tracts A, B and C. Tract C was encumbered for $500' at the time testator purchased it and remained so encumbered at the date of his death, he dying intestate as to that tract. Said incumbrance was a deed of trust to one Bartlett, trustee, in the nature of a mortgage, securing a note to one Knowles for $500 to become due May 1st, 1903, interest at six per cent, payable annually. Tract B was subject to a deed of trust to secure to the heirs of one of the plaintiffs, Ami C. Stitt, the sum of $825, to become due on his death and to bear no interest. We take it tract A was clear. Decedent resided on tract A with defendant at the date of his death, and the record shows she continued to reside there and claimed tracts A and B as her homestead; but what the value of these tracts is and whether her homestead right has been adjudicated and a homestead set off to her do not appear.

Presently, in May, 1901, the executrix applied to the probate court of Daviess county for an order of sale of tract C to pay debts. At that time there had been allowed against the estate $726 in claims, constituted debts at large and assigned to the first and fifth classes — one of the plaintiffs being a creditor. It seems the widow claimed all the personal property as special dower and as hers absolutely, which claim being allowed, exhausted the personal assets. The probate proceedings ripened into an order of sale in August, 1901. Tract C was appraised at $1250. The petition prayed an order of private sale to be made subject to the Knowles incumbrance, and the resulting order made provision of like effect. Armed with this order of sale, the executrix made some efforts to sell tract C for $1600, to-wit, at $40 per acre. We take it, however, that figure included the mortgage debt — at that time $500 plus a small increment of accrued interest. About this time a coldness sprang up between her and her husband’s people. The record does not bear out the theory that even a half-hearted attempt was made to sell tract C at any figure obtainable. Some of the persons to whom she offered it were willing to buy at, say, $35 an acre; but she excused her refusal to- take less than $40 an acre by standing stiffly on that price as the worth of the land. It seems tract 0 was really worth $40 an acre for a clear title and was rising in value. Not making any sale under the order of the probate court, matters dragged along until in May, 1902. At some time, pending the life of the order of sale, the executrix conceived the plan of allowing it-to lapse, and, instead, to have a sale made under the Knowles deed of trust. That deed of trust provided the principal debt should be due on default of an interest payment. Accordingly, this power was seized hold of, an installment of interest defaulted on May 1st, 1902, and promptly on that day she sent the following letter to Bartlett Brothers of St. Joseph, Missouri (one of said Bartletts being the trustee in the Knowles deed of trust):

‘ ‘ Gallatin, Mo., May 1,1902.

“Messrs. Bartlett Bros., St. Joseph, Mo.

“Dear Sirs:

“My husband, now deceased, purchased certain land -from his brother, Samuel Gr. Stitt, on which you hold mortgage for $500.

‘ ‘ There is no money in the estate with which to pay the interest now due on. this loan (May 1st), and inasmuch as the land covered by this loan must be sold to pay the debts of the estate and such a sale, if made by order of the probate court, would preclude me from becoming a purchaser, because of the fact that I am administratrix of the estate, and I am confident that if I am precluded from taking part in the sale that the land will be sold for less than its value; I request that you proceed to foreclose your mortgage for your client at once. Please conduct tbe matter through Rolíin J. Britton, who is my attorney, and he will see that your interests are taken care of at the sale. If I become the purchaser of the land I shall want to renew the loan.

“Yours truly,

“Katie A. Stitt.”

Prior to the above letter her agent sent the following communication to Bartlett Brothers:

“Gallatin, Mo., April 19, 1902.

“Bartlett, Bros., St. Joseph, Mo.

“Dear Sir: — Yonr letter concerning the ‘Stitt to M. A. Knowles ’ trust deed received, and I am very desirous of having this matter attended to earlier than your reply would indicate.

“The record says that Herschel Bartlett is trustee in this matter.

“It is a matter of much importance to the estate that we should be able to get a proper consideration for this land. It is a hard struggle to save something out of the estate for the widow.

“It is a matter in which I have much concern and I trust that you will kindly assist me and the estate in the matter. I am confident that the loan will be immediately returned to you. Yours truly.”

As the result of these letters, a trustee’s sale was put on foot and then made on June 6th, 1902, at which the defendant purchased tract 0 for $550 — a sum about one-third of the true value of the land and barely enough to pay the mortgage debt, accrued interest and costs. She paid her bid out of her own funds, received a deed, recorded the same and thenceforward planted herself on that deed and claimed tract O as her own property.

