author: BROWN, C. — PER CURIAM. —

text:
    PAULINE FERGUSON, Appellant, v. W. M. ROBINSON.
    In Banc,
    May 20, 1914.
    1. TRUSTS: Constructive: Agreements to^ Discourage Bidding at Execution Sale. Equity will not assist one to save his property from appropriation to the just claims of his debtors, as, for example, by agreements to discourage bidding at execution sales.
    2. -: Express: Statute of Uses. All express trusts in lands must be manifested and proved by some writing signed by the party who is, or shall be, by law, enabled to declare such trusts. [R. S. 1909, see. 2868.]
    3. -: Resulting. Generally speaking, a resulting trust is one which the law implies to meet the requirement of justice that a legal status be given to what is the clear intention of the parties.

      i. -: Constructive: Definition: Fraud. Constructive trusts rest upon the sound public policy which requires that the laws themselves should not become the instruments of designing persons to be used for the purposes of fraud and oppression; fraud is their very foundation.
    5. --: -: -: -: Not Mere Violation of ■ Parol Contract. Where transactions have been tainted with bad faith, there is a .trust by operation of law; but the simple violation of a parol contract does not constitute such a breach of faith. It is not sufficient to call the transaction a fraud or a trust; there must be some' artifice or trick employed to make it so, and a confidence reposed by one party in another on the faith of which something has been lost on one side and gained on the other. Where a trust of this kind is sought to be enforced, fraud must be distinctly alleged and clearly proved.
    6. --: -: Evidence to Establish. Parol testimony, to establish a. constructive trust, must be clear, cogent and fully satisfying the chancellor. There should be no room for reasonable doubt as to the facts relied on.
    7. -: -: -: Creation, Terms and Limits. To establish a constructive trust by parol testimony, the creation of the trust, its terms and its limits must be shown.

      8. -: -: -: -: This Case. Evidence held not sufficient to establish, for the benefit of the execution debtor, a constructive trust against the purchaser of property at execution sale.
    9. -: Evidence: Oral Admissions. Evidence of oral admissions should be received with great caution; consisting as it does of the mere repetition of oral statements, it is subject to much imperfection and mistake.
    Appeal from Jasper Circuit Court. — Hon. David E. Blcdr, Judge.
    Affirmed'.

      J. J. Nelson, B. M. Sheppard, Norman 'A. Cox, Howard Gray and Hugh Dabbs for appellants.
    (1) Defendant, Robinson, agreed with Parker, before, and at the execution sale at Joplin, in October, 1908, that he would bid in the property for Parker, and allow him to redeem the same on repaying the amount required to purchase the same, his expenses, and a reasonable compensation for his time and trouble. Relying on this, Parker was induced to, and did, request Ashcraft, and other responsible bidders who attended the sale to bid on the property, not to bid, because Robinson was bidding it in for him. Robinson, himself, stated to Sharp who was a bidder, on the morning of the sale, that he was purchasing the property for Parker. By reason of this, and because of the impression created among the bidders that Robinson was buying the property for Parker the debtor, Robinson was enabled to, and did, purchase at this sale all of Parker’s equity and interest in this property, which interest was of the value of $75,000, at a great sacrifice to Parker, and for less than four per cent of its actual value.' Under these circumstances, it is inequitable, and unjust for Robinson to retain the property, and a court of equity will grant relief, and convert the purchaser into a trustee for the benefit of the debtor. Such a transaction does not come within the statute of frauds. Rose v. Bates, 12 Mo. 30; McNew v. Booth, 42 Mo. 189; Phillips v. Hardenburg, 181 Mo. 474; Slowey v. McMurray, 27 Mo. 113; Damschroeder v. Thias, 51 Mo. 1(B; O’Fallon v. Cloekton, 89 Mo. 284; Turner v. Johnson, 95 Mo. 431; Leahey v. White, 123 Mo. 207; Richardson v. Champion, 143 Mo. 538; Phillips v. Jackson, 2401 Mo. 335; Pomeroy, Eq. Jur. (3 Ed.),- secs. 1053, 1055; Perry on Trusts (6 Ed.), secs. 172, 215; 39 Cyc. 172, 176' (b). (2) Robinson, having by his acts and declarations, at and before the execution sale at Joplin, created an impression upon those attending the sale that he was buying the property in for Parker, thereby preventing competition in the bidding and obtaining an undue advantage to himself, will be declared by a court of equity to be a trustee for Parker whether there was any express agreement between him and Parker relative to the purchase of this property, or not. The fact that Robinson purchased the property in controversy for a grossly inadequate consideration, together with slight evidences of fraud, is sufficient to set aside this sale and make him a trustee for Parker, but when, as in this case, a large amount of property, — being the holdings of a lifetime of Parker, —are bought at public sale where those in attendance are under the impression that it is being purchased for the debtor, and at less than four per cent of its actual value, this is, in itself, such an inadequacy of consideration as to shock the moral conscience, and, as the setting aside of the sale and the granting of an accounting will not cause respondent to lose anything while a failure to do so will financially ruin the debtor, a court of equity will not hesitate to grant to plaintiff the relief prayed. Phillips v. Jackson, 240 Mo. 335; Leahey v. Witte, 123 Mo. 207; Phillips v. Hardenburg, 181 Mo. 475; Rose v. Bates, 12 Mo. 30; Slowey v. McMurray, 27 Mo. 113; State v. Elliott, 114 Mo. App. 562; Davis v. McCann, 143 Mo. 177; Hanson v. Neal, 215 Mo. 274.

      McReynolds & Halliburton for respondent.
    (1) If, under the petition in the case, the court can in any way construe it into an implied trust, then the plaintiff must fail because the evidence of such trust is not clear, strong, unequivocal, and so definite and positive as to leave no room for doubt in the mind of the chancellor. Curd v. Brown, 148 Mo. 92; Pitts v. Weakley, 155 Mo. 109 ; Garrett v. Garrett, 171 Mo. 159; Brinkman v. Gunken, 174 Mo. 709; Pleil v. Heil, 184 Mo. 666'. (2) The following agreements intended to create trusts are held to be within section 2868, R. S. 1909 (sec. 3416, R. S. 18991), and can only be proved by writing: (A) An agreement by wife to convey to her husband land which he has conveyed to a trustee for her benefit. Price v. Kane, 112 Mo. 412; Crawley v. Crafton, 193 Mo. 421. (B) An agreement that a warranty deed shall convey less than the whole title when there is no fraud or mistake and the deed was not intended as a mortgage. Rogers v. Ramey, 137 Mo. 598. (C) An agreement to purchase land at an execution sale and hold it for another. Hammond v. Cadwallader, 29 Mo. 166. (D) An agreement that grantee in a deed, absolute on its face, would sell the land as agent for the grantor and account for its proceeds. Peacock v. Nelson, 50 Mo. 256. (E) An agreement by the purchaser at a trustee’s sale that the purchase was merely to secure his debt, and that he designed afterwards to reconvey. Mansur v. Willard, 57 Mo. 347. (P) An agreement made at the time of the conveyance of the land that the grantee should pay off incumbrances thereon and should reeonvey on the grantor repaying him the money so advanced. Hill-man v. Allen, 145' Mo. 638; Miltenberger v. Morrison, 37 Mo. 71; Hull v. Small, 178 Mo. 629; Heil v. Heil, 184 Mo. 665. (3) If it should be admitted for the sake of argument for the plaintiff’s contention, that the defendant Robinson did agree to buy in Parker’s property under the circumstances alleged in plaintiff’s petition, yet the plaintiff could not recover for the transaction could be treated in no other light (in view of the conceded facts in this case) than as a contract with defendant to aid him — plaintiff—in the hindering, delaying and defrauding of his numerous other pressing creditors, and therefore, for this reason, it would be impossible for him to maintain this suit. Where the agreement made, tends or has for its purpose the hindering, delaying or defrauding other creditors, no trust can result to him who is guilty of the fraudulent scheme. Miller v. Davis, 50 Mo. 572; Burén v. Burén, 79 Mo. 538; Sells v. West, 125 Mo. 630.
   BROWN, C. —

This suit was instituted May 18, 1909, in the Jasper Circuit Court at Carthage, by Charles A. Parker, who has died during the pendency of this appeal, and it has been revived in the name of Pauline Ferguson, his only heir. It was tried at the June term, and on July 31,1909, after the evidence was all in, the plaintiff, by leave of court, filed an amended petition, which, omitting the caption, is as follows:

