196 Mo. 1 | Mo. | 1906
On the 23d of October, 1899, Thomas D. Evans, then childless, died a resident of Cass county, Missouri, full of years and infirmities of mind and body, having shortly theretofore conveyed a considerable estate to his wife. By inference, he was a Welshman — at any rate, he left surviving him a brother,
In November, 1899, D. J. Evans left Wales and came to Cass county to investigate his deceased brother’s affairs. Up to that time he never had seen his nephews, Charles William and Daniel, except once in Paris, and had held no communication with them whatever, and while an extensive correspondence occurred subsequently, yet he never met them but once during its existence. We infer his American trip was the result' of consultation with his sister, Mary Thomas.. On his coming upon the ground, such a situation presented itself as led him to solicit and procure a power of attorney from his said nephews and sister to represent them as heirs at law of Thomas D. Evans in and about obtaining their rights as such. The terms of this power of attorney are not shown, but the matter is dealt with throughout as though it was a full power of attorney and vested him with large discretion. In pursuance of such power, and acting for himself and his principals therein, he'utilized the information already gathered by him tending to show undue influence and mental incapacity, and other knowledge aftérwards obtained, in challeging the validity of the conveyance made by his brother to his wife and thereby, with the assistance of attorneys in Kansas City and Harrisonville, he obtained a settlement with the widow out of court, whereby a tract of land in Texas, several farms in Cass ’ county, and 85 shares of the capital stock of the Harrisonville Hotel Company of Harrisonville, Missouri, were transferred to him, together with $1,000 in cash,
Being an alien, it seems a question was sprung about his right to take and hold title to real estate, and thereupon the title was put in one Davis, and by Davis it was transferred to the Fidelity Trust Company, a Missouri corporation (also a respondent here) in trust.
Mary Thomas had a son, William, residing in Cass county or in Kansas City, and it shortly befell that friction arose between William Thomas and his uncle about the management of the estate, and they began to eye each other with distrust, but the merits of this particular family controversy do not appear material to the present litigation, further than to say that while full details are not in the record, yet it is apparent that William Thomas put himself in communication directly and indirectly, through his attorneys in Kansas City, with Daniel and Charles William Evans and with his mother in Wales, and that it presently resulted that Mary Thomas placed the management of her interests in her son William’s hands or in the hands of attorneys in Kansas City, and D. J. Evans ceased to represent his sister as attorney in fact. The exact date D. J. Evans ceased to act as agent for Mary Thomas does not appear, but it was some time during the year 1900, and possibly during the summer or autumn.
During the time he was clothed with full power as agent, he made disbursements in repairs, taxes, attorneys ’ fees, for abstracts and personal expenses in a. large aggregate sum and incurred other outlays in advertising and in attempting to sell the property recovered by him from the widow of Thomas D. Evans— the policy of all parties getting this windfall being to
• Pending this partition suit, and evidently against his wish, his nephews, acting through their attorneys in New York, employed one of the same attorneys to represent them that Mary Thomas had employed. It seems one of the Kansas City counsel for Mary Thomas had apparently assumed a position somewhat antagonistic to 1). J. Evans and it seems that his employment took on a bit of color from that antagonism. At all events, he required a free hand and unquestioned authority as a militant lawyer in a militant case and exacted and received a written power of attorney to represent Daniel and Charles William Evans, as follows:
“We hereby retain you as our attorney and conn-' sel in the above-entitled case, and authorize you to appear for us and each of us therein to file answer for us and take such steps and proceedings as in your judgment may seem proper to protect our interests in the above case until it is finally disposed of.