The oral testimony, taken in connection with the foregoing letters, showed beyond all question that the sale was brought about by defendant for the purpose of acquiring title, and no other. The trustee testified that his noticeable promptness in advertising on the very heels of a default of an interest installment was to accommodate defendant. It was shown, too, that defendant’s agent superintended the insertion .of the advertisement in the newspaper and arranged the terms. There was no bidder at the sale but defendant. We take it no. attempt was made to. notify any of the plaintiffs or any of the creditors of the change in defendant’s program from the original plan of selling under the court’s order, subject to the deed of trust, to pay debts, to the plan as consummated of selling under the trust deed in order that she might buy. So, too, it appears that defendant ceased all effort to execute the court’s order, as soon as the trustee’s sale got on foot. It seems, however, that one of the plaintiffs, William Stitt, in some way found out the evening before the sale that such sale was on foot, and, without consultation with the other heirs, came to the county seat on the same train with defendant with a purpose of bidding. The trustee was expected at about one o’clock on the Wabash “flyer.” William made inquiries of defendant’s agents and was told that the trustee would be in about one o’clock. In point of fact, however, he arrived at ten. We cannot make out the precise hour the sale was made; but there is uneontradicted testimony that William did not receive satisfactory information about the time of sale. Out of abundant caution, he went to the courthouse where the sale was to take place and danced' attendance there watching until lunch time, when pinched, may be, a bit with hunger, he went to lunch; and during his absence at lunch the sale came off. Going to the office of defendant’s agents later, he found them engaged in writing the trustee’s deed. He ■gives one version of what was said and done there, and defendant’s agents give another; but neither bears on the legal phases of this case, and may be put aside.

When defendant was on the stand the following questions were asked and answers given:

“Q. You claim this land as your individual property? A. Yes, sir.

“By the Court: What has become of the debts? A. They are still unpaid.

Q. Amounting to how much? A. Well, I don’t know exactly.

“Q. This paid the mortgage on the land with the interest and costs, did it not, in full? A. Yes, sir.

“By the Court: I am talking about the unsecured debts; they remain unpaid? A. Yes, sir.

“Q. And you are claiming the other eighty acres as a homestead? A. Yes, sir.”

On her cross-examination the record shows the following:

“ Q. You say in this letter that this land was being sold to pay the debts of the estate and such a sale made by order of probate court would preclude you from becoming a purchaser, because of the fact, ‘I am the executrix of the estate;’ was it your object, when you had the letter written, to have the land sold that you might protect the estate or that you might become the purchaser for your own benefit? A. Well, I thought it was protecting the estate as well as myself, my own interest.

“Q. Was it your intention to have this sold under the mortgage, so that you might become the purchaser in order to bring as much as the land was worth? A. How?

■ “Q. Was it your intention to have the land foreclosed under the mortgage in order that you might become the purchaser and make the land bring asi much as it was worth? A. I don’t understand what you mean.

‘‘ Q. "Was it your intention to make the land bring all that it was worth, when you wrote this letter? A. Yes, sir, that was what I tried to do; I tried to sell it for what I thought it was worth.

“By the Court: Did you make any effort to sell it after it was advertised under this mortgage, under the Bartlett mortgage, did you notify anybody it was about to be sold at that time? A. I don’t remember whether I did or not.

“Q. Did you notify any of the creditors it was going to be "sold under that trust deed? A. I talked with Dr. Dunham, was one person.

“ Q. Was he the party that held the debt? A. He was one of the doctors.

“ Q. One that held the larger claim ? A. I believe his is the largest.

“Did you tell him that you wanted to become the purchaser? A. No, sir, I don’t know that I did.

“Q. What did you tell Dr. Dunham? A. Well, Doctor was anxious that the doctor’s bill should be paid, and we was talking concerning that, and we did not know how the land would sell, who would be here to bid against it, because it had been advertised.

‘ ‘ Q. Did you not tell Dr. Dunham his debt would be paid out of the sale of this land? A. Not at that time.

“Q. When did you tell him? A. I told him that before, I supposed it would be.

“Q.. Did you talk with any of the other creditors about it? A. No, sir.

“ Q. Who are the other creditors besides Dr. Dun-ham? A. There is several.”