“Now comes the plaintiff and for his amended petition herein states that on the —--day of October, 1908, he was the owner of the following described real estate in Jasper county, Missouri, to-wit:
“The south half of the south half of section twelve, and the north half of the north half of section thirteen, township twenty-eight, range thirty-two, and two acres as follows: 165 feet east and west by 528 feet north and south off of the east end of the north two-fiftlis of the east fifty acres of the north half of the northeast quarter of section eighteen, township twenty-eight, range thirty-two; the north half of lots sixty-five and sixty-six in the original town of Webb City, and a tract beginning 23 feet north of the southwest corner of lot forty-five in the original town of Webb City, thence running east 100 feet; thence north 100 feet; thence west 100 feet; thence south 100 feet to place of beginning, and the undivided one-half of the north 37 feet of' lots forty-five and forty-six ipi the original town of Webb City, and fifteen acres in the southeast corner of the southeast quarter, and the undivided one half of the east twenty-five acres of the southeast quarter of the northwest quarter of section twenty-nine, township twenty-eight, range thirty-two; that on said day said property was worth the sum of one hundred and’ ten thousand dollars, and there was against it and other property owned by this plaintiff an aggregate indebtedness of forty thousand dollars; that the other real estate in said county belonging to this plaintiff and not specifically described above was of the value of forty thousand dollars; that certain judgments had been rendered against this plaintiff in the circuit court of Jasper county, Missouri, upon which executions had issued and the real estate above, described was advertised for sale by the sheriff of said county and the amount of the executions in the hands of the said sheriff were less than two thousand dollars; that the two acre tract above described at said time was free of mortgage and other liens except said judgment, and was of the value of three thousand dollars; that when said property was advertised for sale, and at all times mentioned in this petition, and for many years prior thereto, the plaintiff and the defendant were warm personal friends. The defendant used to be a practicing lawyer at the Jasper County Bar and during said time was the attorney for the plaintiff; that while the defendant was so practicing law, he was elected judge of the above named court and subsequently elected to the Supreme Court of the State, and after his term of office had expired, was again practicing law in Jasper county, Missouri; that when the plaintiff’s property above described was advertised for sale, lie appealed to the defendant, who was a man of large means, to hid in the property for him at the execution sales above mentioned, and agreed to pay the defendant therefor in addition to the amount expended hv the defendant, interest on expenditures, and in addition thereto, a reasonable sum for the services of the defendant.
“The plaintiff states that the defendant gave him to understand that he would so hid in said property under the terms above set forth:
“The plaintiff states that previous to the making of said arrangement, he had arranged with one Grant Ashcraft, of Webb City, a man of large means, to bid at said sale on said two-acre tract, and said Grant Ashcraft was then and there ready to hid the sum of three thousand dollars, but after the defendant had given the plaintiff to understand that he would bid in said property for him, and after making the arrangement with the defendant as above set forth, this plaintiff notified the said Grant Ashcraft not to hid on said property; that he had arranged with the defendant to hid in said property for him and give him a chance to redeem the same.
‘ ‘ The plaintiff states that, relying upon said promise and understanding with said defendant to so bid in said property, and believing that the defendant would bid in the same for this plaintiff, plaintiff made no further effort to have persons bid on his said property, hut instructed the said Ashcraft as aforesaid not to bid on the same.
“The plaintiff states that said property was offered for sale and by reason of the understanding that plaintiff had thereof, the defendant bid in said property as follows: The said two-acre tract for five hundred dollars, the said land in sections 12 and 13 for five hundred dollars, and the remainder of the property offered at said sale for the sum of eighteen hundred dollars.
“The plaintiff states that the said land in sections 12 and 13 at the day of said sale was well worth one hundred dollars per acre and the said Grant Ashcraft was then and there ready to pay the sum of fifteen thousand dollars on said property at said sale.
“The plaintiff further states that the balance of his said property was bid in by the defendant for the sum of eighteen hundred dollars, and that said property was well worth the sum of sixty thousand dollars at that date.
“The plaintiff states that the defendant after he had bid in said property, again repeated to this plaintiff that he would hold the same for him and give him a chance to redeem said property as he had previously agreed to do.
“The plaintiff further states that after the purchase of said property, a deed was made to this defendant for the same, and afterwards in the month of November, 1908, a part of said property with other property was again offered for sale, and this plaintiff, relying on the understanding he had with the defendant, made no effort to procure purchasers at said sale, and the defendant bid the same in at a nominal sum.
“The plaintiff further states that after the making of said agreement and the purchase of said property at execution sale by the defendant, and notwithstanding the arrangement made between the plaintiff and defendant, as above set forth, the defendant for the purpose of getting the complete title to said property, and for the purpose of getting the title of this plaintiff, and in violation of his agreement before said property was bid in, went to one J. W. Aylor, who held a mortgage upon said premises, and solicited and urged the said J. W. Aylor to foreclose his deed of trust upon said property; that at said time the defendant was in no wise interested in the foreclosure of the deed of trust held by said J. W. Aylor, and good faith and fair dealing required and demanded of him that he prolong the day of said foreclosure instead of soliciting said foreclosure.
“Plaintiff further states that by reason of, the solicitation of this defendant, said property and other property were advertised for sale under a deed of trust, and bid in by the defendant for the sum of twenty-eight thousand five hundred dollars, and the plaintiff states that at the time of said last sale, he still believed that the defendant was acting in good faith for him and did not know that the defendant at any time had solicited and procured the sale of said premises under said deed of trust.
The plaintiff states that had it not been for the arrangement made with the defendant, he could have procured bidders for said property, who would have paid a sum therefor exceeding fifty thousand dollars more than the entire indebtedness of this plaintiff.
“The plaintiff further states that the defendant now denies said agreement and claims to be the absolute owner of said property and that this plaintiff has no' right, title or interest therein.
“Wherefore the 'plaintiff prays the court for a judgment declaring that the defendant hold said property in trust for this plaintiff, and that the court ascertain the amount of the moneys expended by the defendant, determining the interest thereon, and fix a reasonable compensation to the defendant for his services and then provide a time in which this plaintiff should pay the same and when the same is paid that the defendant be divested of the title to said premises.
“Howard Gray and
“G. E. Booth,
“Attorneys for Plaintiff.”
■±'he answer states, in substance, that all the land described in the petition except the two-acre tract in the northeast corner of section 18, township 2& of range 32 was, at the time of the execution sales mentioned in the petition, and had for a long time been covered with deeds of trust made by plaintiff to secure indebtedness aggregating about $40,000, and was subject to tax liens and tax judgments, and judgments in favor of individual creditors, amounting, in the aggregate, to about $20,000; that he purchased all the real estate at execution sales under judgments of various creditors of plaintiff; that he also purchased the north half of lots sixty-five and sixty-six, and the north seventy-seven feet of lots forty-five and forty-six of the original town of Webb' City, and lot ten in Webb’s Second Addition to Webb City, at foreclosure sale made by Samuel McReynolds, trustee, and received a trustee’s deed, paying therefor $1392.33; also purchased a note signed by plaintiff and wife and secured by a» prior deed of trust executed by 'them, paying therefor $15467.75, the amount of principal and interest due thereon; and that defendant' himself held a note secured by deed of trust on the tract in sections 12 and 13, on which about seven thousand dollars of principal and interest is due. The answer denies every other allegation of the petition not so admitted.

The answer further says that after his purchase of the two-acre tract at the execution sale, he told plaintiff if he would find a purchaser for it he would give him all over the sum of $1000 that might be realized on such sale, which he is still willing to do. To the affirmative matter in the answer, issue was taken by reply.

On the trial Mr. Prank Sharp, secretary of the McNeal Machinery Company, testified that his company had a judgment of fourteen hundred and odd dollars against Mr. Parker. It was under an execution issued on this judgment that the sale was made at which the defendant purchased and that the latter told him, after the sale, that he was bidding it in for Charley [Parker]. This witness further testified that before the sale he had tried to get the defendant to stand in with him to bid in the property, but could not, and that he was at the sale to hid, and that in each instance he made the last bid before Mr. Bobinson.

Mr. Aylor, the beneficiary in the deed of trust under which the defendant afterward purchased a part of the property, said that Judge Bobinson asked him to close it out — that he wanted to get his money. That he had told defendant that if he did push the thing he wanted him to take care of Mr. and Mrs. Parker, and that defendant said that all he wanted was to get his money and expenses out of it, and that Mr. and Mrs. Parker might have the rest. The witness said that was the only thing he would do. He traded off his note to a man named Thompson, in Texas, and went to Mr. McBeynolds, the trustee, and it was closed out. This witness said he was in Kansas City at the time of the execution sale, but would have been present to bid in the property if he had known there was no understanding; if it hadn’t been already fixed up he would have been present to hid on it. On cross-examination this witness said: “He never said he was going to buy it in for Parker, but he said all over what was coming to him would go to Parker. All he wanted out of it was what was coming to him and expenses.” He also said that he proposed to Bobinson that they stand in together and buy in the property. He also said that he had asked Mr. Mc-Beynolds to see Mr. Bobinson about buying the Parker paper. He did not know whether he had consulted a lawyer about bringing this suit for Parker before he had talked with Eobinson about it or not.

Mr. Parker himself testified that when the property was first advertised for sale under the execution he had Mr. Booth write to Judge Bobinson to come down. He came, and the plaintiff saw him on- the morning of that sale. He said he would bid the property in and give plaintiff a reasonable length of time in which to redeem it — to pay him his money and for his trouble and time. Had first spoken to Grant Ashcraft because Judge Robinson was so late in coming. Mr. Ashcraft showed up at the sale, and plaintiff told him there was no use to bid because of the arrangement with defendant. At the sale under the Aylor mortgage he made no effort to procure a bidder. Ash-craft was at the sale, and had made an arrangement by which he was to bid for the two-acre tract, which was supposed to be unencumbered, and enough to pay off the execution and judgment under which the levy was made, but when he got over there he found two unsatisfied mortgages on it. Plaintiff called Judge Robinson over to explain to Ashcraft that if the mortgages had been paid they were not a lien on the property, but this did not satisfy Ashcraft, and for that reason he would not and did not bid. The two-acre piece was sold first, and bid in by defendant for five hundred dollars, the plaintiff remarking, “You fellows are robbing me in buying in my property at these prices.” This, he says, was said “for its effect on outside bidders. ’ ’

The defendant denied that he made any agreement or had any understanding with the plaintiff that he would buy in the property for him at the execution sale, although he told him, after the sale, that he could redeem the two-acre tract on the terms mentioned in his answer, and that offer was still open. He also stated that after the execution sale, at which he had paid $2800 for such interest as could be sold under the McNeal judgment, he might have stated and probably did, as he felt that way, that all he wanted was to be let out on account of his expense already incurred and work done in that matter and that Mr. Parker might have the rest. After the sale plaintiff found a purchaser who was willing to pay $3000 for the two-acre tract provided he could get a good title, or even a warranty deed from defendant, who was willing to make a quitclaim deed or a warranty deed subject to the dower of Mrs. Parker, who was separated from her lmsband; and he is still willing to do so.