“Daniel Evans,
‘ ‘ Charles William Evans. ’ ’
Also pending this litigation, D. J. Evans made a proposal to buy the interest of his nephews for $2,000, and we think this offer was made shortly before the aforesaid answer was filed. This proposal was submitted by them to their New York attorneys and by said New York attorneys to their attorneys in Kansas City for investigation and report, and D. J. Evans was notified of that fact. Subsequently, on an adverse report from their attorney in Kansas City, the proposition was declined and, as near as we can ascertain from the record, the said joint answer of Mary Thomas and Daniel and Charles William Evans was presently filed in the partition suit. Some months thereafter, to-wit, on September 27, 1901, D. J. Evans submitted another proposition to his nephews to buy their interests for $2,600; and, as a result of letters passing to and fro, thereafter, on a date somewhat uncertain, but, as we infer, on October 11,1901, the proposition was accepted
“This agreement, made and entered into this — day of October, 1901, by and between Daniel Evans and Charles 'William Evans, of the city of New York, State of New York, parties of the first part, hereinafter called the sellers, and Daniel J. Evans of the county of Jackson, State of Missouri, party of the second part, hereinafter called the buyer;
“Witnesseth, that the said sellers have bargained and sold to the buyer all of their undivided interest, being an undivided one-third interest in and to the following described real estate situate in the county of Cass, State of Missouri, to-wit:
“The southwest quarter of section thirty-five; the southwest quarter of the southwest quarter of section twenty-six; the east half of the northeast quarter of section thirty-four, except six acres off of the northwest corner lying west of Grand river; and the west half of the northwest quarter of section thirty-five, all in township forty-three, of range thirty-one; also the north half of the southeast quarter of section twenty-eight; the north seventeen and one-half acres of the southwest quarter of the southwest quarter of section twenty-seven; and five acres off of the south side of the northwest quarter of the southwest quarter of section twenty-seven, all in township forty-four, of range thirty-one. Also all of lot two of the northeast quarter of section three; thirty-six acres off of the west end of lot one of the northeast quarter of section three; and twenty acres off of the east end of lot one of the northwest quarter of section three, all in township forty-four, of range thirty-two; also part of lot thirteen, block five, in the original town of Harrisonville, Missouri, beginning at the northwest corner of said lot; thence south twenty-four feet, thence east eighty feet; thence north twenty-four feet, thence west eighty feet to the place of beginning.
*13 “Also all their right, title and interest in and to any and all other property, real and personal, received by the said Daniel J. Evans, as their attorney in fact and agent, as their share of the estate of Thomas D. Evans of Harrisonville, Missouri, deceased, all at and for the price and sum of twenty-six hundred dollars, payable as hereinafter provided.
'“Whereas, there is now pending in the circuit court of Cass county, Missouri, a suit brought by the said Daniel J. Evans against the said Daniel Evans,. Charles William Evans and one Mary Thomas, since deceased, for the partition of the real estate herein-before described, which the said Daniel J. Evans is endeavoring to bring to a speedy termination.
“Now, therefore, it is agreed by and between the parties hereto that said purchase price of twenty-six hundred dollars hereinbefore provided to be paid to the said sellers by said buyer shall be paid as soon as said partition suit may be finally determined and in any event within six months from the date hereof. The said sellers agree concurrently with the payment of said purchase money to execute and deliver to said buyer a good and sufficient deed of general warranty, properly executed, conveying the fee simple title to one-third interest in said real estate and to execute and deliver such bills of sale, assignments or other conveyances as the buyer may require, to said property outside of said real estate in which said sellers aré interested.
“Time is and shall be essence of this contract and the conveyance of said property as herein provided shall be consummated within six months of the date hereof.
“In witness whereof, the said parties have hereunto set their hands and seals the day and year first above written.
‘ ‘ Chas. W. Evans, (Seal)
“Dan’l Evans, (Seal).”
This telegram was followed by a letter from their local counsel in New York, as follows:
“Dear Sir: In reply to your favor of the 18th instant, I would say that Mr. Daniel Evans is at the present time at my office and that he informs me that he and his brother desire you to prosecute with the greatest vigor the action now pending in which they sometime since sent you a retainer.
‘‘Our clients have signed a contract with their uncle to accept $2,600, but this contract, I am informed, was obtained from them by means of misrepresentation practiced by their uncle and should he ever commence an action upon such contract our clients desire to fight him upon it, alleging its invalidity.
“A.t any rate, they do not yet seem to have trans*15 ferred their interest to their uncle, either in the property or in the action, and, therefore, they are in a position to fight the present case in the courts.
“Kindly let me hear from you at the earliest possible moment as soon as there are any results.
“Mr. Daniel Evans says he wrote you some time since asking you about the condition of the case, hut that you failed to reply to him. I remain, Yours respectfully. ’ ’
Notice of this somewhat belated intention to rescind was confessedly kept secret from D. J. Evans and his attorneys. In ignorance thereof, they, after a prolonged negotiation with opposing counsel, consented to a decree in partition five days later, which decree was in pursuance of a compromise stipulation entered into materially reducing the amount of D. J. Evans ’ asserted demands against his cotenants, and which decree was followed by a report of commissioners giving Daniel and Charles William Evans a farm known as the “Bridges farm,” described as the southwest quarter of section thirty-five, township forty-three, range thirty-one, in the county of Cass in the State of Missouri, and the eighty-five shares of hotel stock. The report of the commissioners was confirmed on the 11th day of January, 1902.