The chancellor found in effect that tract C “was amply sufficient to pay all the debts of Jacob A. Stitt, deceased, including the five hundred dollars mortgage debt on said tract and tbe expense of administration.” He found in substance that tbe defendant, as executrix, purposely delayed making a sale under the court’s order until tract C was sold under the deed of trust; and that all this was done “with the fraudulent intent and purpose of becoming a purchaser of said” tract C at trustee’s sale. Having so found, a decree followed that she be divested of title to tract C; that title be vested in the estate of said Jacob A. Stitt; that defendant be subrogated to the rights of Knowles, cestui que trust; that she be reinbursed the amount of her bid at the sale, with interest thereon at the rate of six per cent per annum from the date of sale; and that she account for rents, etc. Such is the case on the record.

Did the chancellor seek equity and do it? We think so. Because:

In so far as the decree subrogated defendant to the rights of Knowles under the deed of trust, no fault can be found with it. They who seek equity must do equity. Decedent was seized of tract C, subject to that encumbrance. His estate, therefore, may only retake the title cum onere. Thereby it is made to stand in its cast off, former shoes, which is well enough. Equity does nothing grudgingly or by halves. Its out-stretched arm corrects, but with loving kindness withal. Hence to the extent the widow lifted the burden of that incumbrance from the estate by her bid, to that extent she should be made whole. The rule of substitution is one of pure benevolence, and the facts and circumstances of this ease afford a typical opportunity for the application of that rule. .

Defendant seeks to bring herself within the doctrine of those cases in which an administrator, owing no duty and having no power to protect the interests of creditors and heirs in the real estate of a decedent and dealing at arm’s length with all concerned, buys at an execution or foreclosure sale. Dillinger v. Kelley, 84 Mo. 561, is a sample of such cases; but that case and no well-considered case, carefully read, promulgates any rule inimical to this decree. Here the defendant was a trustee in the most exacting sense; for she had power and she had duty and had assumed the role of using the power in performance of that duty. Not only was she armed under the order of sale with power to do that duty, but in this instance ability to perform lay at her door, ready to her hand. Not only so, but she was placed in a most delicate and anxious position —a position watched by a chancellor with a solicitous eye, to be weighed and considered with a piercing and distinguishing judgment; because duty and power of performance were set over against self-interest. She set one in one eye and the other in the other. The love of money is the root of all evil; and when one is bound in a confidential relation it is of the very essence of things to see to it that the strident and clamorous voice of self-interest does not drown out the still, small voice of duty and conscience.

“No one” says Williams, J., in Tuggles v. Callison, 143 Mo. 1. c. 536, “will be permitted to purchase and hold property as his own, where he has a duty to perform in relation thereto inconsistent with his position as a purchaser on his own account, and so the cases all hold.” Such purchase becomes of a poisonous character. The temptation existing, the correlative duty, to remove it exists. In the case at bar the executrix could have sold tract C under the court’s order for enough to have paid the mortgage debt, together with all the debts at large of the estate and the cost of administration. With one hand she put away from her this duty, with the other she clutched the gain of violating that duty. Defended by the bulwark of a homestead claim to the residue of the real estate, she left the heirs and creditors to help themselves as best they may, with tract C canceled as a debt-paying factor.

Under the facts uncovered the trustee’s sale was conceived and consummated by her for purposes single to herself. To that end she dallied and coquetted with the situation as executrix under the court’s order of sale until such time as the evil seed she planted and watered could grow to flower and fruitage in the trustee’s deed, thereby doing what she set out to do, viz., appropriate to herself the only debt-paying asset available and making it impossible for her to render a just account of her stewardship. It is needless to cite authority to sustain the self-evident proposition that equity will grant relief by taking away from her á title tainted in that way. That was what the chancellor did below, and what he did meets our approval.

The judgment is affirmed.

All concur.*


author: VALLIANT, P. J.

text:
    ST. LOUIS, MEMPHIS & SOUTHEASTERN RAILROAD COMPANY, Appellant, v. DRUMMOND REALTY & INVESTMENT COMPANY.
    Division One,
    June 29, 1907.
    1. CONDEMNATION: Commissioners’ Award: Payment and Acceptance. The payment into court of the amount of the commissioners’ award in a railroad condemnation case and the receiving of it by the landowner does not preclude him from further litigating before a jury the question of the amount of his compensation. And if the jury awards a larger sum, the fact that the landowner has taken down the amount awarded by the commissioners and deposited in court for him by plaintiff, does not deprive him of the difference between the two awards —that is, an amount equal to the jury’s verdict.
    2 -: -: -: Jury Trial. It is again held that the Constitution does not mean that when the board of commissioners assess damages in a condemnation proceeding their award is final; but that, on the contrary, it means that either party dissatisfied with their award, may, by timely exceptions, have a jury of not less than twelve freeholders to determine the compensation to be paid.