The other lands involved in defendant’s purchase under the execution sale were encumbered with deeds of trust in which Mrs. Parker had released her dower. After the execution sale the defendant took steps to secure the foreclosure of one of these held by Mr. Aylor, in which Mr. McReynolds was trustee. Mr. Aylor proposed to Mr. Parker to stand in with him and buy the property, bait they failed to come to an agreement, and when the property was advertised by the trustee to be sold March 8¡, 1909, the plaintiff procured Mr. G. E. Booth, who was one of his attorneys in this case in the trial court, to communicate with the defendant for the purpose of inducing him to buy at the sale for his benefit. Mr.' Booth did so, and the matter proceeded until it was closed out by the following letter.

“Jefferson City, Mo., Feb. 28,1909.
“Friend Booth:
“Tours of the 27th inst. containing notice of the sale bf the old Parker property under the Aylor deed of trust came duly to hand this morning. Thanks. I appreciate the fact, as you say, that Parker is hopelessly bankrupt unless some one comes to his assistance at once, but because of that fact I do not feel that I should offer myself as that one. And as to the request of you and Parker that I come to Webb and make arrangements to buy in the property at trustee’s sale for him or buy it in my name with right in Parker to redeem whenever he gets able, that is out of the question. While I do not want to discourage your effort in behalf of your client, I must say that I would not think of considering your proposition for one moment, and further, I do not think that you have considered what would be involved in such an undertaking on my part, else you would not ask me to go into it. To bid in the property under an arrangement or agreement with Parker would mean that I not only would be required to advance on day of trustee’s sale the amount of Aylor’s indebtedness secured by the deed of trust, but that I would become liable (or rather the property bought in and held by me) would become liable for all of Parker’s outstanding’ obligations provided the property so bought in by me could be shown to exceed in value said indebtedness (which would probably be true if the property was given its full value at said estimate), and besides I am also inclined to think that such an understanding on my part would place me in the attitude of surrendering the benefits of my previous purchase at execution sale of Parker’s equity of redemption in the property. No such chances as that for me, if you please, and whenever I decide to go into a work of charity of that magnitude it will be in favor of one who shows better prospects of being able to redeem himself, and who has worked harder to avert his misfortunes, than has Parker for the past five or six years.
“I think now that I will be in Webb on Friday and Saturday of this week and will meet on either day you or Mr. Parker, or both of you, if you so wish, but if the only purpose of the proposed meeting is to try to get me into some kind of an agreement for buying in the property at the trustee’s sale with right in Parker to redeem, or of having some interest therein with me, or anything of that kind, the meeting might as well not occur.”

(There is something more in this letter, but it is about an entirely different matter.)

The property at the time of the execution sale was encumbered with mortgages, judgments and taxes, general and special, amounting, with interest, in round numbers, to forty thousand dollars. While the evidence as to its value was indefinite and uncertain, it was worth largely in excess of that amount. The most valuable tract, known as the Parker saloon property, in lots forty-five and forty-six in Webb City was shown to have been worth as much as fifty thousand dollars.

Further reference to facts in evidence will be made in the opinion if necessary.

OPINION.

I. The plaintiff has lightened our labor to some extent by filing, with leave of the court, and to secure conformity to the evidence which was all in at the time, the amended petition now before us. We may safely assume, therefore, that its statements are his final analysis of the legal effect of the evidence which was already before the court and from which all elements of variance have been eliminated.

The petition states, in substance, that judgments had been rendered against the plaintiff in Jasper county upon which executions had been issued and placed in the hands of the sheriff, who had advertised his land for sale under them; that the whole amount represented by these executions was less than two thousand dollars, that the two-acre tract included in the levy was free from all incumbrances except said judgments, and was worth three thousand dollars; that when the plaintiff’s property was advertised he appealed to the defendant to bid it in for him at the execution sales, and agreed to pay him therefor in addition to the amount expended, and interest, a reasonable sum for his services; and “that defendant gave him to understand that he would so bid in said property under the terms above set forth.”

This was certainly an indefinite agreement with respect both to its terms and the property it included. The defendant gave Mm to understand — whether with words or a nod or wink is not stated — that he would bid in said property. Even the description of the property to which the understanding applied is not given, and it is a most natural inference that the reference is to the two-acre tract that had just been described as much more than sufficient to pay all the executions in the hands of the sheriff. This inference assumes the proportions of a certainty as the pleader proceeds to state that the plaintiff had already arranged with one Grant Ashcraft, a person of large means, to bid three thousand- dollars for that same two-acre tract. The honest reason that called for the sale of the remainder of the land with its forty thousand dollars of incumbrances, is not elaborated in the petition. Mr. Parker’s object is suggested by the remark he says he made “for its effect on outside bidders” when the two-acre tract was struck off to Mr. Robinson: “You fellows are robbing me in buying in my property at these prices.” It is evident that he would have the court understand that he’ was not there to make the property yield anything for his creditors, and that Mr. Robinson was there to help him prevent its appropriation to so undesirable a purpose. This is a view of the matter which does not appeal to a court of equity. [Sell v. West, 125 Mo. 621.] It will not assist one to save his property from appropriation to the just claims of his creditors. Leaving this phase of the case, however, for consideration in connection with its bearing upon the general effect of the evidence, we will examine the points urged by appellant as grounds for asking the reversal of the judgment.

II. The appellant insists that the court declare that the defendant hold the property involved in trust for the plaintiff, and that it ascertain the amount of moneys expended by the defendant with the interest thereon, and fix the defendant’s compensation for his services. He makes no offer to pay the amount so ascertained, or any part thereof; but asks the court to fix a time in which it shall be paid, and that when it is paid that the defendant he divested of the title. Waiving for that purpose any question as to the necessity of an offer to redeem as a prerequisite to any relief asked for in the petition, we come directly to the question whether, under its allegations and the evidence adduced, the plaintiff is entitled to any relief whatever.

No law is more familiar than that provision of our Statute of Uses and Trusts which declares that “All declarations or creations of trust or confidence of any lands, tenements or hereditaments shall be manifested and proved by some writing signed by the party who is, or shall be, by law, enabled to declare such trusts.” [R. S. 1909, sec. 2868.] The effect of this declaration is that a trust in lands cannot be created by oral contract between the parties, for this would be directly in the teeth of the statute; but there are certain trusts called by the generic name of “implied trusts,” because they proceed by implication of law out of the particular circumstances of the case, and not from agreement of the parties.

The fact that there is no suc^ agTeement is often the very foundation upon which the relation rests. gome courts have been disposed to divide these trusts into categories, with distinctive names, as “resulting trusts” and “constructive trusts,” but have so confused the lines which divide them from each other as to have materially impaired their usefulness for the purpose of legal exposition. Generally speaking, however., a resulting' trust is one which the law implies to meet the requirement of justice that a legal status be given to what is the clear intention of the parties; while constructive trusts rest upon the sound public policy which requires that the laws themselves should not become the instruments of designing persons to be used for the purpose of fraud and oppression. Dishonesty and deceit are not necessary ingredients of the former, -while fraud, either actual or constructive, is the very foundation of the latter, which are accordingly called, by those who delight in garnering expressions from the ripened fields of the classical languages, “trusts ex maleficio.” [1 Beach, Mod. Eq. Jur., sec. 226; Brison v. Brison, 75 Cal. 525; Aller v. Crouter, 64 N. J. Eq. 381, 389.] This is the clqss into which the trust asserted in this case would naturally fall. With respect to it the statute (Id. sec. 2869) provides that‘ such trust or confidence shall be of like force as the same would have been if the act had not been made.” Is such a trust established by the pleadings and evidence in this case?

III. As we have already seen, these trusts do not rest in contract but in fraud, so that should we admit that the statement of the petition, that the defendant gave plaintiff to understand that he would bid in the property for him at the execution sales to be held in October, 1908, on the terms stated, was sufficient, if true, to charge an agreement to that effect, the plaintiff would have taken only the first feeble step in the case he is trying to make, and the provision we have quoted from the Statute of Uses as well as the similar provision of the Statute of Frauds (Id., sec. 2783), would absolutely bar his further progress. “Equity does not pretend to enforce verbal agreements in the face of the Statute of Frauds, and the person holding the legal title to real estate will not be decreed to be a constructive trustee, unless there is something more in the transaction than the mere violation of a parol agreement. Accordingly, the mere refusal of a trustee to execute an express trust, or the denial of the existence of the trust by him, does not make a case for raising a constructive trust. And where a conveyance in trust is made voluntarily, without solicitation or undue influence, and no fraud is shown prior to, or contemporaneous with, the execution of the deed, but consists in denying and repudiating the agreement to reconvey, it will not remove the case from the operation of the Statute of Frauds.” [1 Beach on Modern Equity Jurisprudence, sec. 234.]

The same doctrine was condensed in a few words by Judge Napton for this court in Hammond v. Cadwallader, 29 Mo. 166, 169, as follows: “Where transactions have been tainted with bad faith, there is a resulting trust by operation of law; but the simple violation of a parol contract does not constitute such a breach of faith; for if such was the law, the Statute of Frauds would be virtually repealed. It is not sufficient to call the transaction a fraud or a trust; there must be some artifice or trick employed to make it so, and a confidence reposed by one party in another on the faith of which something has been lost on one side and gained on the other. . . . Nothing is better settled than that, where a trust of this kind is sought to be enforced, fraud must be distinctly alleged and clearly proved.”