Thereafter, on his nephews being applied to for a conveyance pursuant to the contract of purchase, D. J. Evans for the first time learned they repudiated the contract and denied its validity. Whereupon he instituted a suit for specific performance in the circuit court of Cass county on March 6, 1902, making his nephews and the Fidelity Trust Company defendants, and tendering the contract price, asking, however, to have the same reduced by the amount of a certain collateral inheritance tax, certain costs in the partition proceedings, certain fees for defendants’ attorneys in said partition proceedings, which fees were charged against
To the bill thus lodged, Daniel and Charles William Evans filed an answer, denying some and admitting other allegations, and, by ^a way of cross-bill for affirmative relief, they averred in substance that they knew nothing of the value of their interest in Missouri; that D. J. Evans was their agent, their kinsman and adviser to whom they looked for counsel with reference to the management, control and disposition of their estate; that the said D. J. Evans advised them that their interest did not exceed $2,600, and that such representation was made to them for the purpose of cheating and defrauding them and to induce them to enter into a contract with him disposing of $5,200 worth of property for $2',600; that they relied on said representations, and, so relying, executed the contract in suit which they pray to have rescinded, and that title be vested in them, in accordance with the partition decree.
The Fidelity Trust Company filed an answer placing itself in a neutral position by asserting that it held title since the partition decree and is ready and willing to carry out the terms of its trust and of said decree, alleging, however, that there are $40 due it for its services and praying that the same be allowed, together with a reasonable attorney’s fee in this proceeding, because, it says, that under its trust agreement it held title subject to such charges.
To the answer of Daniel and Charles William Evans, plaintiff filed a reply denying the averments of fraud and misrepresentation of the value of the property contracted to be conveyed, as alleged in the answer ; and denying, furthermore, that Daniel and Charles William Evans looked to plaintiff for counsel and advice and relied upon statements and representations of this plaintiff leading up to the contract; and denying that his statements were false or were made
Supplementing these denials the reply set forth the following affirmative averments:
“For further answer to said cross-petition plaintiff states that during the time of the negotiations which resulted in the contract, a copy of which is attached to the plaintiff’s petition, and for a long time prior thereto, said defendants, Daniel Evans and Charles William Evans, had their regular attorney and counsel in Kansas City, Missouri, who advised them in regard to the management and disposition of their interests in the estate of Thomas D. Evans and that at the time that said contract was entered into and for some time prior thereto this plaintiff was not acting as the agent or adviser of said defendants, and that during the progress of the negotiations which resulted in said contract this plaintiff requested said defendants to come to the State of Missouri, for the purpose of personally inspecting ■said property, described in said contract and satisfying themselves as to its value; that said defendants stated that the land was of no use to them and that their object was to get the money for it at the earliest time possible and at the time that said contract was signed and for some time prior thereto said defendants were well informed as to the approximate value of their interest in the estate of the said Thomas D. Evans and had the advice and counsel of their attorney in regard thereto.
“Plaintiff further states that said sum of $2,600 was a fair price for the interest of said defendants in the estate of the said Thomas D. Evans at the time said contract was entered into.
“Plaintiff further alleges that at the time the stipulation above referred to was entered into and during all the negotiations between plaintiff and defendants resulting in the execution of said stipulation and the entry of the decree in said partition suit, the fact of the*18 existence of said contract was known and understood and its validity was not questioned by either party thereto and plaintiff was induced in reliance upon it to waive and forbear the prosecution in said partition suit of his claim for services and a large part of his claim for money advanced in behalf of defendants and to enter into said stipulation and agree to the entry of said decree, of all of which the defendants had knowledge; by reason whereof the plaintiff having in reliance upon said contract altered his position in said partition suit, says that defendants are now estopped to urge any invalidity in said contract or to object to performing the same.
“Wherefore plaintiff prays judgment as in his petition.”
At a trial on issues thus roughly outlined, evidence was introduced establishing, not alone the facts herein-before stated, but uncovering other material facts presently to be stated in connection with a consideration of the issues involved. The chancellor entered a decree for defendants, rescinding the contract and vesting title in Daniel and Charles William Evans, from which decree plaintiff duly appealed.