      3. -: Tract as Entirety: Instruction. Where the evidence shows that defendant’s tract of land, consisting of seven hundred and ninety-four acres, located near to and partly within the city of St. Louis, was more valuable as an entirety than if cut up into lots, it is not error to tell the jury that, if they find that to be a fact, notwithstanding parts of the tract are separated from other parts by a public highway, then, in estimating defendant’s damages, they may take into consideration, not only the part , taken for a right of way, but the depreciation, if any, in the market value of the tract as a whole,
    4. -: -: -: Evidence of Entirety. Public roads through the tract are not sufficient to destroy the continuity of the tract or its value as an entirety. And where there is no evidence tending to show that the roads effected such a division of the property into separate bodies that there was nothing left of the entirety feature of the whole tract except the ownership, the jury should not be told not to consider damages to the tract as a whole^
    6. -: Excessive Award. The commissioners awarded defend- • ant nine thousand four hundred and seventy dollars as damages for plaintiff’s right of way through a tract of seven hundred and ninety-four acres of land lying chiefly near to but partly within the city of St. Louis, that had cost one hundred and seventy-five thousand dollars and was improved at a cost of one hundred and twenty-five thousand dollars. Held, that the jury’s verdict of twenty-two thousand five hundred dollars, in view of the evidence, is conservative.
    Appeal from Gasconade Circuit Court. — Hon. Wm. A. Davidson, Judge.
    Aeeirmed.

      L. F. Parker and John W. Booth for appellant.
    (1) Respondent having accepted the damages awarded by the commissioners, there was nothing left for trial by jury, (a) In the appropriation of land for a public use the appropriator may pay the damages awarded by the commissioners, take possession of the land, apply the same to public use, and yet file and prosecute exceptions to the award. This, however, is solely for the reason that it is authorized by the statute. R. S. 1899, secs. 1266 and 1268. But this does not necessarily confer upon the land-owner (whether a corporation or a private person), the right to file and prosecute exceptions after accepting the damages awarded by the commissioners. We have failed to. find any Missouri case bearing on this question which does not appear to over-loot matters vital to the proper interpretation of the statute, or in which the short notes of briefs of counsel, contained in the reports, seem to indicate that all such matters were called to the notice of the court, (b) The question presented in this point is purely a question of the proper construction of sections 1266 and 1268, Revised Statutes 1899, and there is nothing in section 21, article 2, nor in section 4, article 12, of the Constitution, which calls for or authorizes any other construction of said sections. 1266 and 1268 than the very words of the statute of themselves require. Section 21, article 2,' of the Constitution of Missouri of 1875, applies to every possible exercise of the right of eminent domain for a public use, and leaves it to the legislative department of the State to say whether the compensation to the owner shall be ascertained by “a board of commissioners” or by “a jury.” Its language in this behalf is: “ Such compensation shall be ascertained by a jury or board of commissioners of not less than twelve freeholders, in such manner as shall beprescribed by law.” This covers the whole subject — authorizing the Legislature to provide for the compensation being ascertained by commissioners, or by jury (trial). Section 4 of article 12 provides that ‘ ‘ The right of trial by jury shall be held inviolate in all trials of claims for compensation, when in the exercise of the right of eminent domain any incorporated company shall be interested either for or against the exercise of said right. ’ ’ This can not be reduced to the form, ‘ ‘ The right of trial by jury shall be held inviolate in all claims for compensation, when in the exercise of the right of eminent domain any incorporated company shall be interested either for or against the exercise of said right,” because this would be a practical repeal of the words, “in all trials of claims for compensation.” Unless these words, ‘ ‘in all trials of claims for compensation,” be refused any force, section 4, article 12 applies only to trials provided for, by law, under the authority of section 21 of article 2. That is, to such (jury) trials as the statute may authorize — and then only in case an incorporated company may be interested either for or against the exercise of the right of eminent domain. And, inasmuch as at common law the right of trial by jury in such proceedings did not exist, thé legislative powers may under these two sections of the Constitution authorize trial, of the amount of compensation for land taken under the power of eminent domain, by a jury of less than twelve men, in all cases, except when an incorporated company is interested for or against the exercise of said right. The full force of said section 4 of article 12 goes only to secure a trial by a jury of twelve men when the law provides or gives a right to such trial. It has nothing in it compulsorily requiring the law-making power in any case to do more than provide for a board of commissioners to ascertain the compensation to be paid. Rothan v. Railroad, 113 Mo. 132; Lewis on Em. Dom., sec. 531. (2) Though lands separated by public highways, may constitute a single tract, yet unity of ownership is not of itself enough to require them to be treated as one tract in proceedings for condemnation to a public use. There must be something in the facts from which it may appear that each part is so situated or is of such a character that its convenient use with the other parts gives some value to all the parts as an entirety which would not exist with reference to the several parts taken separately. Railroad v. Aubuchon, 199 Mo. 352.