IV. It being incumbent on plaintiff not only to prove but to plead fraud on the part of defendant in connection with the purchase of the lands in order to charge him as trustee with respect to the title he obtained at the sale, he attempts to carry that burden upon the theory that the alleged agreement to purchase them for plaintiff’s benefit was made and used for the purpose of suppressing bidding and thereby obtaining the land for less than it would have otherwise brought. For this purpose he pleaded in his petition that he had arranged with one Grant Ashcraft to bid three thousand dollars on the two-acre tract, but after he had been given to understand by defendant that he would bid in said property, plaintiff notified Ashcraft of the arrangement, and not to bid. That Ashcraft did not bid on that tract, and defendant was thereby enabled to and did bid it in for five hundred dollars. That Ashcraft was ready to pay fifteen thousand dollars on the three hundred and twenty acre tract in sections twelve and thirteen, but that defendant bid it in for five hundred dollars, and bid the remaining land described in the petition and included in the sale for eighteen hundred dollars, or two thousand eight hundred dollars in all. The foregoing are substantially the pleaded facts out of which must be selected those which constitute the fraud or trick by which the plaintiff was cheated out of his land under the pretense that the defendant was simply taking the legal title to enable him to save it from sacrifice. It remains to examine the evidence to determine how well the plaintiff has maintained his position.

Y. It was said by this court in Pitts v. Weakley, 155 Mo. 133, that “in case of an express trust in real estate, the burden of the chancellor is relieved, and at the same time his power curtailed by the provisions of the Statute of Frauds which requires that it be ‘manifested and proved by some writing signed by the party.’ ” Such charges upon lands are not permitted to lie in the memory of individuals or to depend upon the truthfulness or honesty of those who claim to he their repository, nor the accuracy of human memory or human statement. The law wisely requires that they shall be preserved in writing, so that their inspection may settle all differences as to their existence and terms. But experience has shown that even the wisest law that human intelligence and foresight can construct, may be made by the designing and wicked the instrument of fraud and wrong; and to place it within the power of a court of equity to guard against this it is provided that whenever such trust or confidence shall arise by implication of law, the statute requiring it to be. in writing shall not apply. The danger so carefully guarded against in case of express trusts is, as a matter of necessity, boldly encountered in the case of these implied ones, and oral testimony, as dangerous in one case as in the other, but the least of the two evils in the latter, admitted to establish them. This is done with great caution. Although the proof may not be made by something which the eye can see and the hand touch, and in which timé with its mutations can work no shadow of change, yet the next best thing may be required in evidence so convincing that no reasonable doubt is left in the mind of the chancellor as to its truth or meaning. The character of this evidence has been described by this court in many ways differing in form, but not in meaning. It is said that it'“must be clear, cogent and fully satisfying the chancellor” (Hillman v. Allen, 145 Mo. 638, 644); that “the insecurity of titles and the temptation to perjury, among the chief reasons demanding that contracts affecting lands should he made in writing, also imperatively require that trusts arising by operation of law should not be declared upon any doubtful evidence, or upon a mere preponderance of evidence. There should be no room for a reasonable doubt as to the facts relied upon.” [Johnson v. Quarles, 46 Mo. 423, 426.] To warrant a decree the evidence should be “of a character so clear, definite and positive, as to leave no room or reasonable ground for hesitancy in the mind of the chancellor.” [Forrester v. Scoville, 51 Mo. 268, 269.] “Such evidence must be well-nigh conclusive in its character.” [Shaw v. Shaw, 86 Mo. 594.] And we have spoken to the same effect in many other cases. The language quoted by Judge Sherwood in Ringo v. Richardson, 53 Mo. 385, 394, from Baker v. Vining, 30 Me. 126, is particularly striking, and is as follows: “And so cautious have courts been in the reception of such evidence [meaning oral], although the proofs have been allowed to be read, yet if there was any secret in the cause not understood, the relief sought has been denied.” The learned Judge further said: ‘‘Other authorities hold, that the evidence in support of the alleged trust is a dangerous species of evidence, and therefore to avail anything must be clear, strong and unequivocal and leave no room for a reasonable doubt in the mind of the chancellor as to the existence of such a trust. ’ ’

We have spoken thus far of the quantity and probative force of the evidence required' to establish a constructive trust, but it remains to apply the same principles to the establishment of the particular trust alleged in this case. A voluntary or express trust is void unless manifested and proved by-some writing signed by the party who creates it. The court must be able to determine from' this writing the existence, terms and limits of the trust. When it is attempted to prove a constructive trust by oral evidence the same facts must be shown — the use of words sufficient to create it, and to define its terms and limits. Although the nature of the evidence is different in one case from that in the other, the facts to be proved are alike in both. [Pitts v. Weakley, supra, and cases cited.]

Applying these rules to the evidence, does it prove the creation of a trust, or the terms of the trust charged or attempted to be charged? The rules require that the parties should disclose all the facts necessary to enable the court to understand the transaction, and if there remains any secret the relief is denied. There is a secret at the threshold of the transaction which we confess our inability to understand. . Mr. Parker claims to have had an arrangement with Mr. Ashcraft by which the latter agreed to bid three thousand dollars for .the two-acre tract, which would have paid the executions then in the hands of the sheriff and left a surplus of more than one thousand dollars, yet he made his arrangement with defendant, if he is to be believed, and told Mr. Ashcraft that there was no use for him to bid on the property. The latter remained at the sale, however, and was, according to his own statement and the allegations of the petition, ready to pay fifteen thousand dollars or better for the three hundred and twenty acres in sections twelve and thirteen, and from twenty-five hundred to three thousand for the two acres, had he not been called off by Mr. Parker. If- these. statements are true, and Mr. Parker committed himself to them in his petition, founding his claim for relief upon them, then he did not desire to sell the two-acre tract for enough to pay off the executions out against him; he did not desire to sell the remaining land for the best price as a means of reducing his indebtedness; but he did desire that all the property should pass through the execution sale, and come out clean of any liability for his debts other than those already charged against it as liens. "Whatever of suspicion we have that Mr. Parker was trying to manipulate this sheriff’s sale for the purpose of heading off his judgment and other creditors is strengthened by his own statement that after he claims to have made this arrangement with the defendant, he had some lots which he owned in Webb City through an unrecorded deed, conveyed directly to Mr. Ashcraft by his grantor, and together they destroyed the original deed to Mr. Parker. The latter stated that he would have to go to the record to ascertain how many judgments were standing against him at that time. He explains the adoption of this method -of transferring the title by saying: ‘ ‘ That was a transaction between myself and Mr. Ash-craft.” Mr. Ashcraft made the following explanation of his own connection with the same transaction: “Q-. You knew the title to that land was in Parker, and Parker had a warranty deed? A. Yes. Q. And you got that warranty deed and destroyed it? A. Yes. . . . Q. You knew there were judgments against him when you did that? A. Yes. Q. You knew if the deed to Parker went on record, those judgments would be a lien on that property? A. I did.” It is due to this witness, as well as to Mr. Parker, that we should state that he said positively that this deed was not destroyed “for the purpose of cutting out judgments against Parker,” but his failure to suggest another explanation forces us to the conclusion that he was working with Parker to hinder his creditors from the collection of their claims. Equity, as we have already intimated, will afford plaintiff no assistance to enforce any arrangement he may have made with defendant having this purpose in view.

VI. There was little evidence tending to show that the bidding at the execution sale was affected by any alleged arrangement or understanding between Parker and defendant, or that anybody took Mr. Parker into consideration in the matter. Mr. Sharp, who represented the plaintiff in the execution under which the land was sold, was a witness for plaintiff, and testified that before the sale he had tried to get the' defendant to stand in with him to buy the property and that he agreed to do so but did not. The witness was an independent bidder on each piece of the property.

Mr. Ashcraft says he went to the sale to bid on the two-acre tract at the request of Mr. Parker, who testifies that when he got there0 and examined the abstract, which showed two unsatisfied mortgages, he got scared, which the witness supposed was one reason why he refused to buy it. The defendant was called into the talk about these mortgages, and advised that if they had been paid, as, Mr. Parker insisted, they were no longer an incumbrance on the land, but Mr. Ashcraft was not willing to run tire risk.

The evidence of an agreement on the part of the defendant, and its terms, consists of the statement of Mr. Parker, the nature of which is strikingly indicated by the terms in which it is pleaded in the petition — “that the defendant gave Mm to understand.” The remainder of the evidence directed to this point consists of statements said to have been made by the defendant, the character of which is illustrated by the testimony of Mr. Aylor for the plaintiff, wMch is, perhaps, the most direct and definite of all. We make the following extracts from his account of the conversation on which plaintiff relies, held at witness’s house after the advertisement and before the sale under Ms deed of trust, which occurred March 8', 1909. He said: “He never said he was going to buy it in for Parker, but he said all over what was coming to him would go to Parker. All he wanted out of it was what was coming to him and expenses. . . . Q. You did propose to Robinson during this conversation that you and him stand in together and buy in tMs property? A. Well— Q. Did you or did you not? A. Yes, I said that.”

