source: Caselaw Access Project

author: BURGESS, P. J.

license: Public Domain

text:
    KANSAS CITY ex rel. DIAMOND BRICK & TILE COMPANY v. SCHROEDER, VAN BUREN AND NATIONAL SURETY COMPANY, Appellants; McTERNAN-HALPIN ROCK CRUSHING COMPANY, STEWART-PECK SAND COMPANY and HALLIWELL CEMENT COMPANY, Interveners.
    Division Two,
    May 22, 1906.
    1. JUDGMENTS: One or Several. A judgment against the sureties on a contractor’s bond, which sets out the amount due to each materialman, who have either as plaintiffs or interveners been made parties, and awards execution for the aggregate amount of all, is not several distinct judgments, but only one.
    2. -: -: Stipulation for Reversal by one of Several Appellees. A stipulation entered into by appellant and one of four appellees similarly interested, in which it is agreed that the judgment shall be reversed, will not work a reversal, if the other appellees protest.
    3. INTERVENTION: Motion to Strike Out: Waiver: Charter Provision: Answer. By answering and going to trial on the merits, after appellant’s motion, to strike out the intervening petition had been overruled, appellant waived any objection to the trial court’s ruling permitting the interveners to be made parties, and also waived its right to have considered on appeal a provision of the charter permitting intervention in like cases.
    4. -: Usual Method: Waiver. The usual method of raising the objection to permitting parties similarly interested to intervene is by demurrer upon the ground that there is a defect of parties, that several causes of action are improperly united, or that the interveners áre not necessary parties to a complete determination of the suit. But that demurrer is waived by answering over and going to trial on the merits.
    5. STREET IMPROVEMENT: Suit on Bond: Void Ordinance: No Competition: Suit by Materialmen. In a suit on the bond of a contractor for a street pavement by materialmen who furnished the material which went into the improvement, the defendant sureties cannot raise the objection that the ordinance directing the improvement to be done and the contract therefor are void, in that all possibility for competitive bidding was shut out, contrary to the charter. The taxbills in payment of the work having been issued and turned over to the contractor, in accordance with the terms of the contract, his sureties, when sued for the material used by him in the construction of the pavement, are not in a position to say that the contract and ordinance under which the work was done were void.
    6. -: -: Estoppel. The defendants, in such case, are estopped to deny the validity of the contract because it had been fully executed.
    7. -: -: Materialmen: Independent of Validity of City Contract. The contract between the materialmen and the contractor is. independent of the contract between the city and the contractor; therefore, the relief to which the materialmen are entitled does not depend upon the validity of the contract between the city and the contractor.
    Appeal from Jackson Circuit Court.—Hon. Andrew F. Evans, Judge.
    Affirmed.

      Kimbrough Stone and Frank Hagerman for appellants.
    (1) There must be a reversal of the judgment for the brick company. There were four distinct judgments rendered against appellants, the sureties upon the contractor’s bond—one for $5,132.25, in favor of the brick company, and separate judgments in favor of each of the three interveners, aggregating $2,937.86. Here a stipulation has been filed that the judgment in favor of the Diamond Brick & Tile Company against appellants may be reversed and final judgment entered either here or below in favor of said appellants. Nothing remains to be done but to enter a judgment in accordance with this stipulation. Such was the course pursued when a similar situation was presented in Bernhardt v. Scarritt, 115 Mo. 51. This leaves for consideration the judgments for interveners. (2) The appeals from the judgment of the interveners should be transferred to the Kansas City Court of ■ Appeals. Where there are appeals from interventions, the jurisdictional amount is determined from the amount recovered by each intervener, not by the sum total recovered by all the parties to the case. P. L. & T. Co. v. Waterman, 106 TJ. S. 265. Here the aggregate amount recovered by interveners aggregates $2,937.86. This is less than the amount necessary to sustain jurisdiction here. (3) Interveners should not have been permitted to intervene, (a) This suit was and could be only to recover for that which was claimed to be due the brick company, and a separate judgment was rendered therefor. Each intervener filed a,separate petition, and.a separate judgment was rendered in favor of each. Objection was made by motion to each intervener so asserting its right, and the objection was also made by motion for new trial and motion in arrest. The question is therefore presented whether, where one creditor sues, another creditor with.an independent claim can intervene in that suit, (b) The right was below upheld upon the authority of section 20, article 9, charter of Kansas City. The charter cannot regulate the practice of the courts. Badgley v. St. Louis, 149 Mo. 122; State ex rel. v. Tel. Co., 189 Mo. 99. (c) The interveners were not necessary parties, nor were they proper parties to this suit. B. S. 1899, sec. 542; Ins. Co. v. Lent, 75 Iowa 522. These interveners are not “interested in the subject of the action and in obtaining the relief demanded.” The “relief demanded” here by plaintiff is payment for the brick furnished to it by Schroeder, a matter with which these interveners have absolutely no share or connection; therefore, whether the plaintiff brick company recovered or not cannot affect them. Neither have they “an interest in the subject of the action.” Horn v. Water Co., 13 Cal. 62; Speyer v. Themels, 21 Cal. 287; Gradwohl v. Harris, 29 Cal. 154; Stich v. Dickinson, 38 Cal. 611. (4) If for any reason the brick company was not entitled to recover, then there must be a reversal as to the interveners. (5) ' Upon the merits interveners should not recover. 1. The ordinance directing the improvement and the contract therefor were both illegal and void. The charter of Kansas City (sec. 12, art. 17, pp. 234-235) requires in express words that all city improvements, including such improvements as that in this case, shall be let to the lowest and best bidder. That requirement is mandatory, the city legally cannot provide for the making of any improvement contrary thereto, and all ordinances and contracts in violation therof are absolutely void. McQuiddy v. Brannock, 70 Mo. App. 535; Buggies v. Collier, 43 Mo. 353; Baha v. Taylor, 36 Mo. App. 427; Schoenberg v. Field, 95 Mo. App. 247; Swift v. St. Louis, 180 Mo. 95; Smith v. Imp. Co., 161 N. Y. 484. 2. Neither the brick company nor either intervener could recover in this case against appellants, because: (a) The contract between the city and Schroeder, the principal,, was illegal.; (b) The right to recover is based upon the contract; and (c) A surety’s liability depends upon the validity of the principal’s obligation, (a) No recovery because the contract with the city was- illegal. It goes without saying that no right of action can come out of an illegal act. It is not competent for parties to make agreements in violation of an express provision of law. Ordelheide v. Railroad, 80 Mo. App. 357; Woolfolk v. Duncan, 80 Mo. App. 421; Sedalia Board of Trade v. Brady, 78 Mo. App. 585; Swing v. Cider, etc., Co., 77 Mo. App. 391; Guenther v. Dewein, 11 la. 133; Reynolds v. Nichols, 12 la. 398; Pease v. Welsh, 39 N. Y. Supr. Ct. 514; Hale v. Henderson, 23 Tenn. 199. (b) No recovery because the right to recover is based upon that contract. Tyler v. Larimore. 19 Mo. App. 458; Kitchen v. Greenbaum, 61 Mo. 110; Parsons v. Randolph, 21 Mo. App. 353; Harrison v. MeClerney, 32 Mo. App. 481; Katch v. Hanson, 46 Mo. App. 323; Kansas City School Dis. v. Shiedly, 138 Mo. 672; Gunter v. Leckey, 30 Ala. 591; Phalen v. Clark, 19 Conn. 421; Scott v. Duffy, 14 Pa. St. 18; Buck v. Albee, 26 Yt. 184; Melchior v. McCarty, 31 Wis. 252; Wells v. McGeath, 71 Wis. 196; DeWitt v. Lauder, 72 Wis. 120. “Where a contract grows immediately out of, and is connected with, an illegal or immoral act, a court of justice will not lend its aid to enforce it.” Toler v. Armstrong, Fed. Cas. No. Í4078, affd. in 11 Wheat. 258; Wooton v. Miller, 15 Miss. (7 Smed. & M.) 380; Buckingham v. Fitch, 18 Mo. App. 91; Leavitt v. Blatchford, 5 Barb. 9; Ball v. Davis, 1 N. Y. St. Rep. 517; Buck v. Albee, 26 Yt. 184; Deans v. McLendon, 30 Miss. 343; Barton v. Plank Road Co., 17 Barb. 397; Eberman v. Ritzel, 1 Watts & S. 181; Armstrong v. Toler, 11 Wheat. 258; Columbia Bridge v. Kline, 4 Clark 39; Branch v. Haas, 16 Fed. 53; Howell v. Fountain, 3 Ga. 176; Woolfolk v. Duncan, 80 Mo. App. 421. A contract growing out of an illegal transaction is tainted with the illegality, though it be in fact a new contract. Woolfolk v. Duncan, 80 Mo. App. 421; Hayden v. Little, 35 Mo. 418; Gwinn v. Symes, 61 Mo. 335; Sumner v. Sumner, 54 Mo. 440; Bick v. Seal, 45 Sfo. App. 475. (c) No recovery against sureties because their liability depends upon the validity of the principal’s obligation. The contract betwen the city and Schroeder being illegal and void, and plaintiff’s right to recover being based upon that contract, there can be no recovery against these defendants, who were sureties of Schroeder in said contract. The rule is that the surety’s liability depends upon the validity of the obligation of the principal; if, for any reason, it is invalid, then the surety cannot be held. Railroad v. Smith, 27 Mo. App. 377; Hemery v. Marksberr'y, 57 Mo. 403; Hernán v. Francisco, 12 Mo. App. 559; Macey, etc., Co. v. Heger, 195 Pa. St. 125; Mound v. Barker, 71 Yt. 253; Riley v. Jordan, 122 Mass. 231; Ernst v. Crosby, 140 N. Y. 364; Prather v. Smith, 101 Ga. 283; Edwards Co. v. Jennings, 33 S. "W. 585; Kansas City.v. O’Connor, 82 Mo. App. 655; Brandt on Guaranty and Suretyship, sec. 121; Chitty on Contracts, 499; Bank v. Kingsley, 2 Doug. 281; Ames v. Maclay, 14 la. 281; Smith v. Dickinson, 25 Tenn. 261; Janett v. Martin, 70 N. C. 459; Evans v. Roper, 74 N. C. 639; Joslyn v. Dow, 19 Hun 494; Kimhall v. Newell, 7 Hill 116; Fisher v. Salmon, 1 Cal. 413; Bank v. Bank, 93 la. 650; Bennett v. Corey, 72 la. 476; Rice v. Tolman, 60 111. App. 516; Goodwin v. Kent, 201 Pa. St. 41. 3. Plaintiffs should not have recovered against these defendants in this proceeding for the reason that, the ordinance and contract being illegal, the city had no power to make provision in the contract for the benefit of the materialmen, and said provision is absolutely null and void: (a) Because of the lack of said power on the part of said city; (b) Because there is no such thing as a common law obligation on the part of a municipal corporation. Harbery v. Arnold, 78 Mo. App. 237; Ins. Co. v. Trenton, 42 Mo. App. 118; Howsman v. Trenton, 119 Mo. 304; St. Louis v. Yon Phul, 133 Mo. 561; Hicks v. Hamilton, 144 Mo. 495; Devers v. Howard, 144 Mo. 671; Street v. Goodale, 77 Mo. App. 318; Armstrong v. School Disk, 28 Mo. App. 169; Crone v. Stinde, 68 Mo. App. 122; Vrooman v. Turner,, 69 N. Y. 280; St. Louis v. Footer, 52 Mo. 513; Forry v. Ridge, 56 Mo. App. 615. 4. The fact that the contract of the city was dual in its nature and created distinct and separate obligations, one in favor of the city and the other of the laborers and materialmen,' does not help the latter, because the illegality complained of here is in the makingof the contract and not in its performance. School Dis. v. Livers, 147 Mo. 581; Bethany v. Howard, 149 Mo. 513; Griffith v. Bundle, 23 Wash. 453; Dewey v. State, 91 Ind. 173; Conn v. State, 125 Ind. 514; Dolle v. Crumme, 41 Neb. 655; Kaufman v. Cooper, 46 Neb. 644; Steffers v. Lemke, 40 Minn. 27; Amorett v. Montague, 75 Mo. 43. 5. If the contract between the city and Schroeder was valid, the provision for the benefit of laborers and materialmen was void for .the want of consideration. Amonett v. Montague, 75 Mo. 43; Ellis v. Harrison, 104 Mo. 270; Dunning v. Leavitt, 85 N. V. 30; Trimble v. Strother, 25 Ohio St. 378; Brandon v. Hughes, 22 La. Ann. 360; Loeb v. Willis, 100 N. Y. 231; Wheat v. Eice, 97 N. Y. 296; Crowe v. Lewin, 95 N. Y. 423; Bank v. Bowman, 9 La. Ann. 195; Lapente v. Delaporte, 27 La. Ann. 252; Davis v. Calloway, 30 Ind. 112.