      James L. Mmnis for respondent.
    (1) The receipt by respondent of the sum awarded by the-commissioners as damages did not preclude respondent from the right to have the damages assessed by a jury. Railroad v. Aubuchon, 199 Mo. 352; Bothan v. Bailroad, 113 Mo. 132; Bailroad v. Fowler, 113 Mo. 473; Railroad v. Clark, 119 Mo. 357; Bailroad v. Fowler, 142 Mo. 687; Railroad, v. Donovan, 149 Mo. 103; Bailroad v. McEOroy, 161 Mo. 591; State ex rel. v. Fort, 180 Mo. 103; Bailroad v. Boberts, 187 Mo. 319. (2) Respondent’s instruction 1 was proper. Bail-road v. Aubuchon, 199 Mo. 352; Union Elevator Co. v. Bailroad, 135 Mo. 365 ; 2 Lewis on Eminent Domain (2 Ed.), secs. 465 and 471a; Bailroad v. Shoemaker, 160 Mo. 432. (a) Appellant by its instructions 1 and 2 submitted the case to the jury on precisely the same theory as set forth in respondent’s instruction 1, and will not therefore be heard to complain. Harrington v. Sedalia, 98 Mo. 583. (b) If respondent’s instruction 1 was erroneous in the particular complained of, it was cured by appellant’s instruction 8. Norton v. Kramer, 180 Mo. 536; Perrette v. Kansas City, 162 Mo. 238. (3) Instruction 9 offered by appellant was properly refused. Authorities cited under point 1. Instruction 8, given at the instance of appellant, covers the same subject, and is more favorable to appellant than its refused instruction 9. Casey v. Grill, 154 Mo. 184. (4) The damages awarded by the jury are not excessive. Bailroad v. Knapp-Stout & Co., 160 Mo. 416; Kansas City v. Bacon, 147 Mo. 274.
   VALLIANT, P. J.

This is a proceeding begun in the circuit court of St. Louis county by the plaintiff railroad company to condemn a right of way for its railroad through land of the defendant in that county. The commissioners made their report assessing defendant’s damages as $9,470, which amount plaintiff paid into court and took possession of the land. In due time defendant filed exceptions to- the report and demanded a jury to assess the damages; afterwards defendant demanded of the clerk the money paid into court and it was delivered to him. When the exceptions came on to he heard the court sustained the same and ordered a new assessment of damages to he made by a jury. On application of plaintiff the venue was changed to Gasconade county; the cause was tried in the circuit court of that county with the result of a verdict of the jury assessing defendant’s damages at $22,500, whereupon the court rendered judgment for defendant for $13,030, being the amount of the jury’s award less $9,-470, the amount of the commissioners’ report which the defendant had already received; from that judgment the plaintiff has. appealed.

I. Plaintiff’s first proposition is that defendant having accepted the damages awarded by the commissioners that was the end of the controversy, there was nothing left for trial by the jury.

This court has already decided that point against the plaintiff’s contention in several cases, the last one being a case in which this plaintiff was a party. [St. Louis, Memphis & S. E. R. R. Co. v. Aubuchon, 199 Mo. 352.] The law is that the condemning corporation shall pay the amount of the commissioners ’ award into court as a condition precedent to its taking possession of the land, and upon such payment the corporation may take possession and proceed with the construction of its road, and at the same time the owner of the land so taken or damaged may take the- amount of money so deposited, but the payment of the award into court does not preclude the corporation nor does the receiving of it by the land-owner preclude him from further litigating the question of the amount of compensation. Notwithstanding such payment into court by the plaintiff and such receiving of the amount by the defendant, either party may, within the time prescribed, file exceptions to the commissioners’ award and litigate the ad quod damnum question to a final judgment. [Rothan v. Railroad, 113 Mo. 132; Railroad v. Clark, 119 Mo. 357; Railroad v. Fowler, 142 Mo. 670; Railroad v. Donovan, 149 Mo. 93; Railroad v. McElroy, 161 Mo. 584.]