The defendant freely says that after the execution sale he told Parker, in answer to his statement that be had been robbed, that he would give him a chance to redeem. We take for granted that, whenever it was called for he made this statement as freely to others as to Mr. Parker, but the fact so stated would have no tendency to prove those circumstances of fraud necessary to establish the trust asserted by the plaintiff, which is founded upon an agreement before the sale, and used to suppress bidding and bring about the sacrifice of the property. This class of evidence at its best is not of that clear and convincing character called for in such cases. This court in Pitts v. Weakley, already cited, said of it: “Even in ordinary lawsuits that is not a Mgh grade of evidence. Every text writer on the subject treats it rather with toleration than favor. Q-reenleaf says: ‘With respect to all verbal admissions, it may be observed that they ought to be received with great caution. The evidence, consisting as it does of the mere repetition of oral statements, is subject to much imperfection and mistake.’ [Greenl. on Evid. (15- Ed.), see. 200.] ” These cautionary statements are peculiarly applicable to the testimony in this case, replete as it is with inconsistent statements, evidences of extreme reticence of witnesses in the treatment of some questions, united with, great willingness to impart information with respect to others, and the subtle suggestion of a doubt pervading the testimony of some whether they were actuated by an unselfish desire to vindicate outraged virtue rather than by chagrin at not having been bidden to the.killing. The trial judge, who saw as well as heard these things, had a much better opportunity to judge of them than we have, and his conclusion does not lack support in the record.

VII. In view of what we have already said, the charges contained in the petition with reference to the foreclosure of the Aylor deed of trust are unimportant. It is founded entirely upon the assumption that at the time of that .sale the defendant stood in a fiduciary relation to Mr. Parker, growing out of the purchase at the execution sale in October, 1908-, to which we have already referred.

The judgment of the Jasper Circuit Court is affirmed.

Blair, G., concurs.

PER CURIAM. —

This case coming into Banc because two of the divisional judges did not sit, the opinion of Brown, C., is adopted as the opinion of the court.

Lamm,.G. J., Graves, Broivn and Walker, JJ., concur. Faris, J., concurs in the result. Woodson and Bond, JJ., not sitting.


source: Caselaw Access Project

author: WALKER, J. —

license: Public Domain

text:
    GEORGE W. BARNETT, Administrator of Estate of SARAH KEMP, Appellant, v. GEORGE W. KEMP.
    Division Two,
    May 26, 1914.
    1. ESTOPPEL: When Available. Estoppels are not favored, and are to be resorted to solely as a means to prevent injustice, “always as a shield, never as a sword.” Where one’s assertions or acts have operated to the injury of another, or where they were designed to or did influence another to his injury, he will be estopped to deny them. But the principle of equitable estoppel is that words or conduct to constitute estoppel must be wilfully spoken or done, or with the intention of deceiving the other party.
    2. -: -: Admission of Indebtedness: Estopped to Deny: Bringing of Suit. A defendant is not estopped to deny his indebtedness and liability by admissions made prior to suit brought that he was indebted to plaintiff, when told that he must make a settlement of his dealings with his deceased mother, nor does such admission estop him from testifying when sued for a settlement and denying he is so indebted, nor does the bringing of a suit so change the position of the parties as to estop him from asserting his rights. Such admission is simply an admission, available for the purpose of testing his credibility as a witness, but not pertinent to estoppel.
    3. ACCOUNTING: When Compellable. To compel an accounting a relationship must be shown to have existed between the parties from which a liability for money from one to the other-necessarily arose. The basis of the action is the relation of principal and agent — in some one of the varied forms of business activity under which one acts for and on behalf of another in pursuance to such authority from such other.
    4: -: -: Mother and Son. Where the son did not rent the farm or town property of his aged mother, or collect the rents, or repair the fences or houses, or sell the crops, except under her direction and with her approval, and kept no books, and, although she lived with him in his home as a member of his family for more than twenty years and he looked after the farm and her houses mud the selling of the crops for her, she was mentally alert and disposed to direct her own affairs, and there is nothing to indicate that she ever considered him indebted to her or complained of his conduct or expected him to account to her in any way, he cannot be compelled by her administrator, after her death, to account for her moneys, if any, that came into his hands. She had a right to give him her entire income and more if she chose in exchange for a home and the companionship of his family, and unless there is some showing that she considered him indebted to her he cannot be held to be liable to her administrator, there being no allegation of fraud, unfair dealing or undue influence.
    Appeal from Pettis Circuit Court. — lion. Louis Hoffman, Judge.
    Affirmed.

      George Barnett, Jr., Sangree & Bohling and Barclay, Fauntleroy, Cullen & Orthwein for appellant.
    (1) In an action for an accounting, the principal has the burden of showing the amount received and not accounted for, but it is not necessary for the principal to prove that the agent has not accounted for money he is shown to have received. The burden is upon the agent to show that he has accounted. Young v. Powell, 87 Mo. 128; Carter v. Primm, 52 Mo. App. 102; Bunker v. Hibler, 49’ Mo. App. 542; Anderson v. Bank, 4 N. D. 182; Marvin v. Brooks, 94 N. Y. 71; Bank v. Rawls, 7 Ga. 191, 50’ Am. Dec. 394. (2) An agent who fails to keep an account raises thereby a suspicion of infidelity or neglect, creates a presumption against himself, and brings upon himself the burden of accounting to the utmost for all that has come into Ms hands; and in such a case every doubt will be resolved against the agent, and in favor of the principal. Linen Co. v. Hough, 91 111. 63; Peterson v. Poigard, 8 B. Mon. 309; Traction Co. v. Anson, 41 Ore. 562; Landis v. Scott, 32 Pa. St. 495; Stainton v. Carrón Co., 24 Beav. 346, 3 Jur. N. S. 1235', 27 L. J. Ch. 89, 53 Eng. Reprint 391. (3) Where a party, before suit, gives a reason for his conduct and decision touching anything in controversy, he cannot, after litigation begun, and costs made, change his ground and put his conduct upon another and different consideration. He is not permitted to thus mend his hold. He is estopped from doing it by a settled principle of law. Eailway Co. v. McCarthy, 96 U. S. 258; Danville v. Insurance Co., 71 N. W. (Mich.) 517; Insurance Co. v. Waugh, 83 N. W. (Neb.) 81; Ballon v. Sherwood, 49 N. W. 796, 797.

      Montgomery & Montgomery and Charles E. Yeater for respondent.
    (1) Plaintiff is not entitled to plead estoppel against the defendant on the ground that he brought the suit on the faith of his admissions of indebtedness, because thereby no change was effected in the rights or remedy of plaintiff, which remained precisely the same as before suit, and costs of suit are not a sufficient basis for estoppel; (2) and a party can not claim estoppel because of representations which induce him to do some act he is already legally bound to do; (3) moreover, the representation of indebtedness made by defendant was made on the confidence that defendant had in plaintiff as his attorney and intimate friend of many years’ standing, and the probate judge, both of whom told him he owed his mother’s estate and must account for the rentals; (4) and such representation was merely a legal conclusion or a mixed conclusion of law and fact now at bar in this case. Lumber Co. v. Lumber Co., 117 La. 1; Hughes v. Life Ins. Co., 32 Wash. 1; Jamison v. Auxier, 124 N. W. (Ia.)606; Eikenberry v. Edwards, 67 Iowa, 67; P'rei v. McMurdo, 101 Wis. 423; Glove Co. v. Jennings, 58 Conn. 74; Bank v. Falkner, 31 N. J. L. 52; Lewis v. Prenatt, 24 Ind. 98; Warder v. Baker, 54 Wis. 49; Land Assn. v. Banks, 80 Minn. 317; McMaster v. Ins. Co., 55 N. Y. 222; State ex rel. v. Lumber Co., 77 Mo. App. 545; 16 Cyc. 751, 765'. (2) Mrs. Kemp and defendant were never in the relation of principal and agent, or beneficiary and trustee, but there was simply the relation of mother and son, living together in the same family and using common funds, the son assisting his aged mother as best he could, but subject to her control and domination, and keeping no books ydth her consent, but reporting all transactions to her at the time, which relation continued to the satisfaction of both parties until the mother’s death; consequently the defendant accounted to his mother in her life time and plaintiff is not entitled to an accounting from him. . Carrau v. Chapotel, 47 La. Ann. 408; Evans v. Evans, 42 Tenn. (2 Cold.) 143; Title & Trust Co. v. Weitzel, 152 Pa. St. 498; McCarty v. McCarty’s Admr., 11 Ky. L. R. 366; Donavan v. Griffith, 215' Mo. 149. (3) While it is a general rule that it is the duty of an agent to keep true and regular accounts, and render statements thereof when required by the principal, such general rule has no application to a case in which all matters of account were fully explained at the time as the business proceeded, and where by the consent of the principal no books are kept. Carrau v. Chapotel, 47 La. .Ann. 408; Rich v. Austin, 40 Vt. 416; Macauley v. Elrod, 16 Ky. L. R. 549; Hamilton v. Hamilton, 44 N. Y. Supp. 97; Robbins v. Robbins, 3 Atl. (N. J.) 264-Smith, Admr., v. Perry, 197 Mo. 460.
   WALKER, J. —

This is a suit in equity for an accounting brought in the circuit court of Pettis county by the administrator of the estate of Sarah Kemp, deceased, against George W. Kemp, her son. On a hearing a judgment was rendered in favor of the defendant, from which the plaintiff appeals.