      Porterfield <& Conrad for respondent Halliwell Cement Company.
    (1) The court has jurisdiction of this cause. Lee v. Jones, 181 Mo. 297. (2) The claim of the Halliwell Cement Company is rightfully asserted and ajudicated in this proceeding. 1. The paving of the street in question was a municipal act. State ex rel. v. Field, 99 Mo. 356; Kansas City v. Oil Company, 140 Mo. 471; St. Louis to use v. Von Phul, 133 Mo. 560; Kansas City ex rel. v. Scarritt, 127 Mo. 642. 2. In municipal matters Kansas City has the right to designate the mode of procedure so long as the charter provision is not in contravention of the Constitution and laws of the state. State ex rel. v. Field, 99 Mo. 352; Kansas City v. Oil Co., 140 Mo. 468; Kansas City to use v. McDonald, 80 Mo. App. 444; Charter of Kansaá City, sec. 20, art. 9; St. Louis to use v. Von Phul, 133 Mo. 460. 3. This suit was originally instituted for the benefit of laborers, teamsters, owners of teams and wagons, and all parties who have furnished materials. Charter of Kansas City, sec. 20, art. 9. (3) Upon the merits the claim or demand of the Halliwell Cement Company should be sustained. 1. The contract. Charter of Kansas City, sec. 12, art. 17; Clapton v. Taylor, 49 Mo. App. 124; People ex rel. v. Gleason, 121 N. T. 631; Verdin v. St. Louis, 131 Mo. 162; St. Louis v. Davidson, 102 Mo. 149; 2 Dillon Mun. Corp. (4 Ed.), sec. 936; McDonald v. Mayor, 68 N. T. 23; Bigelow on Estoppel (5 Ed.), 685; Chenoweth v. Express Co., 93 Mo. App. 195; Thompson’s Commentaries on the Law of Corporations, sec. 6016; City of Unionville v. Martin, 95 Mo. App. 36; Mayor v. Sonneborn, 113 N. Y. 425; Pratt v. Eaton, 18 Hun 293; Hendersonville v. Price, 96 N. C. 423; Barber, etc., Co. v. Hunt, 100 Mo. 20. 2. Appellants cannot be heard to deny the validity of said contract. Bricker v. Stroud Bros., 56 Mo. App. 188; Bigelow on Estoppel (5 Ed.), pp. 459-60; 2 Herman on Estoppel, sec. 740; Minnaugh v. Chandler, 89 Ind. 94; Sprague v. Bank, 10 Peters 257; Sprague v. Bank, 14 Peters 201; Dark v. Sherwood, 7 Wis. 446; Bank v. Reddington, 52 Mo. 456; Heath v. Bank, 44 N. H. 434; Ettlesohn v. Kirkwood, 33 111. App. 103; Wyncoop v. Cowing, 21 111.507; St. Louis v. Davidson, 102 Mo. 149; Middleton v. City of Elkhart, 120 Ind. 166; VanHook v. Whitlock, 26 Wend. 43; City of Burlington v. Gilbert, 31 la. 356; Daniels v. Tearney, 102 U. S. 415; Ferguson v. Landrain, 5 Bush (Ky.) 230; Mayor v. Sonneborn, 113 N. Y. 423; City of Union-ville v. Martin, 95 Mo. App. 39; Devers v. Howard, 88 Mo. App. 261; Bank v. Trust Co., 187 Mo. 494; Whitney Arms Co. v. Barlow, 63 N. Y. 62; Bradley v. Ballard, 55 111. 413; U. S. v. Hudson, 10 Wall. 395; Verdin v. St. Louis, 131 Mo. 155. 3. Even though the ordinance. authorizing the pavement were void, appellants are es-topped to deny the validity of the contract. St. Louis v. Davidson, 102 Mo. 149; Devers v. Howard, 88 Mo. App. 253; City of Hnionville v. Martin, 95 Mo. App. 28; Daniels v. Tearney, 102 U. S. 415; Railroad v. McCarthy, 96 U. S. 258; Bank v. Graham, 100 U. S. 699; Ferguson v. Landraim, 5 Bush (Ky.) 230; Mayor v. Harrison, 30 N. J. L. 73; YanHook v. Whitlock, 26 Wend. 43; Lee v. Tillbtson, 24 Wend. 337; People v. Murray, 5 Hill 468; City of Burlington v. Gilbert, 31 la. 356; Railroad v. Stewart, 39 la.-267. 4. Even under an illegal contract relief will he granted when public interests will be better promoted thereby. Church v. Procter, 66 Fed. 246; Bank v. Trust Co., 187 Mo. 533; St. Louis v. Yon Phul, 133 Mo. 561; Wright v. Pipe Line Co., 101 Pa. St. 207; Lester v. Bank, 33 Md. 558; Sparks v. Sparks, 94 N. C. 527; Whitney Arms Co. v. Barlow, 63 N. Y: 62; Story’s Equity Jur., secs. 298-300. 5. The enforcement of the claim of the Halliwell Cement Company does not involve the ultra vires feature, if any, of the contract. McDermott v. Sedgwick, 140 Mo. 172; Sawyer v. Taggart, 77 Ky. 734; Armstrong v. Bank, 133 U. S. 469; Pollock on Contracts, 329; Johnson v. Smith, 70 Ala. 108; Martin v. Hodge, 47 Ark. 378. 6. Appellants are estopped to deny the validity of said contract, in that the same is executed. Land v. Kanffmann, 50 Mo. 243; Ragan v. McElroy, 98 Mo. 349; Ins. Co. v. Smith, 117 Mo'. 261; Bank v. Trust Co., 187 Mo. 494. (4) The contract is dual in its nature. H. S. to use v. Nat. Surety Co., 92 Fed. 549; Dewey v. State, 91 Ind. 514; School Dist. ex rel. v. Livers, 147 Mo. 580; City of Bethany v. Howard, 149 Mo. 504; City of St. Louis to use v. Yon Phul, 133 Mo. 561; Devers v. Howard, 88 Mo. App. 257; Conn v. State, 125 Ind. 514; Doll v. Crnme, 41 Neb. 655; Kaufmann v. Cooper, 46 Neb'. 644; Steffes «v. Lemke, 40 Minn. 27. (5) The city made provision in said contract for the protection of materialmen. St. Louis to use v. Yon Phul, 133 Mo. 561; Knapp v. Swaney, 56 Mich. 350; School Dist. v. Livers, 147 Mo. 581; Devers v. Howard, 88 Mo. App. 253, 144 Mo. 671; Rogers v. Gosnell, 58 Mo. 590; Beattie Mfg. Co. v. Gerardi, 166 Mo. 142; Parker v. Woods, 138 Mo. 539; Crone v. Stinde, 156 Mo. 262; City of Bethany v. Howard, 149 Mo. 504. (6) On grounds of public policy, honesty and justice, the judgment of the lower court should be affirmed.