The learned counsel for appellant think that in our former decisions a word in section 4, article 12, Constitution, has not been given, due consideration, that is, the court has not observed the significance of the word “trials” but has treated it as synonomous with the word “claims.” The language of section 4 is: “The right of trial by jury shall be held inviolate in all trials of claims for compensation, when in the exercise of the right of eminent domain, any incorporated company shall be interested either for or against the exercise of said right.” The point advanced is that in such case the right of trial by jury in that section; guaranteed applies only to trials provided for by act of the General Assembly under authority of section 21, article 2 of the Constitution where it is ordained: ‘ ‘ Such compensation shall be ascertained by a jury or board of commissioners of not less than twelve freeholders, in such manner as may be prescribed by law. ’ ’ And it is argued that since the Legislature under authority of that section of the Constitution has chosen, in section 1266, Revised Statutes 1899-, to provide for the ascertainment of the damages by a board of commissioners instead of a jury, there is to be no trial in the sense in which that word is used in section 4, article 12. "We cannot follow that argument without bringing the two sections of the Constitution mentioned into seeming conflict. Since section 21 of article 2 confers on the General Assembly the right to prescribe a procedure for the assessment of damages either by board of commissioners or a jury; if section 4, article 12 guarantees a right of trial by jury only in case the General Assembly sees fit to so provide under the authority conferred in section 21, article 2, then section 4, article 12 might as well have been omitted from the Constitution. In Rothan v. Railroad, above referred to, the court discussed these two clauses of the Constitution as bearing on the subject we are now considering and placed a construction on them which renders both of them effective and in harmony with, each other. Referring to section 4 of article 12 the court in that case, per Black, J., said: “It has been before this court on various occasions, and we have uniformly held that it secures to either party a trial by jury in the class of eases there mentioned; that the proceeding to condemn may be commenced by the appointment of commissioners, but if either party demands a jury to re-assess the damages the court has no discretion in the matter, and a jury must be awarded. ” [Citing cases.]

We are satisfied with our former decisions on this subject.

II. The defendant’s land consisted of a tract of 794 acres lying chiefly in St. Louis county, partly in St. Louis city. It was purchased by the late Mr. Drummond in his lifetime at the cost of $175,000, and was improved at the cost of $125,000'. There are two public roads crossing the land, but, according to defendant’s testimony, it was held, used and occupied as one body of land and esteemed particularly for that fact. The testimony for defendant tended to show that the tract as an entirety located so near the city was more valúa, able than if cut up into lots. In instruction number 1 for defendant the court said: “In passing upon this question [compensation] the jury should consider all the land owned by the defendant mentioned in the evidence, as one tract or body, if they believe from the evidence that the defendant used and occupied its said land as an entirety or as one place or premises at the time of the location of plaintiff’s railroad on .defendant’s land, notwithstanding parts of the same are separated from other parts thereof by public highways; and if the jury believe from the evidence that all of said land was so used and occupied by the defendant and that the same constituted one tract or body of land, ’ ’ then in estimating the damages the jury should take into account not only the land taken but the depreciation, if any, in the market value of the whole tract. Plaintiff objects to the part of the instruction which authorizes the assessment of damages, to. the whole tract as an entirety.

The instruction does not assume that the land was used and occupied by the defendant as one tract, but submits the question of whether or not it was so to the jury and only authorizes the jury to. consider the damage to the whole tract as an entirety provided it was so used and occupied. We find no fault with that. The plaintiff’s instructions were along the same line.

In the second instruction for plaintiff the measure of damages is stated to be “the difference in the fair market value of defendant’s whole property before and-after the appropriation by the plaintiff of the strips,” and so forth. And in instruction 8 for plaintiff the jury are directed that if they find that any part of defendant’s land was not damaged they should not allow any damages for such part.