Plaintiff in his petition, after the formal allegations as to his appointment, qualification, taking charge of the estate of Sarah Kemp, and £bat be is now acting as administrator of same, alleges that prior to the year 1887 one James Kemp died in Pettis county, leaving a large amount of property; that at the time of the final settlement of said estate defendant was administrator of same, and in said year as such administrator made a final settlement of said estate, and in same there was found to be due Sarah Kemp, the widow and sole legatee of deceased, the sum of $6667.42; that at the time said Sarah Kemp was infirm from age, and remained so until her death, which occurred in the early part of 1908; that during this time she lived with her son, the defendant, as a member of his family, and constituted him her agent to conduct and manage all of her business; that by reason of the confidence reposed by her in the defendant, a fiduciary relation was created between them, and that defendant managed and controlled her property, received the proceeds thereof, and paid out whatever was necessary for her support, and made the expenditures necessary in the conduct of her business.

That upon the final settlement of said estate by defendant as such administrator, there was turned over to him as agent for his mother, the sum of $6667.42, to be held and managed by him for her use and benefit.

That Sarah Kemp owned a large farm of six hundred and twenty-nine acres in Pettis county, and that defendant as her agent controlled same, and received the rents therefor; that the rental value of same was about $900 per year, and that defendant received an average of this sum per year for a period of twenty years consecutively, beginning with the year 1887 and ending with the year 1907, making a total of $18,000 thus received by defendant.

That for a period of sixteen years prior to her death Sarah Kemp owned, in the town of Lamonte, a' house, livery barn and a lot of ground, of the rental value of $8>per month, or $96 per year, and that defendant has received for her the rents on said property for said period in the total sum of $1536.

That the aggregate sum received by defendant for and on behalf of his mother, during the time he acted as her agent, was $25,203.42, as near as plaintiff can ascertain same.

That said Sarah Kemp was old and required but little for her support and maintenance, the necessary amount of which plaintiff has not been able to ascertain, a matter peculiarly within the knowledge of the defendant.

That plaintiff has demanded of defendant a statement of his accounts showing the total amount of money received by him for his said mother and the amounts paid out on her account, and the items thereof, but that the defendant has failed and refused to render said account to plaintiff or to pay anything on account thereof. Wherefore the plaintiff prays for an accounting between plaintiff and defendant, and for judgment, etc.

Defendant for his answer admits the death of James Kemp, prior to 1887; that he left a will, and. a large amount of property; that at the time of the final settlement of the estate this defendant was the administrator and made such settlement, but denies that there was then found to be due Sarah Kemp the sum of $6667.42, or any other sum, and denies that on said settlement said sum was paid over to him. He admits that his mother was old in 1887, she having been born in 1813, but denies that she was feeble or remained so until her death in 1908, but on the contrary that she was a woman of strength and activity, in full possession of her mental faculties until her last illness. That his mother lived with him, as a member of his family, from 1892 until her death, but denies that she constituted him her agent to conduct and manage her business, Or gave him sole control thereof. But he admits that she reposed entire confidence in him and that their relations were confidential; but he denies that any agency, trusteeship or other fiduciary relation other than that arising from their kinship as mother and son, and the affection and confidence they had for each other, existed between them; that he did manage and control her property and received the proceeds thereof, and paid the necessary expenses thereon, and that the true facts of the relations between defendant and his mother are as follows:

That in 1882 said James Kemp, the husband of Sarah Kemp, died, and she was left alone on the farm, and the defendant as her son from a sense of duty and affection undertook the management of her affairs ; that she had only one other child, a Mrs. Hendrix, whose husband was then living, and that Mrs. Hendrix would not or could not live with her mother, and that the defendant felt in duty bound to assist his mother in .running the farm and managing her property; that she remained on the farm until 1889 or 1890; that defendant then sold his own farm and moved into the town of Lamonte, and finding it inconvenient to go to her home as often as he was required to do in his care for her, it was agreed that she would move into town and live with him. That with money furnished him by his mother he managed the farm, paid the taxes, made the repairs and other expenses, with the income derived therefrom, and that he did this purely as a gratuitous agent under the direction and supervision of his mother. That although she was old and occasionally ill, she retained her mental faculties unimpaired, and was at all times competent to manage and direct her business affairs. That whatever defendant did in the renting of the farm or in the use, investment or expenditure of money belonging to his mother was done with her knowledge and under her direction. That no books of account were ever kept between them, and all matters were settled-at the time they occurred. That all moneys handled, received or expended were in accordance with his mother’s assent and wishes, with no expectation or intention of holding the defendant liable to her or anyone else therefor.

That they lived as mother and son, and as one family, from the time she began to live with him, until her death. That he received and used her money as common property for common use, under her direction, and as she deemed proper, and that no cause of action exists in plaintiff to recover same or any part thereof. Defendant admits the ownership of a farm by his mother, but avers that there was only about three hundred and twenty acres of tillable land thereon, the greater part of the tract being timber, unfenced and not cultivated, and from which no income was derived. He denies that the rental value of said land was $900, or that he or his mother received an average of $900 a year therefor. He admits that she owned a dwelling house and livery barn in the town of Lamonte, and avers that he bought it under her direction with the sum of' $1600 she gave him; that through error the title was taken in his name, but he has disclaimed title thereto adverse to his mother; that he denies the rental value of said property was $1536, or that he or his mother ever received any such sum therefor.

He denies that during the years alleged by plaintiff, he received as agent or otherwise, for his mother, cash and rents amounting to $25^,203.42, and that whatever amount of money he received was in the manner and under the circumstances and agreements heretofore stated; he admits that his mother was old but denies that she required little for her support; that he paid out for necessary expenses and repairs on her property the sum of $150 a year, during the period aforesaid, and paid taxes thereon during the same period, averaging $125 a year; that he built a barn and made other improvements under his mother’s direction, in addition to the repairs mentioned, at a cost of $300. That the care, support and maintenance of his mother during the period of time referred to by plaintiff was $600 a year, and that he paid for medical attention and medicine during said period a large amount which he is not able at .this time to definitely state. That if required to account for said rents and moneys alleged by plaintiff to have been received by defendant, he is entitled to have credits for all of said expenditures, and he prays the court to protect him in this behalf and for other proper relief.

Plaintiff for his reply denies specifically each of the allegations made in defendant’s answer, and avers that defendant applied for letters of administration on his mother’s estate, and that the probate court refused to appoint him on the ground that he was indebted to said estate, but appointed the plaintiff instead with a view of collecting from defendant the rents due the estate so collected by him; that plaintiff has called upon defendant for a statement of rents and other matters of his indebtedness to the estate of Sarah Kemp, and that defendant admitted he had been collecting rents for a great many years, and that he was indebted to the estate for rent so collected, but stated that he had kept no books of account, and did not know the amount of his indebtedness, but knew that it was a large sum, and that he had no money with which to pay it, and no means of paying it, and did not know how he could ascertain the amount of the indebtedness; that plaintiff asked defendant to prepare a statement of account, and that defendant agreed to do so with a view to attempting to arrive at the real amount due; that defendant deferred making such statement from time to time, and never did furnish same; that in none of the conversations had by the plaintiff with the defendant did the latter deny his liability to the estate or that he had acted as his mother’s agent in collecting rent, but admitted at all times, that he was the agent of his mother in the collection of rents, and that he owed her estate for same; that defendant did not claim at any time that he had used the money belonging to his mother, with her knowledge or acquiescence, and did not claim that the accounts between them were settled at the time they occurred, and that he had only used the money in accordance with her wishes, and made no claim that he had collected her money and used it without any expectation on her part of its being repaid, and that at uo time did he claim that there was an understanding between them that the money should be used as their common property without his accounting for same, or that the same was expended and consumed as the said Sarah Kemp saw proper, with her full knowledge and consent; that plaintiff had no information of any such contentions until served with a copy of defendant’s answer.

That in bringing this suit plaintiff relied upon the statements of the defendant that he had collected the rents for a long period of years, and that he owed his mother’s estate for same, less the reasonable expenses incurred in keeping said farm in repair, in paying the taxes and for the support of his mother, and that no defense was claimed by defendant prior to this suit other than said deductions from money collected by him for purposes aforesaid, and in bringing this suit plaintiff relied upon the statements of defendant that he owed his mother for rents collected as aforesaid.

Plaintiff says he brought this suit because of defendant’s delay in furnishing him with a statement of his account and of defendant’s inability to arrive at the amount due otherwise than by suit; that defendant is estopped and precluded from now making the defense that he is not liable for this rent, and from pleading the defense set forth in his answer, and it would be inequitable and unjust to permit him now to assert same.

Sarah Kemp, the administrator of whose estate instituted this action, inherited at the age of seventy-five years, as relict and sole legatee of her third husband, James Kemp, a tract of land and other- property near Lamonte in Pettis county.

By her first marriage, Mrs. Kemp had one child, a daughter, referred to herein as Mrs. Hendrix; by her 'second marriage she had a son, George W. Kemp, the defendant; by her third marriage to James Kemp, of the same family name as her second husband, she left no bodily heirs surviving her. This will suffice to render intelligible necessary subsequent references to these parties.

Sarah Kemp died at the age of ninety-five years, at “the residence of George W. Kemp, the defendant, at the town of Lamonte, in April, 1908. A few days thereafter the son went to Sedalia, the county seat, for the purpose of administering on his mother’s estate. Preparatory thereto he consulted a lawyer, Mr. Geo. W. Barnett, who had represented him- as counsel in litigated cases, and had been his legal adviser in other business matters for many years. They went to the office of the probate judge, who informed them that objections had been made to the appointment of defendant as administrator, and no further steps were taken at this time. A short time thereafter Mr. John D. Bohling, a lawyer of Sedalia, representing Mrs. Hendrix, the sister of the defendant, called at the office of Mr. Barnett and informed him that as counsel for Mrs. Hendrix he would object to the appointment of defendant as administrator because the latter was indebted to the estate on various accounts. When, therefore, defendant next came to Sedalia, Mr. Barnett again accompanied him to the probate judge’s office for the purpose of commencing the administration. Mr. Bohling appeared as attorney for Mrs. Hendrix and objected to defendant’s appointment on the ground before stated by him. The court thereupon announced that defendant would not be appointed, but that he would appoint Mr.. Barnett as such administrator. The latter accepted and at once qualified.