      Ball & Ryland for respondent McTernan-IIalpin Rock Crushing Company; Johnson & Lucas for respondent Stewart-Peck Sand Company.
    (1) There can be no reversal of the judgment on the stipulation filed with that purpose. There is no judgment for the brick company. There were not ‘ ‘four distinct judgments against appellants-.” Appellants, in respect to the interest in the judgment, of the brick company, are entitled to nothing except a pro tanto satisfaction' of that judgment. (2) There should be no transfer of the cause to the Court of Appeals. The fallacy of the second proposition of appellant’s brief, that such transfer should be made, is perfectly apparent. In one and the same breath they ask the court to assume jurisdiction and enter a judgment of reversal on the stipulation filed, and then to hold that for the remnant of the case the court has no jurisdiction to determine it. They erroneously treat the cause as if there were four separate and distinct judgments, from which four separate and distinct appeals were taken. As we have seen, there was only one judgment in favor of Kansas City for the penal amount of the obligation, with execution for the aggregate amount found due each of respondents. The jurisdiction on appeal was settled and fixed by the terms of the judgment from which the appeal was taken. (3) Appellants cannot question the propriety of the intervention of these respondents. (a) Because the intervention was in accord with the procedure in snch cases, prescribed by the charter, (b) The propriety of the intervention of respondents, other than the brick company, is a question that is waived by appellants on the record. Appellants did move to strike out the intervening petition of respondents. Those motions were denied. Appellants then answered and went to trial on the merits. "When they did this they waived the question, under the uniform and repeated decisions of this court. The cases to this effect are too numerous to require many citations. Williamson v. Fisher, 50 Mo. 198; Haase v. Nelson Distilling Co., 64 Mo. App. 131; Rinard v. Railroad, 164 Mo. 270; Newcomb v. Railroad, 182 Mo. 687. (4) Whether the brick company, to whose use the action was originally instituted in the name of Kansas City, is or is not, on the record, entitled to recover, is perfectly immaterial so far as the rights of these respondents are concerned. We have thus far refrained from entering into any controversy tendered by appellants in respect to the general law of interventions, for the reason that in our judgment the decisions cited have no application whatever to the questions here involved, and to the attitude on the record of the respective parties. We take it that the charter provision under which the proceedings were had in the court below, are valid. We take it that, whether they are valid or not, appellants have waived the point by taking issue and pleading to the merits and trying the case. These respondents are not affected by whatever infirmities may exist in the right of the brick company to recover. There is no pretense that these respondents are subcontractors as distinguished from materialmen. There is no pretense that they did not, each of them, in good faith and in reliance on the obligation of the contractor and his sureties, furnish materials for this work to the amount and value found by the court to be due them. (5) These appellants, Van Burén and National Surety Company, as well as their principal, Schroeder, are estopped to deny the validity of their obligation to pay the claims of these respondents. A majority of the resident owners of property along the line of the proposed improvement, petitioned the council to pave the street with this particular brick. Certainly all of the property-owners signing that petition would be estopped to deny the validity of the taxbills. The work was completed according to contract and accepted and' the bills issued and delivered to the contractor. Nothing appears in the record indicating that any property-owners, either those who signed the petition or those who did not, had ever questioned the validity of the bills on this ground or any other. Non constat but that Schroeder collected all of them. The contract recites that it is between Schroeder, as principal and party oí the first part, and appellants 'as sureties, parties of the second part, and the city as party of the third part, and declares, “The said party of the first part is the lowest and best bidder for making, tmder provision of Ordinance No. 16877, entitled, ‘An ordinance to pave Howard street from the east line of Grove street to the west line of Brooklyn avenue,’ approved May 6, 1901, the following city improvements,” etc. Ben. Soc. v. Murray, 145 Mo. 622; Reinhard v. Min. Co., 107 Mo. 616; St. Louis v. Morton, 6 Mo. 476; Lionberger v..Krieger, 88 Mo. 160; Cross v. Kansas City, 90 Mo. 13; Vaile v. Independence, 116 Mo. 333; Hill-0’Meara Const. Co. v. Hutchinson, 100 Mo. App. 294; State v. Mastín, 103 Mo. 508; Devers v. Howard, 88 Mo. App. 253. (6) Appellants are directly liable to respondents, regardless of whether the tax-bills are void. They got what they contracted for— the taxbills. The consideration was ample. The validity of the major part of the bills could not be questioned. The validity of the remainder does not appear to have been questioned. Crone v. Stinde, 156 Mo. 262, overruling Flicks v. Hamilton, 144 Mo. 495; St. Louis v. Von Phul, 133 Mo. 561; School District v. Livers, 147 Mo. 580.
   BURGESS, P. J.

This is a suit by Kansas City to the use of the Diamond Brick & Tile C'ompany against S. F. Schroeder, James Van Burén, Jr., and the National Surety Company, on a contractor’s bond wherein said Schroeder is principal, and Van Burén and the National Surety Company are sureties. The contract in question was for the paving of a portion of Howard street in said city. The Diamond Brick & Tile Company furnished the brick which were used in the paving.

The answer of the defendant Schroeder was a general denial. The defenses interposed by the other two defendants were, first, a general denial, and, next, a special plea alleging the invalidity of the paving contract between Schroeder and the city on the ground that it was entered into in violation of section twenty of article nine of the city charter, which requires competitive bidding in such contracts, since the ordinances authorizing and confirming said contract expressly limited the paving material to “Diamond Vitrified Paving Brick,” which was made and sold exclusively by the Diamond Brick & Tile Company.

McTernan-Halpin Eock Crushing Company, Stewart-Peck Sand Company and Halliwell Cemént Company each filed an intervening petition seeking to recover against defendants for materials furnished to Schroeder and by him used in the work.