Plaintiff complains of the refusal of its 9th instruction, which is as follows: “If the jury believe from the evidence that the lands of the defendant referred to in the evidence in this case were divided into three separate bodies by public roads, in such a manner that there was no other connection between them than that all were the property of one owner; and that any one or more of such separate bodies was. not in fact damaged by the taking of part of defendant’s land for railway purposes, then in their assessment of damages in this case the jury will not allow anything as. damages to any of such bodies of said land as on the evidence they may find has not in fact been, damaged by the taking for railroad purposes of the land actually taken by plaintiff. ’ ’

There was evidence to show that there were three public roads, one forming the western boundary and two crossing the defendant’s land, thus dividing the tract into three parts, assuming the roads to be divisional lines, but there was no evidence tending to show that those roads effected such a division of the property into separate bodies as that there was nothing left of the entirety-feature of the whole tract except the ownership.

Under that instruction the jury would have been authorized, if they had seen fit to do so,to find that the three roads alone were sufficient to destroy the continuity of the tract. The instruction was properly refused.

III. The third assignment is that the damages awarded are-excessive.

In view of the evidence we think the award was a very conservative one.

The judgment is affirmed.

All concur.


text:
    PITTSBURG BRIDGE COMPANY v. ST. LOUIS TRANSIT COMPANY, Appellant.
    Division One,
    June 29, 1907.
    1. APPELLATE JURISDICTION: Amount in Dispute. In determining the amount in dispute the court may look within the mere shell of the pleadings and judgment — the mere colorable amount in dispute — and seek out the real amount. That may not be the amount of the judgment appealed from.

      2. -: -: Counterclaim: One Item. Plaintiff sued for $7,043.97, balance due for reconstructing under contract a power station for defendant. Defendant answered, denying owing plaintiff that sum or any sum, and setting up a counterclaim for four thousand three hundred dollars damages for eighty-six days’ delay in performing the contract after the day set for full performance, and for certain extra work amounting to $142.74. At the trial defendant admitted it owed plaintiff the amount sued for, and plaintiff admitted it owed defendant the item of $142.74, and the only issue remaining was the dispute as to the four thousand three hundred dollars, and on that the court heard evidence and found defendant was entitled to fifty dollars a day for thirty-seven days’ delay, or $1,850, and deducted that sum and the other item from the amount sued for and gave judgment for $5,789.30, and defendant appealed. Held, that the amount in dispute, in no view of the case, exceeds four thousand five hundred dollars, and therefore the Supreme Court does not have jurisdiction.
    Appeal from St. Louis City Circuit Court . — Hon. Warwick Hough, Judge.
    Transferred to St. Louis Court of Appeals.

      Glendy B. Arnold for appellant; Boyle & Priest of ■ counsel.

      Abbott S Edwards for respondent.
   LAMM, J.

Defendant appeals here from a judgment against it for $5,789.30.

Plaintiff 'held a contract to reconstruct a certain power station belonging to defendant, for so much money — a day being set for full performance and $50 per diem named for failure in time. Alleging performance, it sued for $7,043.97, the balance due on that contract.

Defendant answered, denying owing plaintiff that sum or any other sum. Eeferring to the contract counted on, defendant pleaded full payment of the contract price. Further referring to the contract, defendant pleaded a counterclaim in two items. First, for $4,300 damages for eighty-six days’ delay in performing the contract after the day set for full performance; and, second, for certain extra work, $142.74.

The reply put in issue the new matter.

With cross-claims and pleadings in this fix (both parties denying liability), the amount in dispute at the beginning was the amount claimed in the petition plus the two items of the counterclaim, aggregating $11,-486.71. '

Presently the ease came on for trial before Judge Hough, sitting as a jury, and the parties litigant did not stand on the amount in dispute outlined in the pleadings. To the contrary, defendant admitted it owed plaintiff on the building contract the sum sued for; and plaintiff admitted it owed defendant the smaller of the two items of the counterclaim. This left the amount in dispute the first item of defendant’s counterclaim, to-wit, $4,300. That issue was threshed out at the "trial. To that issue the evidence was limited. To that issue the instructions were directed. On that issue the court made its finding. It found that defendant was entitled to damages at $50 a day for thirty-seven days ’ delay, aggregating $1,850. To this sum it added the admitted item of $142.74 with interest, aggregating $2,006. It deducted the ascertained and determined amount of defendant’s counterclaim from the amount admitted to be due plaintiff and rendered judgment for the difference. Prom that judgment plaintiff took no appeal, defendant alone appealing, as said. So much for the amount in dispute below.