It is not inappropriate in an equitable proceeding where all the facts are reviewed by the appellate court, that testimony explanatory of the circumstances under which the suit was brought should be somewhat minutely stated. This is best done in the language of Mr. Barnett, who, on the witness stand, testified as follows : “It was not stated that I was appointed administrator for the mere purpose of suing Mr. Kemp, but they wanted somebody who could get this rent by an amicable suit, if necessary. I was notified by you gentlemen — I refer to you gentlemen representing the •Hendrix side of the controversy — that I must proceed to collect what Mr. Kemp owed. I at once started to work to try to get it settled at that time. I was not contemplating a suit right away. I asked Mr. Kemp to come over to my office to go over that matter and he did. Mr. Kemp is hard of hearing, and I talked loud to him. I had been his attorney in past years— not in many suits, but he had a suit with Mr. Fleming, and Yeater was on the other side, but I had never been his attorney in these matters here that involved his relations with his mother’s estate, so far as collecting the rent, and if I had ever known there was such a question I had forgotten it and did not know it until you gentlemen called my attention to it. I said to Mr, Kemp, ‘Now, I am not your attorney now; I have not rendered you any services; I went over there to render you some, but the court took an action that severed my relations as attorney, and there is no charge for what I have done, and I want to say now that whatever you say to me is not as your attorney. You will have to hire an attorney, that is, if you want an attorney, you will have to hire one, but I am against you instead of for you.’ ” After this admonition Mr, Barnett proceeded to examine his former client and to elicit from him the information which constitutes the principal evidence for the plaintiff. It is in effect as follows : “I said, ‘Mr. Kemp what do you owe the estate, if you owe it? ’ He said he owed a large amount; more than he would he able to pay unless it came out of the land; that he owed for twenty years’ rent while acting for his-mother;'that he represented her in attending to her business, and as her agent he collected the rents for all those years and he owed for it. I asked him to give me a statement of the rents, and he said he could not, he hadn’t kept any books, and we talked about the complications that arose therefrom, and Mr. Kemp said there would be some taxes he had paid out, that he had paid the taxes; and had done something, I don’t remember what, about keeping the place in repair, and he supposed he ought to be allowed something for his mother living with him. I said, ‘That will have to be determined, but what I am requesting you to do is to make out an itemized account; if you haven’t any books use your memory, but where your memory don’t serve you, take a kind of average of the rental of the place — you know pretty well what you rented it for. Make out an itemized statement of any other money you received and take credit for whatever you think you ought to have for paying taxes and keeping it in repair, render me that statement and I will notify the Hendrixes and possibly we can agree upon a settlement, and have it made some kind of a charge on your part of the real estate. ’ He promised to do that. He said he could not do that by himself and wanted an attorney to help him, and I took him over to the Montgomerys, and introduced him., and I think I stated the substance of what had been said. Afterwards the matter ran on, and I wrote Mr. Kemp several letters, and went to Lamonte, and after some talk about grain in the elevator, corn in the -bins and rent on the barn, I asked him to act for me as my agent and hé did. And when I went np there again, I called his attention to the statement he had agreed to make. The Hendrixes complained I was not moving fast enough. The matter kept going on, and they said there had been enough delay and I brought suit. He didn’t in that conversation intimate that he had collected the rents for the joint use of himself and mother and ought not under the circumstances to account for it, but he said he was liable for the rent and would account for it after finding out what it was and making proper deduction for his trouble. I never heard there was any other theory until a copy of this answer was served on me. Mr. Kemp never made any statement as to how much he received a year from the place, and if I have ever seen the farm I don’t recollect it. ’ ’

On cross-examination Mr. Barnett stated that “he first got acquainted with Mr. Kemp when he was employed by the latter to represent him in a cause which was in litigation for a number of years. From that time on he was intimately acquainted with him; that he had advised him about other matters; that his relations with Mr. Kemp embraced a period of a great many years; that he was, during this time, an intimate friend of Kemp, and continued so; that he had read an account of the death of Sarah Kemp; the mother of the defendant, whom he had met at the latter’s home, and really expected the latter to come down”'— evidently to confer with him concerning an administration of the estate.

George W. Kemp’s testimony as to his statements made to Mr. Barnett are substantially as follows: “After he [Barnett] was appointed administrator he and the judge told me I would have to render an account, make a statement of the rents, of the rents I had collected, the money I had paid out and things of that kind, and I told him I hadn’t kept any books and I didn’t know how I could make it. Mr. Barnett afterwards told me — I don’t recollect whether he told me that day or not — yes, it was that day^ — that he was then not my attorney any more; he had been my attorney, but that he wasn’t my attorney, and I would have to get someone else. He had been my attorney, I had confidence in him and I told him, I said, ‘Mr. Barnett, I am not very well acquainted with lawyers in Sedalia,’. and for him to suggest some good lawyers to confer with. He referred me to Montgomery & Montgomery, and said Mr. Teater would be a good man. I think that is about what he told me and what the judge told me, if I remember everything correctly. He told me it was my duty to make a settlement, that under the circumstances I would have to make a settlement; that Mrs. Hendrix was claiming I was owing them a right smart of money. I supposed I would have to make a settlement because they told me so. I hadn’t considered that I would have to before that because mother had always, said that that had nothing to — ” Here the witness’s testimony was objected to by Mr. Barnett in this language: “We object to him testifying in this cause at all except as to conversations had with others since her death.” The Objection was by the court sustained, and there was no' further examination of the witness.

The testimony of Mrs. Hendrix (sister of defendant) relative to what the latter said as to his administration of the estate of James Kemp and his management of his mother’s business, is appropriate in this connection. Tt is in substance as follows i “I had been down town and I stopped at his store and told him I would like to have a little talk with him. I asked him what became of the money he had on hand when he settled up the estate of James Kemp. He said it was all on record down here. He never told me anything, only what I asked him. He never told me much about it one way or the other. I told him I knew he wasn’t very stout and I wasn’t able to do anything myself, and I thought he was coming down to see about the administrator [of Mrs. Kemp’s estate], and I said, ‘George, I would rather you wouldn’t administer, you have got all you can do to attend to your own business and you are not able to attend to this affair, and I ain’t either, and I would rather get someone else to do that.’ That was after mother died. I had the first conversation with him before mother died, and the next at his store after-wards. We didn’t say very much. I asked him about this money on hand when he settled up the estate of James Kemp and he said it was all on record' down here at the court house, and that is pretty near all that passed. I asked him if mother loaned him that money or did he borrow it, and he said no, that Ma simply turned it over to him to the best of her advantage. That is pretty near all .that was said as near as I recollect. He never told me much about it one way or the other, and I didn’t meddle with it. I thought he would do what was right and in mother’s' lifetime I never wanted to bother her in any way and I never said much about it. I did ask him one time who the place was rented to, and that is about all. He didn’t say anything only told me the names of the parties. He didn’t tell me what he got for the place, or nothing, or how he rented it. ”

The substance of the relevant testimony of James C. Hendrix, son of Mrs. Hendrix and a nephew of the defendant, is to the effect that the defendant admitted to him that he owed the estate a big lot of money and that that was about all the conversation that witness had with the defendant.

The testimony of Mrs. Minnie Andrews, a granddaughter of Mrs. Plendrix, was as follows.: “I was present when the conversation occurred between Mrs. Hendrix and Mr. Kemp. We had been up town and came by the store, and grandma said to Uncle George she wanted to have a talk with him about the estate, that she had never known how things were run and would like to get an insight as to how the business was. attended to; she asked him if he had borrowed this money from grandma and he said no, that grandma had simply turned it over to him to be used to the best of her advantage, and she asked him if all the corn had been sold on the place, and he said yes, and also said by selling the corn at the price it was sold it had beat him out of $20. She said there was only the two children and they could get together and agree on this business without trouble, and he said he thought so, too. She asked him about the money on hand when the estate was settled, and he said there had been a record given of every cent of the money. Then she asked him some questions he didn’t answer, and she asked him about how much property there was in Lamonte, how much property grandma had, and he said she owned a house and lot in Lamonte, but he didn’t tell her about the livery stable until she asked. This was practically the sum and substance of the conversation. He voluntarily said the house and lot belonged to his mother. Then she asked him if grandma didn’t own a livery stable in Lamonte, and he said yes. Nothing was said about the cost of the property. ’ ’

In connection with this testimony the fact is pertinent that the final settlement'of the defendant as administrator of the estate of James Kemp introduced in evidence discloses no indebtedness on the part of the defendant to said estate.