Defendants Van Burén and the National Surety Company filed motions to strike out these intervening petitions on the ground that there was no legal authority permitting such interventions. These motions were overruled, and the answers which had been filed to plaintiff’s petition were, by stipulation, treated as applying to the intervening petitions, and on the issues raised by them the case went to trial.

The evidence tended to show the accounts as claimed by the petitions to be due for materials furnished Schroeder by the plaintiff and the several interveners, and used in the paving done under the contract between Schroeder and the city; that the petition for paving, the city council resolution setting forth the necessity for paving, the city ordinances authorizing the paving and confirming the contract with Schroeder, all expressly confined the paving material to “Diamond Vitrified Paving Brick;” that Diamond Vitrified Paving Brick was made and sold exclusively by the plaintiff; that there was nothing peculiar about this manufacture of brick, but that similar brick were made in various other parts of the country and by at least four other firms in Kansas and Missouri near to Kansas City; that one such firm was located in St. Joseph, Missouri, and another, the Kansas City Vitrified Brick Company, in Kansas City; that two other paving bricks of this character besides the Diamond brand had been used in the paving of streets in Kansas City and had stood the tests prescribed by the city and as paving material given as good satisfaction as the Diamond; that the brick used in such paving and furnished by the Pittsburg Vitrified Brick Company had given better satisfaction than the Diamond brand; that one Spiers, working on a commission of fifty cents a thousand brick, had secured the signers to the petition for paving this part of Howard street with Diamond Vitrified Paving Brick; that the Diamond Brick & Tile Company had, under its contract with Schroeder, furnished all of the brick used in said paving; that more than half of the cost of said paving went for the brick so furnished; and that the plaintiff sold its paving brick direct to the contractor and no brick of that brand could be bought from anyone except the plaintiff.

The appellants asked and the court refused each of the following declarations of law:

“1. On the undisputed evidence in this case the' finding of the court must be in favor of defendants, Van Burén and National Surety Company, as against plaintiff.
“2. On the undisputed evidence in this case the finding of the court must be in favor of defendants, Van Burén and National Surety Company, as against all the interveners.
“3. On the facts found the finding of the court must be in favor of defendants, Van Burén and National Surety Company, as against plaintiff.
“4. On the facts found the finding of the court must be in favor of defendants, Van Burén and National Surety Company, as against all interveners.
‘ ‘ 5. ■ The ordinance directing that the street in evidence be paved is illegal and void, in that it prevented competition as to all the brick to be used in the construction of the pavement; the charter of said city requires competition in all street improvements of that kind as to all materials going into their construction.
“6. The contract between the city and Schroeder for paving the street is illegal and void: (1) because the ordinance is illegal and void; (2) because it also prevents all competition in said brick, in violation of the charter of the city.
“7. Said contract between the city and Schroeder is void in foto, not only as to the city, but also' as to the laborers and materialmen.
‘ ‘ 8. Plaintiff is neither a laborer nor materialman within the meaning of the charter or contract.
“9. Plaintiff is a party to the contract between the city and Schroeder, made so by the requirement of the ordinance and said contract that plaintiff’s brick only should be used in performing said contract, and made so by the provisions of the contract between plaintiff and Schroeder.”

To the refusal of the court to give the declarations of law as asked appellants excepted.

The court specially found the facts to be that while the amounts of the bills for material went into the work, yet the contracts were promoted by the brick company and so let and made that there could be no competition, and so that no brick but that made by plaintiff could be used, and adopted these conclusions of law:

“Under the evidence in this cáse the finding of the court must be:
“That the plaintiff is entitled to recover of and from the defendants said sum of $4,930.58, with interest thereon at the rate of six per cent per annum from the 27th day of August, 1902;
‘ ‘ That the intervener McTernan-Halpin Rock Crushing Company is entitled to recover of and from the defendants said sum of $1,134.30, with interest thereon at the rate of six per cent per annum from the 2nd day of September, 1902;
“That the intervener, Stewart-Peck Sand Company, is entitled to recover of and from the defendants said sum of $1,075.71, with interest thereon at the rate of six per cent per annum from the 15th day of January, 1903;
“That said intervener, Halliwell Cement Company, is entitled to recover of and from the defendants said sum of $637.79, with interest at the rate of six per cent per annum from the 2nd day of September, 1902.
“The ordinance providing for the paving of the street in question prevented competition as to the brick to be used in the construction of said pavement. The charter of said city requires competition in the letting of all contracts for such improvements. Said ordinance and the contract between the city and Schroeder, made in pursuance thereof, was to that extent in conflict with the charter, but whether said ordinance was absolutely void in all things or not when passed, and whether said contract was absolutely void in all things or not when executed need not now be determined; but the contract in this case between Schroeder and the city for the paving of the street in question, having been fully performed in all things, except only in the payment of materials sued for in this case and used in the construction of said pavement, the defendants are estopped to deny in this case the validity of said contract.”

The court then rendered judgment, as follows:

“Now come the parties and the interveners by their attorneys, and this cause having been heretofore submitted to the court on the pleadings and evidence and the argument of counsel, and the court, having taken the same under advisement and now being fully advised in the premises, finds the issues for the plaintiffs and the interveners, and against the defendants, S. P. Schroeder, James Yan Burén, Jr., and the National Surety Company.
“And the court finds that there is due the Diamond Brick and Tile Company, from said defendants, the sum of $4,930.58, with interest thereon at the rate of six per cent per annum from the 27th day of August, 1902, to this date, said interest amounting to $201.67, and that the total amount so due said Diamond Brick and Tile Company is $5,132.25 with six per cent interest from the date hereof until paid.
“That there is due the intervener, McTernan-Halpin Eock Crushing Company, from said defendants, the sum of $1,134.30 with interest thereon at the rate of six per cent per annum from the 2nd day of September, 1902, to this date, said interest amounting to $45.37, and that the total amount so due said intervener, the Mc-Ternan-Halpin Eock Crushing Company, is $1,179.67, with six per cent interest from the date thereof until paid.
“That there is due the intervener, Stewart-Peck Sand Company, from the said defendants, the sum of $1,075.71, with interest thereon at the rate of six per cent per annum from the 15th day of January, 1903, to this date, said interest amounting to $19.18, and that the total amount so due said intervener, the Stewart-Peck Sand Company, is $1,094.89, with six per cent interest from the date hereof until paid.
‘ ‘ That there is due the intervener, the Halliwell Cement Company, from the said defendants, the sum of $637.79, with interést thereon at the rate of six per cent per annum from the 2nd day of September, 1902, to this date, said interest amounting to $25.51, and that the total amount so due said intervener, the Halliwell Cement Company, is $663.30, with six per cent interest from the date hereof until paid.
“That the aggregate or total amount due to the said Diamond Brick and Tile Company and the interveners, the McTernan-Halpin Bock Crushing Company, the Stewart-Peck Sand Company and the Halliwell Cement Company is $8,070.11, with interest thereon at the rate of six per cent per annum from the date hereof until paid.
“Wherefore it is ordered, adjudged and decreed by the court that the plaintiff, Kansas City, have and recover for the use and benefit of said Diamond Brick and Tile Company, and the said interveners, McTernan-Halpin Rock Crushing Company, the Stewart-Peck Sand Company and the Halliwell Cement Company, of and from said defendants, S. F. Schroeder, James Van Burén, Jr., and the National Surety Company, the sum of $9,014, the estimated cost of labor and materials, as stated in the contract between Kansas City and said S. F. Schroeder, mentioned in the petition, and that execution issue herein for the sum of $8,070.11, the aggregate amount found to be due to the said Diamond Brick and Tile Company and said interveners, together with six per cent interest thereon from the date hereof, and for costs herein.”

Appellants, after motions for new trials and in arrest of judgment, perfected their appeal. There has been filed a stipulation in this court for reversal of judgment as to the plaintiff, the Diamond Brick and Tile Company.

While this suit was brought for the use of the Diamond Brick & Tile Company, other companies that had furnished material for the construction of the street intervened, and the court made a separate finding as to the amount due to each intervener, as also to the plaintiff, and rendered judgment in favor of Kansas City for the sum of $9,014, the penalty of the obligation, and ordered execution to issue for said sum. Appellants contend that there must be a reversal of the judgment as to the Diamond Brick & Tile Company, under the stipulation to that effect entered into between the attorneys for the company and the attorneys for James Van Burén and the National Surety Company. In making this point, appellants assert that there were four distinct judgments rendered against them as sureties upon the contractor’s bond: one for $5,132.25 in favor of the Diamond Brick & Tile Company, and separate judgments in favor of each of the three interveners, the latter aggregating $2,937.86; but a casual reading of the record discloses that there was but one judgment, based upon a special finding of the amount due to each one of the parties plaintiff in this suit.