In this court the case is presented by abstracts, statements and briefs on both sides on the theory that the balance on the contract price is not in dispute; that the smaller item in defendant’s counterclaim is not in dispute; and that (as plaintiff took no appeal) the allowance of damages in the sum of $1,850 for thirty-seven days’ delay on the larger item of the counterclaim is no longer in dispute. The single bone of contention is the issue whether defendant was entitled to damages for eighty-six days’ delay in performing the contract, as claimed in the answer, or the thirty-seven days allowed by the court.

As there is no federal or constitutional question raised and the title to real estate is not involved, our jurisdiction must hinge on the amount in dispute. [Laws 1901, p. 107.]

We are given jurisdiction in all cases where the amount in dispute, exclusive of costs, shall exceed the sum of $4,500. In determining the amount in dispute we may look within the mere shell of the pleadings and judgment — the mere colorable amount in dispute — and seek out the real amount. [Vanderberg v. Gras Co., 199 Mo. 455.] In that case it was said: “Frequently the amount in dispute is materially affected by eliminating items and elements at the trial, and the record shows this. Would' it not be an act sounding to folly for us to say that, for the purposes of jurisdiction on appeal, we must continue to consider such eliminated matters?”

In Wilson v. Russler, 162 Mo. 1. c. 567, it was said: “It is now the settled law that in determining whether the jurisdiction of an appeal is vested in this court or one of the courts of appeals, the court will look into the record and ascertain the sum actually in dispute and will not be governed by the prayers of the petition and answer alone.” In that case the record was looked into and by a process of inclusion and exclusion, considering the petition, the counterclaim and the admissions at the trial, it was ascertained that this court had no jurisdiction, and the cause was remanded to the Kansas City Court of Appeals.

In State ex rel. Lingenfelder v. Lewis, 96 Mo. 146, two amounts were in dispute, viz., the amount claimed by the plaintiffs on their cause of action and the amount claimed by the defendant on his counterclaim; and Brace, J., said: “The amount in dispute by which the jurisdiction of the appellate court is to be determined is not necessarily fixed by the amount of the judgment appealed from (State ex rel. v. Court of Appeals, 87 Mo. 569), nor by the amount claimed on the cause of action sued upon (Kerr v. Simmons, 82 Mo. 269), but by the amount that remains in dispute between the parties, on the appeal, and subject to determination by the appellate court of the legal questions raised on the record; to ascertain which, the appellate court is not confined to an examination of the judgment only, or the pleadings in the case, but may lo'ok into the whole record.” The facts of that case put it on all-fours with this. There, by a sensible process of sorting out, the real amount in dispute on appeal was got' at with the result that it was held this court had jurisdiction. Accordingly a writ of prohibition issued to the St. Louis Court of Appeals prohibiting that court from proceeding to hear and determine the cause.

In Conrad v. DeMontcourt, 138 Mo. 311, a judgment went for plaintiff and against defendant on a counterclaim; and it was- held that his court would look into the counterclaim to ascertain the amount in dispute. [Page 321, et seq.]

In In re Burke’s Estate, Green, Executor, v. Hussey, 169 Mo. 212, an executor makes final settlement in the probate court. After taking certain credits he charges himself with a balance of $3,530.85. A distributee, Hussey, files exceptions. These exceptions are disallowed and Hussey appeals to the circuit court. That court increases the amount of the executor’s indebtedness by $2,979.97 and adjudges him to stand indebted to the estate in the sum of $6,510.82. Thereupon the executor appeals here. This court looked beneath the mere surface of the judgment and into the record and there ascertains that the only amount in dispute is the increase made by the circuit court, to-wit, $2,979.97. Accordingly it refused to entertain jurisdiction. [See, also, Douglas v. Kansas City, 147 Mo. 428.]

In the case at bar, the amount in dispute on the surface is the amount of the judgment against defendant. -That amount would be sufficient to give this court jurisdiction. But looking deeper into the record for the kernel of the thing, it is not so; and applying the settled rule of construction as shown in the cases cited, it will be seen that if the real amount in dispute is considered to be the first item of the counterclaim, $4,300, yet we have no jurisdiction. And, a fortiori, have we no jurisdiction if we come nearer to the real amount in dispute, to-wit, plaintiff’s liability for damages for the number of days’ delay after deducting the thirty-seven days allowed by the court, to-wit, forty-nine days at fifty dollars per day, say, $2,450'.

Having no jurisdiction, the cause is transferred to the St. Louis Court of Appeals for determination.

AH concur.