The witnesses whose testimony is above set forth, were all, except the defendant, introduced by the plaintiff. The nature of the business relation sustained by the defendant towards his mother must be deduced from this testimony, as that of other witnesses, except as to fragmentary facts and circumstances, is silent in regard thereto. The general facts are that the stepfather, James, Kemp, whose estate is the core of this controversy, died in 1882, and his wife, Sarah Kemp, remained on the farm and continued to conduct same with the aid of the defendant who resided and was engaged in business in Lamonte. The difficulties attending this manner of conducting her business were such that the mother, after consultation with her son, finally concluded to move to Lamonte and become a member of his family. This she did in about 1890, and for eighteen years thereafter or until her death in 1908, they resided together in that amity which should characterize this kinship. Mrs. Kemp was a woman of strong and clear mind, and of a rather dominating nature. Her son, the defendant, was weak physically and of rather vacillating disposition, and hampered in his social and business intercourse by deafness, and there are many facts,' affirmative and circumstantial, indicating that he was not only guided in the general conduct of his mother’s affairs by her, but that in particular matters, such as the renting of the ground and collection of rents and the sale of the products of the farm, he did nothing without consulting her. Whether in any of these matters he accounted to her or was required to account to her, there is no evidence; but considering their respective natures and dispositions, the conclusion is almost inevitable that whatever he did was under her direction. So far as is shown by the testimony, there is nothing to indicate that there was any change in the nature of this relationship or that her mental alertness and disposition to direct her own affairs was in any way impaired until a short time before her death. It is true that for at least two years before her death her physical condition, due to rheumatism and a rectal paralysis incident probably to old age, rendered her unable to do more than assist as her inclination prompted in the house work; this disability, however, does not appear to have lessened her mental capacity to manage her own business. Aside from the administrator’s, testimony as to the statements made to him by the defendant, and that of Mrs. Hendrix and her son and granddaughter, tliere is not a vestige of testimony to show that Mrs. Kemp ever regarded her son as her agent in a business sense or demanded or expected an accounting from him of the money expended under her direction. It is a reasonable presumption, however, that he accounted to her from time to time as the business was transacted. Of this he was not permitted to .testify. The court’s ruling in excluding his testimony is not open to criticism.

Much of the voluminous record in this case has been taken up- with the testimony of witnesses as to the renting of the farm, the income from such réntal in cash or from crops raised thereon, and the expenditures made by defendant in connection with the property. Under the view we have taken of this case, the introduction and preservation in the record of this testimony was unnecessary; it was probably introduced upon the theory if the trial court required an account! ing of the defendant that the duty devolved on him of showing the manner in which he had conducted his mother’s business.

I. It is contended by the plaintiff that the alleged admissions of the defendant in regard to his indebtedness to the estate are binding, and that ne is estopped from denying same, notwithstanding the circumstances under which the admissions were made. While it is true as a general proposition that where a party gives a reason for his conduct touching a matter in controversy he cannot afterwards change his -base and put Ms conduct upon another and a different ground, or, as Justice Swatnb p-uts it in Railway Co. v. McCarthy, 96 U. S. l. c. 267, “he is not permitted thus to mend his hold.” This language, while general, must be construed in the light of the principles governing equitable estoppels which are that an assertion or act to constitute an estoppel must be wilfully made or done with the intention to deceive the other party. Where it appears, therefore, that one’s assertions or acts have operated to the injury of another, or where one’s expressions and course of conduct were designed to or did influence another to his injury, their denial will be estopped. Further it is held that estoppels are not favored and are to be resorted to solely as a means to prevent injustice, “always as a shield, never as a sword.” [Pierrepont v. Barnard, 5 Barb. (N. Y.) 364; Royce v. Watrous, 73 N. Y. 597; Campbell v. Nichols, 33 N. J. L. 81; Colter v. Calloway, 68 Ind. l. c. 222; 2 Herm. Estop., sec. 787, p. 714.] Our own court, guided by these well established principles, has declared that the facts relied on to establish an équitable estoppel must be such as to have caused the party asserting them to have changed his position in reliance thereon to his injury. [Thompson v. Lindsay, 242 Mo. 53; Withers v. Railroad, 226 Mo. 373; Freeland v. Williamson, 220 Mo. 217.]

The facts in the case at bar do not lend favorable color to the contention of plaintiff that defendant is estopped from denying liability by reason of the alleged admissions made by him to his former counsel. In marked contrast’with the dominant characteristics of his mother, defendant was of a weak and vacillating nature, and was further handicapped by' a defective sense of hearing. When told, therefore,'as he says he was, by his former counsel and confidential adviser, and the probate judge, that he must make a settlement, moved by that confidence which clients often repose in counsel, he no doubt went to the counsel’s office, and, as the latter testifies, frankly answered the questions propounded to him. But in what manner does this constitute an estoppel and close his mouth when testifying at the trial, when he had tíecome aware of his rights and had a full knowledge of the purpose of the inquiry 1 T-Tis former admissions in no manner changed the rights or lessened the remedy of plaintiff; if plaintiff deemed that a cause of action existed, it was his duty, regardless of any statements or admissions made by the defendant, to institute the action. The most • that can be said of the alleged admissions — and this is not pertinent to the question of estoppel — is that they are properly available in determining the witness’s credibility, and we have so considered them.

As to whether or not the bringing of the suit by plaintiff changed his position within the meaning of the law of estoppel, the Supreme Court of Louisiana, in Des Allemands L. Co. v. Morgan City T. Co., 117 La. 1, says: “The bringing of a suit is not a change of position within the meaning of the law of estoppel. The suit cannot create rights, nor change the legal situation. It can only enforce the existing rights, such as they happen to be. A litigant cannot create an estoppel against his adversary by merely filing a suit against him.” And on the same question the Supreme Court of Iowa in Jamison v. Auxier, 145 Iowa, 654, says: “Defendants have done or omitted nothing which caused plaintiff to change his position, or to go to any expense which he would not otherwise have incurred, save-, perhaps, to bring suit on the note. The bringing of suit is not a fact, however, upon which to predicate a plea of estoppel.”

And the Supreme Court of Minnesota, in Western Land Assn. v. Banks, 80 Minn. 317, says: ‘ The doctrine of estoppel has no application in cases where the representations, which are claimed to give rise to it tend only to induce a party to dQ some act he is already legally bound to do.”

In the absence, therefore, of any of the elements necessary to constitute an estoppel, we must hold that it is not properly invoked- in this cause.

II. To sustain an action for an accounting, some such business relation must be shown to have existed between the parties as to create, a liability on the part of the one to the other. More briefly, the basis of the action must be the existence of the relation of principal or agent, in some one of the varied forms of business activity under which one, being authorized, acts for and on behalf of another. In fact, no form of human action save by the actor himself, is possible without the creation, although it may be for the one act alone, of the relation of principal and agent. It was created and existed between defendant and his mother; so well defined was the relation that he did not rent an acre of ground, reset a fence, sell a crib1 of corn, or a stack of hay, except under her direction and with her approval. That he received and paid out money for her in conducting her business, we do not doubt, although there is a paucity of testimony in this regard. In the absence of an express appointment or acceptance, much may, of course, be inferred as to the nature of a business relationship from the words and conduct of the parties and the correlative circumstances connected with the case. We have weighed all of these in an effort to determine whether the relation which existed between these parties was such as to create a liability on the part of the defendant. The fact that the relation of principal and agent may in form have existed in this case, lends no force to plaintiff’s claim unless it be shown that a liability was thereby created on the part of defendant.

The property, real and personal, belonged to the mother; her mental alertness and the'exercise of her authority in regard to it, shown by the testimony, we have adverted to. The mother being dead, the son’s mouth is closed as to the nature of his relations with her, and the evidence in regard thereto, in the absence of other witnesses, must be gleaned from her conduct, so far as it can be shown by all the facts and circumstances in the case. While he acted for her and she kept a watchful eye upon his actions, she required him to keep no books and if be accounted to her it must have been orally after each transaction. If he was required to make settlements, the conclusion is almost inevitable that they were made after the same manner as his reports. No syllable of testimony indicates that she was at any time dissatisfied with this manner of proceeding, and it is almost proof positive that if dissatisfaction existed the ever open ears of the village gossip would have heard it from her at. some time during the twenty years and more that the relation existed. Under this state of facts, in the utter absence of evidence to sustain it, we are asked by the plaintiff to require the defendant to do what was never required of him by his mother, viz.: render an account of his transactions.

Living, Mrs. Sarah Kemp' may have been unbusinesslike in her methods, but her power to do with her own as she chose cannot be questioned. If she chose to give her income or more to her son in exchange for a home and the companionship of those endearel to her by association and ties of blood, a court of conscience, whose decrees should be tempered by sentiment as well as a wholesome sense of right, should not interfere with her choice. Especially is this true where as in this ease there is no allegation of fraud, unfair dealing, or undue influence, and no intimation that she was not, at all times, of sound mind. The plaintiff’s petition is to be commended in this respect as, after the necessary formal allegations, it plants its plea for a decree upon defendant’s mismanagement of the estate. In pur opinion, the facts and circumstances do not justify equitable intervention. Precedents in support of the conclusion reached here in regard to an accounting may be found in the following cases: Donovan v. Griffith, 215 Mo. 149; Smith, Admr., v. Perry, 197 Mo. l. c. 461; Crowley v. Crowley, 167 Mo. App. 414; Carrau v. Chapotel, 47 La. Ann. 408; Evans v. Evans, 42 Tenn. (2 Cold.) 143; Fidelity T. & T. Co. v. Weitzel, 152 Pa. St. 498; McCarty v. McCarty’s Admr., 11 Ky. L. R. 366; Rich v. Austin, 40 Vt. 416; Macauley v. Elrod, 16 Ky. L. R. 549; Hamilton v. Hamilton, 44 N. Y. Supp. 97, 102; Robbins v. Robbins, 3 Atl. (N. J.) 264.

The industry and learning of counsel have prompted them to submit, pro and con, other matters for our consideration than those we have discussed, but as the burden of plaintiff’s plea is for an accounting, and we have denied his right to same, the consideration of other matters is unnecessary.

From the foregoing it follows that the judgment of the trial court should be affirmed, and it is so ordered.

Brown and Faris, JJ-, concur.