It is indisputable that when the appeal was perfected the Supreme Court had jurisdiction of the cause, the amount involved being over $4,500', and having acquired jurisdiction it cannot be shorn of it by the stipulation entered into by the Brick Company and the defendants Yan Burén and the National Surety Company to the effect that the judgment as to the Brick Company may be reversed and final judgment entered either in this court or in the court below in favor of said Brick Company. In Reinhardt v. Scarritt, 115 Mo. 51, the defendants successfully demurred to plaintiff’s petition in the court below, and from a judgment rendered thereon plaintiffs appealed to this court. Defendants then came into this court, confessed the demurrer, and asked that the cause be reversed and remanded only. Plaintiffs objected, but notwithstanding the objection, the judgment was reversed and the cause remanded. It will be observed that in that case the appellees all acted in concert.. In the ease at bar, one of four appellees is endeavoring to control* a judgment, while the three others, who are similarly interested as judgment creditors and appellees in the cause, are protesting against it. For this reason that case is not in point, as it would be in a case where there is but one appellee, who might, of course, dispose of his judgment as he might see proper. As there is but one judgment, the agreement by the Brick Company to its reversal, and for final judgment in favor of appellants, was without authority, and of no binding force or effect.

Defendants claim that the court erred in permitting the McTernan-Ilalpin Bock Crushing Company, Stewart-Peek Sand Company and Halliwell Cement Company to file intervening petitions, such permission being without authority of law. The record shows that while appellants did move the court to strike out the intervening petitions of respondents, the motions were overruled; that defendants then answered and went to trial upon the merits, and in this way waived the question. [Rinard v. Railroad, 164 Mo. 270; Liese v. Meyer, 143 Mo. l. c. 556; Cofer v. Riseling, 153 Mo. 633; Springfield E. & T. Co. v. Donovan, 147 Mo. 622.] The objection might have been raised by demurrer upon the ground that there was a defect of parties plaintiff, that several causes of action were improperly united, or that the parties plaintiff, i. e., the interveners, were not necessary parties to a complete determination of the action. [Sec. 598, R. S. 1899.] Had objection to the petition, for the causes intimated, been made either by motion or demurrer, the petition could only been sustained, if at all, under section 20 of article 9 of the city charter, under which the interveners were permitted to intervene, the validity of which section would necessarily have been involved. But as this was not done, and as objection to the action of the court in overruling the motion to strike out said intervening petitions was waived as aforesaid, that section of the charter is not before us for review.

It is asserted by defendants that the ordinance directing the improvement, and the contract therefor, were both illegal and void, and, being so, cannot authorize a recovery by the interveners. The force and efficacy of this objection depend upon the determination of the question as to whether the defendants are in a position to avail themselves thereof. It appears from the evidence that the work was completed, and taxbills in payment thereof issued and turned over to the contractor, all in accordance with the terms of the contract. Under these circumstances it would seem that defendants are in no position to say that the contract and ordinance under which the work was done were void, and thus escape the obligation to pay for the material used by the contractor in the construction of the work. The property owners against whom the taxbills were issued are not here complaining, nor will their rights be in any way affected by this suit, whatever the result may be. The controversy is between the contractor and the sureties upon his contract bond upon the one side, and the companies that furnished material for the work upon the other.

City of St. Louis v. Davidson, 102 Mo. 149, was an action upon a bond given by the defendant, Davidson, to the city to secure the performance of a contract on his part with the city, which contract purported to confer power on Davidson to work the city prisoners then in the workhouse at so much per head per day. After working the prisoners for several months, under the contract, the defendant Davidson abandoned it, and an action was then brought by the city, on the bond, to recover the amount due the city for labor of the persons so employed and not paid for. The defense interposed was that the contract was illegal and void as against public policy, and because the city had no authority to make the contract. The court said: “But upon a yet broader ground the defense set up in, the answers cannot be maintained; the contract was not prohibited by law. The principal in that contract has derived benefits under it; he cannot retain those benefits and repudiate the source from which they spring by denying the validity of the contract in which they originated. In short, he is estopped to grasp the benefits of that contract with one eager hand, while thrusting aside its burdens with the other.” That case was followed, with approval, in Devers v. Howard, 88 Mo. App. 253, and again in the City of Unionville v. Martin, 95 Mo. App. 28.

The appellants are estopped to deny the validity of the contract because it has been fully executed. [Land v. Coffman, 50 Mo. 243; Ragan v. McElroy, 98 Mo. 349; Conn. Mutual Life Ins. Co. v. Smith, 117 Mo. 261; Bank v. Trust Co., 187 Mo. 494.]

The contract between the materialmen and the contractor is independent of the contract between the city and the contractor; therefore, the relief to which the materialmen are entitled does not depend upon the contract between the city and the contractor, but upon that between them and the contractor. The fact, therefore, that the contract between the city and the contractor may be invalid, can have no effect upon the contract between the materialmen and the contractor.

The case of the United States to use v. National Surety Company, 92 Fed. 540, raises the identical question presented on this appeal. In that case the contractor gave bond for public work provided for by a United States statute, which provided for the securing to the government the faithful performance of the contract and the protection of third persons from whom the contractor might obtain labor and material for the prosecution of the work. After the bond had been executed, it was changed by the government and the contractor, without the knowledge of the sureties of the contractor’s bond. In a suit on said bond by the materialmen the sureties claimed release from the bond by reason of said change. The court said: “The bond which is provided for by the act was intended to perform a double function, in the first place, to secure the government, as before, the faithful performance of all obligations which a contractor might assume towards it; and, in the second place, to protect third persons from whom the contractor obtained material or labor. Viewed in its latter aspect, the bond, by virtue of the operation of the statute, contains an agreement between the obligors therein and such third parties that they shall be paid for whatever labor or material they may supply .to enable the principal in the bond to execute his contract with the United States. The two agreements which the bond contains, the one for the benefit of the government, and the one for the benefit of third persons, are as distinct as if they were contained in separate instruments, the government’s name being used as obligee in the latter agreement merely as a matter of convenience. In view of these considerations, we are of the opinion that the sureties in a bond, executed under the act now in question, cannot claim exemption from liability to persons who have supplied labor or material to their principal to enable him to execute his contract with the United States, simply because the government and the contractor, Avithout the surety’s knowledge, have made some changes in the contract, subsequent to the execution of the bond given to secure its performance, which do not alter the general character of the work contemplated by the contract or the general character of the materials which are necessary for its execution. "When the government has executed the contract and taken and approved the bond, it ceases to be the agent of third parties whom the contractor employs in the execution of the work or from whom he obtains materials, and the rights of such persons under the bond are unaffected by subsequent transactions between the government and the contractor. If such were not the case, it would be possible for the contractor and some officer of the United States, by making some change in the contract or specifications, to deprive laborers and materialmen of all recourse against the sureties in the bond after they had supplied materials and labor of great value in reliance upon its provisions. It is not probable that such a result was contemplated by the lawmaker. On the contrary, the act bears every evidence that it was intended to provide a security for laborers and materialmen on which they could rely confidently for protection, unless they saw fit, by their own dealings with the contractor, to relinquish the benefit of the security. We are confirmed in these views by the following authorities: Dewey v. State ex rel., 91 Ind. 173; Conn v. State ex rel., 125 Ind. 514; Doll v. Crume, 41 Neb. 655; Kauffman v. Cooper, 46 Neb. 644; Steffes v. Lemke, 40 Minn. 27.”

In the case of School Dist. ex rel. v. Livers, 147 Mo. 580, the defendant acquired the contract for erecting an addition to Central High School in Kansas City and gave a bond in a designated sum, conditioned that the bond was executed not only for the protection of the School District, but also for the benefit of all parties who might use material in the building, and any such parties having unpaid bills therefor might in the name of the school district maintain an action on the bond to recover the amount of such bills. In a suit upon the bond the court said, page 584: ‘ ‘ The bond is dual in its nature, being for the benefit and protection of the school district against loss or damages for the non-fulfillment of their contract by the contractors, and the payment by them of laborers for work done, and of materialmen for materials furnished, rights which when once fixed could not be destroyed or taken away by any act of the school district.” [City of Bethany v. Howard, 149 Mo. 504; Kansas City to use v. McDonald, 80 Mo. App. 444; St. Louis to use v. Von Phul, 133 Mo. 561; Devers v. Howard, 88 Mo. App. 253, l. c. 257.]

The city, in requiring bonds from contractors for public work, was in discharge of a moral obligation to the laborers employed upon such works and the materialmen who furnished material therefor, in the absence of which bond they are without recourse for compensation. A similar bond was involved in the case of St. Louis to use v. Von Phul, 133 Mo. 561, in which MacFarlane, J., speaking for the court, said: “Through considerations of public policy, the law has made no provision by lien, or otherwise, for the protection of the laborer and materialmen for labor employed or materials used in improving the public streets. • But it cannot be denied that the same equity exists, and that the same moral obligation rests upon the city to protect those who improve its streets as rest upon those making private improvements. ‘Individuals clothed with public functions, even when constituting a corporation, are no more excused from moral obligations than when acting in a private capacity’ citing Knapp v. Swaney, 56 Mich. 350. In the case of Levers v. Howard, 88 Mo. App. 253, the object of the bond was twofold: for the faithful performance of the work, and for the purpose of securing all persons who might perform labor or furnish materials for the construction of the well. Plaintiff was a materialman and sued on the bond for the material used in the construction of said well. The finding of the trial court was for the plaintiff, and upon appeal the same was affirmed by the Kansas City Court of Appeals. The right and power of the city to require the bond in question was challenged by the defendant, and the court said: ‘ ‘ Since the decision of .the case of 144 Mo. 680, and in St. Louis v. Von Phul, 133 Mo. 561, and Rogers v. Gosnell, 58 Mo. 590, it is no longer an open question but what a city has the right to require such bond as the one in question herein.” [Devers v. Howard, 144 Mo. 671.]

Our conclusion is that the judgment is for the right parties and should be affirmed. It is so ordered.

All concur.


author: FOX, J.

text:
    GIVENS, Appellant, v. McCRAY et al.
    Division Two,
    May 22, 1906.
    1. DEED OF TRUST: Sale: Trustee’s Duty. It is fundamental that the trustee in conducting the sale of real estate under the powers conferred upon him by a deed of trust, must discharge his duties impartially, with the view of protecting the interests of all parties interested in the property. While he ' is vested with a discretion as to the manner of conducting the sale, that discretion must always be exercised in such manner as will produce the best results for those interested in the property.
    2. -: Sale in Parcels: Cotenants. One cotenant who owns five-eighths interest in the land subject to the deed of trust does not have the right to insist that the land be subdivided and only so much of it he sold as will pay the debt and costs. He -would have such right if he were the sole owner. But the other cotenants have rights, and the sale must be conducted in a way that will produce the best results to all the parties interested.
    3. -: -: -: Homestead: Allegations. The owner of a forty-four-acre homestead died leaving it subject to a debt of $150 secured by a deed of trust. He left a widow and eight children, and soon after his death the widow died, and plaintiff acquired the interest of five of the children. At the sale plaintiff demanded of the trustee that he sell only so much of the land as would pay the debt, and offered to bid $225 for any ten acres of the tract that might be sold, and alleges in his petition that if ten acres had been sold it would have brought the entire debt, and not resulted in impairing the value of the rest, hut does not allege that the tract had any natural or surveyed subdivisions. The land brought $1,640, and it is alleged that it was reasonably worth $2,200. At the time of the sale there were two minors, who, it is alleged, will not reach their majority until 1912, and who had a homestead interest in the property. They are made defendants to this suit to set aside the sale, and through their guardian are resisting the suit. tí eld, that there is nothing in these facts which indicate that the trustee abused his discretion, and the allegations do not state a cause of action.
    4. -: Setting Aside Sale: Facts Not Pleaded. The right of a plaintiff to have a sale under a deed of trust set aside, depends on the allegations of his petition. Where there are no allegations of fraud or abuse of discretion on the part of the trustee, and none that the sale was made in hulls: hy the trustee for the purpose of increasing his fees, those matters cannot he considered, even hy a court of equity, in passing on the sufficiency of the petition.
    Appeal from Daviess Circuit Court.—How. J. W. Alexander, Judge.
    Aeeirmed.

      Selby & Givens and Hicklin, Leopard S Hicklin for appellant.
    It was the duty of the sheriff, as trustee, to act for the interests of all parties. When requested by a party in interest, he should have sold in parcels, and not have sold more than was necessary to pay the debt and expenses. Plaintiff was entitled to have his interest in land and not have it converted into cash, against his protest. Kelly v. Hunt, 61 Mo. 469; Tatum v. Holliday, 59 Mo. 428; Chesley v. Chesley, 49 Mo. 541; Crosley v. Bank, 107 Mo. 437; Yeaman v. Lepp, 167 Mo. 61; State ex rel. v. Yancy, 61 Mo. 397; Gordon v. O’Neil, 96 Mo. 356; Sumrall v. Chaffin, 48 Mo. 403.

      Gillihan & Gillihan and Boyd Dudley for respondents. ’
    Sales en masse, instead of in parcels, do not constitute sufficient grounds for setting aside a trustee’s deed, unless accompanied by fraud, unfair dealing, or abuse of confidence on the part of the trustee, and some of these must be shown, and injurious results must attend the sale, whereby some interest is sacrificed, before a court of equity will be warranted in setting aside the deed. There are none of these things alleged in the petition and it consequently neither stated a cause of action nor equity. Lazarus v. Caesar, 157 Mo. 212; Tatum v. Holliday, 59 Mo. 428; Benkendorf v. Yincenz, 52 Mo. 444; Carter v. Abshire, 48 Mo. 302; Bank v. Stumpf, 73 Mo. 311; Chase v. Williams, 74 Mo. 429.
   FOX, J.

This cause is here upon appeal from a judgment of the Daviess Circuit Court upon a demurrer to a petition filed by the plaintiff to set aside a sale. The cause of action stated to which the demurrer was sustained, was as follows:

“Plaintiff, for his amended-petition and cause of action herein, filed by leave of court, says that defendant Robert D. McCray is the duly elected, qualified and acting sheriff of said Daviess county, and has been since the first day of January, 1901; that defendants Lewis Butler and Malinda M. Butler are minors under the ages of twenty-one and eighteen years respectively; that defendant Archibald Youtsey is the duly appointed guardian of said minors; that -one James Butler died intestate seized and possessed of the following described real estate in said Daviess county, to-wit, all north of the "Wabash railroad of the west half of the southeast quarter of section thirty-six in township fifty-nine of range twenty-seven, containing forty-four acres; that at the time of his death the said James Butler was the head of a family and occupied said real estate as 'his homestead; that said Butler left surviving him his widow who died within a few months after the death of her husband, and eight children, two of whom are minor defendants who were under the age of sixteen years at the time of the death of their said father; that at the death of said James Butler there was a valid and subsisting encumbrance on said real estate in the form of a deed of trust to which all of the rights of said James Butler were subject; that said -deed of trust secured the payment, with others that matured at an earlier date, a certain note of date March 7, 1891, for $150, due March 7, 1898; that all of said notes secured by said deed of trust, except- the one for $150 becoming-due March 7, 1898, were paid as they became due; that plaintiff is now the owner ofsix-eighthsofsaidreal estate and was at the time of the sale thereof under and by virtue of said deed of trust, as hereinafter stated subject to said deed of trust, the owner of five-eighths of said real estate and had been so the owner since the — day of November, 1901; that default having been made in the payment of said note for $150, becoming due March 7, 1898, and the trustee to whom said real estate was conveyed in and by said deed of trust, being permanently absent from this, the State of Missouri, and there being a provision in said deed of trust for the acting sheriff of said Daviess county to sell in the event of said trustee’s absence from this State; that by reason of such absence of said trustee and by virtue of said provision for the acting sheriff to sell, defendant advertised said real estate for sale under the terms and conditions of said deed of trust at the public square in the city of Gallatin in said county and state on the first day of August, 1902, and on the said day last aforesaid did sell the whole of said real estate at once and in bulk to the defendant Marcus Tolen for the price and sum of $1,640, against the desire and protest of plaintiff; that on the day of sale, but before it had occurred, plaintiff demanded of the defendant McCray that he sell a less part of said real estate than the whole to make the amount of said note and the costs and expenses of sale, but that defendant McCray refused so to do; that at the time of such demand plaintiff, who is solvent and amply responsible for any bid or agreement he might make, offered to defendant McCray to bid and pay $225 for any ten acres of said real estate that he, McCray, might carve out of the same, said sum of $225 being more than sufficient to pay the amount due or claimed on said note and all costs and expenses of sale, and demanded that he, the said McCray, select and offer for sale ten acres of said real estate, but that he refused so to do, and afterwards sold the whole of said real estate in bulk to defendant Marcus Tolen as aforesaid, who has received a deed therefor from said McCray; that had said ten acres been offered as requested by plaintiff, it would have brought its full value per acre as a part of the whole of said 44-acre tract, and not resulted in impairing in value the remainder of said tract; that said tract of 44 acres was reasonably worth $2,200 at the time of its sale, and that by reason of selling the same in bulk great injury resulted to this plaintiff and other owners thereof; that defendant minors own the other two-eighths of said real estate, subject to said deed of trust, each of the two owning one- eighth thereof; that said minors will not attain their majority until 1912; that until said minors do arrive at full age, they are entitled to the use and benefit of the entire proceeds of said sale to the exclusion of the participation of plaintiff therein. "Wherefore plaintiff prays that said sale be set aside and for naught held and for such other relief as may be proper.”

To this petition the following demurrer was interposed:

“Comes now defendants R. D. McCray, and Lewis Butler and Malinda M. Butler, by their guardian and curator, Archibald Toutsey, and demur to the amended petition of plaintiff’s filed in the above-entitled cause and assign the following grounds of demurrer, to-wit:
“1. Because the petition fails to state facts sufficient to constitute a cause of action in favor of plaintiff and against the defendants or either of them.
“2. Because this proceeding being a suit to set aside a trustee’s deed under sale is a suit in equity and said petition states no equity.”

This demurrer filed by the defendants was by the court sustained, and plaintiff declining to plead further a formal judgment was rendered upon the demurrer in favor of the defendants. Motions for new trial and in arrest of judgment were timely filed and by the court overruled, and hence followed the prosecution of this appeal to this court by the plaintiff and the record is now before us for consideration.

OPINION.

It is apparent that there is only one legal proposition involved in this proceeding. Appellant insists that the trial court erroneously sustained the demurrer to his petition and that is the only question presented for consideration.

We have carefully analyzed the petition in this cause which was successfully challenged by the demurrer in the court below, and have reached the conclusion that such petition does not state a cause of action which would authorize the interference by a court of equity with the sale made. It will be observed that this was a sale by the sheriff acting in the absence of the trustee in foreclosing a deed of trust upon the land as described in the petition, which consisted of only 44 acres.

It is fundamental that the trustee must in all cases in conducting sales of real estate by reason of the powers conferred upon him by the deed of trust, discharge his duties impartially with the view of protecting the interests of all parties who may he interested in such property, and it is also well settled and fully recognized by the law upon this subject, that trustees are vested with a discretion as to the manner of conducting their sales, and this discretion should always be exercised in such manner as will produce the best results for those interested.

The demurrer to the petition admits the truth of all the allegations properly pleaded in the petition, and the petition in this cause shows upon its face that the plaintiff and three of the children of James Butler, deceased, were interested in this land, and so far as the sale under the deed of trust was concerned, plaintiff and the three children interested in the land occupied a relation to such sale similar to that of the original debtor. There would he no question that, if the plaintiff in this case had been the only person interested in the real estate subject to the deed of trust, he clearly would have had the right to have insisted on such land being subdivided and so much of it sold as would pay the debt and costs to which it was subjected by reason of the deed of trust, but this does not follow if other persons also have interests in such real estate. In that event the trustee must exercise such discretion in selling as will produce the best results to all parties interested. This case is unlike any of the cases cited by appellant in support of the contention that the petition states a good cause of action.

The case of Kelly v. Hurt, 61 Mo. 463, was a sale by the sheriff of Saline county foreclosing a mortgage given to the county for money borrowed by the plaintiff. In that case it will be observed that the sale was in the nature of an execution, for the court says that the petition will be treated as averring that the sale was made by the sheriff in obedience to an order of the county court to foreclose a mortgage. It will be noted in that proceeding that there were no conflicting interests to be protected by the sheriff, and the petition averred that the land was worth $4,500, and it further appeared from the petition that the land sold consisted of two eighty-acre tracts and two forty-acre tracts, which did not adjoin each other; that one forty-acre tract lies three or four miles from the remainder of said lands. It further appeared from the petition in that case that the land consisting as it did of separate tracts, was sold in mass for the sum of $1,380, to satisfy a debt of $1,082.66, which was then due on said mortgage. From the allegations of the petition in that case it clearly appears that the land was susceptible of division and that it was unnecessary to sell the whole of said land to satisfy said mortgage debt. The further allegation appeared in that petition, that if the land had been sold in parcels or separate tracts, it would have brought a much larger sum than was paid for the same by defendant. It also appeared from the petition that the plaintiff had no knowledge of the sale-so made in time to move to set the same aside. It is clear that there is no similarity between the facts appearing in the petition in that case and those in the case at bar.

State ex rel. v. Yancy, 61 Mo. 397, was a case npon motion to set aside a sale made under an execution by the sheriff, and upon' the hearing of said motion there was only one person interested in the entire estate sold and that was Mrs. Dickson, and she manifestly under the facts in that case was in a position to complain, and we take it that it is clear that the rule therein announced as applicable to the question before the court falls far short of furnishing any support to the contention of appellant in the case at bar.

What is said in the two cases above referred to is equally applicable to the case of Gordon v. O’Neil, 96 Mo. 350, cited by appellant. It will be observed in that case that there is no similarity of averments in the petition npon which relief was sought, to the allegations in the petition in the case at bar. Black, J., speaking for the court in Gordon v. O’Neil, said that “the substantial averments of the petition are: That Doughtery, who was a deputy sheriff, and O’Neil conspired together to purchase the property at a nominal consideration, and pursuant thereto prevented other persons fromhidding, so that O’Neil became the purchaser at fifty-one dollars, the property being worth thirty-dive hundred dollars; that the lot should have been divided and a part only sold. ’ ’ The petition in this case, the sufficiency of which is challenged by the demurrer, contains no statement or averment which in any way approaches the statement of a cause of action similar to the Gordon-O’Neil case.

The case of Tatum v. Holliday, 59 Mo. 422, is very much unlike the case at bar. It was an action in equity to set aside a sale made under a deed of trust and asking the chancellor for permission to redeem. The plaintiffs in that case were the widow and the minor children of David Tatum and were the only parties that were interested in the land and clearly they had the right to insist upon a division of the property in making the sale. They were the only parties in respect to such sale that stood in the relation of the original debtor; therefore, they were in a position to demand of the trustee to adopt such method and manner of sale as would render it most beneficial to the debtor.

Take this case and the allegations of the petition, which are to be taken for the purpose of this demurrer as true, and it is manifestly a different state of facts to those relied upon for relief in the numerous cases cited by appellant. 1 In the case at bar we have only a small tract of land of 44 acres, which was left to the widow and minor children surviving James Butler, deceased, as a homestead. The widow and minor children upon the death of James Butler had the joint right of occupancy of such homestead, and the minor children had the right to occupy and enjoy the benefits of such homestead until they arrived respectively at their majority. Mrs. Butler, the widow of James' Butler, deceased, died shortly after her husband, hence the minor children were left with the right to occupy and enjoy the homestead so left by their father until they arrived at their. majority. The plaintiff in this cause, Mr. Givens, purchased prior to the sale under the deed of trust, the interest of five of the children in such homestead. His interest so acquired was not only subject to the deed of trust which was given before the death of James Butler, but was subject to the homestead rights of the widow and minor children in such real estate. In other words, the interest, so acquired by plaintiff could not be actively asserted so as to participate in any of the rents or profits of such real estate until after the expiration of the homestead rights of the widow and the minor children. At the time of this sale there were two minor children entitled to occupy and enjoy the benefits of such homestead until they reached their majority, and after the expiration of their homestead rights they were each entitled to one-eighth interest in fee in such real estate.

It is clear that the plaintiff in this proceeding had. no absolute right to control the manner or method of sale under the deed of trust, and it is equally clear that under the facts alleged in the petition there were others interested in the sale of this property, the protection of whose interests the trustee was not at liberty to ignore; therefore, the condition confronting the trustee at said sale was one which required him to exercise a proper and sound discretion as to the manner and method of such sale and he was simply bound to act in good faith and adopt such reasonable methods of proceeding with the sale as would produce the most beneficial results to the parties interested. That the trustee under this deed of trust had the right to sell this property there can be no doubt; that right and power was expressly conferred by the deed of trust. It is equally clear that according to the allegations in the petition this was a case in which no particular one of the parties interested had the right to control the manner and method of sale, and that it was clearly a case the circumstances of which required the exercise of a sound and proper discretion by the trustee in making the sale. "While on the one hand it may have been to the interest of the plaintiff to have carved out of this 44 acres a small portion of it to satisfy the deed of trust, yet on the other hand the interests of the minors were unlike the interests of the plaintiff. While it may be that practically the value of the remainder of the land would not have been impaired, by reason of the sale of part of it to pay the debt, yet the occupancy and enjoyment of it as a homestead, which the minor children had the right to, may have been greatly impaired, and in fact so far as the occupancy of it as a home, have been absolutely destroyed. Therefore, the trustee may have justly concluded that to have carved out ten acres of the homestead would have been injurious to the minor children, and may have very logically reasoned that the parties interested in this land were interested in it for what it was worth, and that it would realize more if sold in bulk than if a small portion was carved out of an already small tract of land and sold to satisfy the deed of trust. It may also have occurred to the trustee, and it doubtless does occur now to the curator of these minors, who is resisting the proceeding to set aside the sale, that in the event of carving out ten acres of this land to sell to satisfy the deed of trust, and the retention of the remainder by the parties interested, that at best it would only be a few years until the remainder, which clearly would not be susceptible of division in kind, would be sold for the purpose of partitioning the interests of these three children and the interests of the plaintiff, and therefore concluded that the sale of the entire land under this deed of trust would bring its full value, and that the proceeds were simply a fair substitute for the land, and that after the payment of the amount of the deed of trust, the remainder would be held for the benefit of those who were entitled to enjoy the occupancy of the land during their minority, and after reaching their majority such proceeds would be divided in accordance with the respective interests of the parties.

"What we have said was simply deemed appropriate for the purpose of marking the distinction between this case and those cited by appellant, and of indicating that upon the facts as alleged by the plaintiff this was a case in which the trustee was vested with discretion, and was only bound to act in good faith and adopt such methods of procedure in respect to this sale as would result most beneficially to all the parties interested, and to indicate the necessity in a proceeding to set aside such sales of at least making such allegation and averments in the petition which, if taken as true, would show an abuse of discretion and an improper and unsound exercise of it by the method and manner of proceeding in the consummation of such sale.

Recurring now to the allegations of the petition as well as the essential and material allegations which should be embraced in it, we find on the one hand the sole grounds alleged for equitable relief, in this case, the statement that plaintiff demanded that a less part of such land than the whole be sold to make the amount of said debt and costs, which demand was refused by the trustee; that plaintiff offered to bid and pay $225 for any ten acres of said land, which was more than enough to pay the debt and costs; it is also alleged that said minors will not attain their majority until 1912; that until said minors do arrive at full age they are entitled to the use and benefit of the proceeds of such lands to the exclusion of the participation of plaintiff therein. On the other hand an analysis of the petition shows an entire absence of any allegation or averment that this small tract of land of 44 acres had any. natural subdivision or subdivisions by surveys; no allegation that it was in any way divided into small tracts or that it was held by separate holdings, so that these minors could have occupied and enjoyed the remainder of said land as a homestead, or that the land would sell for more by being divided, but on the contrary the petition alleges that the plaintiff offered to bid and pay $225 for any ten acres, and if that is to be taken as a criterion of value upon the subdivision of the land, the sale demonstrated that each ten acres of that small tract of land brought when sale is made $20 more on the acre than plaintiff offered to bid and pay for any ten acres in the premises if it had been divided. It is not alleged that any person would have given more than $225 for any ten acres the trustee might carve out if he had sold that way. There is an entire absence from this petition of any allegation'of fraud, unfair dealing, misconduct or abuse of discretion on the part of the trustee. There is no complaint upon the ground of inadequacy or insufficiency of the consideration realized for the land. It is simply stated in the petition that the land was reasonably worth $2,200, but it is manifest from the allegations in the petition that plaintiff does not predicate his right of relief upon the ground of the insufficiency of price paid for the land.

As to the allegation in the petition that the minor defendants would not reach their majority until 1912 and would enjoy the use and benefits of the entire proceeds of such sale to the exclusion of the participation of plaintiff, we might stop to inquire as to what different attitude would plaintiff be in respecting the remainder of the land if it had not been sold? He would not be enabled to participate in any rights of enjoyment, rents or profits of the remainder of such land until the minor defendants reached their majority, hence that allegation fails to show any injury whatever to the plaintiff.

There is a further complaint in the brief and argument of counsel for appellant that the whole petition when fully' considered charges unfair treatment and abuse of discretion on the part of ‘the sheriff as trustee; however, with commendable frankness, learned counsel for appellant concedes that no such words are used in the petition. It is also insinuated that the sheriff made this sale in bulk for the- purpose of increasing the amount of his commission upon such sale. If such was the fact clearly there should have been some averment of that kind in the petition. We have carefully considered the petition and we are unable to agree with counsel, when fully considered, that it shows any abuse of discretion on the part of the trustee. If there was such abuse of discretion in such sale there is only one way in which you can call into action the powers of a court of equity, and that is by alleging it in the petition which seeks the relief. The relief sought in the petition is based upon the ground as heretofore indicated, which in our opinion does not sufficiently state a cause of action.

The correct rule as applicable to the question presented in this case is nowhere more clearly or correctly stated than in Benkendorf v. Vincenz, 52 Mo. l. c. 444. It was there said: “While it is true that sales of this character will be narrowly watched, and every possible safeguard thrown around the interest of him who has been truly called ‘a servant to the lender;’ yet the mere fact that the property conveyed by deed of trust is sold in gross is not per se sufficient to avoid the sale; and no case that I am aware of has gone to that length. There must be some attendant fraud, unfair dealing, or abuse by the trustee of the confidence reposed in him; or some resulting injury from a sale made in this way, in order to obtain the aid of a court of equity to divest a title thus acquired. In the very nature of things some latitude of discretion ought in this regard to be allowed the trustee; indeed, the very instrument conferring the power contemplates this, and so long as his acts are free from any suspicion of bias, and that discretion is not arbitrarily nor unsoundly exercised, those acts will be exempt from equitable interference. ’ ’

In the case of German Bank v. Stumpf, 73 Mo. l. c. 314, it was expressly ruled that “the mere fact that property which is susceptible of division, has been sold in mass, will not render a trustee’s sale void. It is only where substantial injury has been inflicted by a failure to subdivide and sell in parcels, that a court of equity will interfere and set the sale aside.” The cases last cited were followed and approved in Chase v. Williams, 74 Mo. 429.

In the case of Lazarus v. Caesar, 157 Mo. 199, Gantt, J., speaking for this court, reviewed all the authorities upon this subject, and thus announced the conclusions, in which all the members of this division concurred: “While it may be conceded that where a tract of land has been divided into parcels or lots for separate and distinct enjoyment, the presumption is that the property will realize more when sold in parcels than in one piece, because such a sale will better correspond to the probable wants of the purchasers and their ability to purchase, this is by no means a conclusive presumption. On the contrary, the books abound with cases which hold that a discretion is vested in the trustee to sell in the way which will produce the largest sum, and this court has often refused to disturb a sale en masse simply because the land was not sold in parcels, but has required, in addition, evidence of fraud, unfair dealing, or abuse of confidence. Thus, in Carter v. Abshire, 48 Mo. loc. cit. 302, this court said: ‘A trustee, in exercising his duties and powers under a trust deed, is a trustee for the debtor, and is bound to act in good faith and adopt all reasonable modes of proceeding in order to render the sale the most beneficial to the debtor. Therefore, where property will bring more by being separated when sold, it is the duty of the trustee to pursue that course, whether the deed contains a direction to that effect or not .... But no general rule can be laid down for the government of trustees on this subject. In some cases the sale of an entire tract will be more judicious and better subserve the interest of the debtor than a division in parcels. A farm or a piece of real estate may derive additional value from its unity or entirety. ’ ’ ’

We see no necessity for pursuing this subject further. We are unwilling to assent to appellant’s contention that the mere statement that the trustee had sold the land in bulk and refused the request of plaintiff to sell a less quantity, and the offer to bid and pay $225 for any ten acres carved out of the 44 acres, and that such failure to make such sale as requested and desired by plaintiff operated to his injury, in the absence of any substantial allegation indicating the true nature and character of this property, its susceptibility of division, or of any abuse of discretion or confidence on the part of the trustee in making such sale, or that in conducting such sale he in any manner acted otherwise than impartially with all the parties in interest, or did not exercise a proper and sound discretion in adopting methods and manner of the sale of such property, 'constitutes a statement of a good cause of action.

Entertaining the views as herein expressed, it results in the conclusion that the judgment in this cause should he affirmed, and it is so ordered.

All concur.