Certain subsidiary questions are presented here, but the controlling questions are:
First. Whether a confidential relation existed between the uncle and his nephews at the time the contract was entered into, and, if so, has D. J. Evans successfully carried the burden placed upon him by the law (under such hypothesis) of showing the contract fair and equitable?
Second. Is there merit in appellant’s contention that by concealing their intention to rescind, and by allowing appellant to proceed in the partition suit in ignorance thereof, they lost their right to a rescission and estopped themselves to challenge the validity of the contract?
(1) It is axiomatic in the law that business deal
In the case at bar, it is contended by respondents’ counsel that on October 11, 1901, the date of the contract sought to be specifically performed, D. J. Evans was the kinsman and confidential adviser of Daniel and Charles William Evans, his nephews, and that he abused his position as such kinsman and confidential adviser to procure an unconscionable contract. If this contention be true, it needs no citation of authority to show that a court of conscience will not and ought not
“The only safe and just rule, for the interpretation and construction of private letters, is, that we discard everything which is not a bare statement of fact, or which does not carry along with it irresistible evidence of truth. Even the statement of facts ought to be given so as not to requre any completion, on the side of the receiver of the letter, such as- the letter-writer knew would be added during the perusal by the person addressed. As to everything else, the language of a private letter is so entirely founded upon the relation between its writer and the receiver, their acquaintance with each other’s character, use of words, nay, some*21 times with the very accent with which the writer is in the habit of pronouncing certain sentiments or words, and upon a knowledge of so many details, which, though unmentioned, serve to give the right meaning to the words, that a letter, destined to remain private, frequently changes its whole character as soon as it is made public, and when a third person attempts to interpret whatever can be doubtful or ambiguous. The relation between two persons forms a key to their correspondence, for which nothing else can be substituted. There is a private usus loquendi between friends, husband and wife, members of a family, etc., which cannot be known by others.”
Judged by the foregoing rule, we cannot hold the letters of D. J. Evans satisfactory evidence showing the intent and purpose insisted upon by respondents. His letters to them and theirs to him show solicitude over delays, over costs accruing, over attorneys’ fees piling up, over misunderstandings that had obtruded themselves, show assurances of esteem and of good family disposition, but they fall far short of establishing ulterior and reprehensible motives on the uncle’s part. It seems all parties interested in the estate resided at a great distance. It is true Mary Thomas had a son on the ground, but at that time this son was only interested as an heir expectant, because his mother was alive. Living elsewhere, it was but natural that everyone should be bent on a quick realization in cash, so that they might go their ways, according to the even and usual tenor of their lives. So far as the record shows, every penny of this estate had been recovered by the diligence and enterprise of D. J. Evans — at the hazard of his own expense had he been unsuccessful. "In trying to dispose of the estate and realize thereon, differences sprang up between him and his nephew, William Thomas. The state of his accounts was questioned, his expenditures were questioned and his management criticised and objected to. It resulted that
(2) But it is said the contract is unjust and inequitable; that the interest of Daniel and Charles William Evans was, at a fair valuation, over $5,000 in round numbers, and that, therefore, a court of equity should not specifically enforce the contract. Of this’ contention it may be said in a general way, that, within the bounds of judicial discretion, a chancellor will not, whether or no, enforce a hard and unconscionable contract. On the other hand, courts were not created to lay a. judicial ax at the root of contracts entered into by those who are sui mris and pertaining to a subject-matter not contra bonos mores. The prime function of courts of justice is to enforce the written law and enforce established contracts' — a contract being, as between the parties thereto, but a law unto themselves. We have critically examined the record facts to see whether the contract should be disturbed because unconscionable, and have come to the conclusion it cannot be
Without cumbering this opinion with the details of the evidence of the experts on values, we announce our conclusion to he that there is no such infirmity in the contract as justified the learned chancellor below, in refusing to enforce it.
(3) We now approach the question of estoppel lodged in the case by appellant’s reply. And in this insistence we think there is merit. To understand it, it will be necessary to state a little more in detail some of the facts not hereinbefore uncovered. Those facts are as follows: While the title was in the Fidelity Trust Company in trust, that trustee advanced D. J. Evans $1,200. At the time this advancement was made, he had been subjected to personal expenses and outlays in and about the affairs of his principals in a dignified figure. His financial standing and ability to command cash are not disclosed here. Presumably, the advance was legitimate and within the purview of his rights and necessary in the recovery and conservation of the estate. When the trial in the partition suit was at hand, all the parties and their respective attorneys knew that the contract in suit was outstanding. But Daniel and Charles William Evans and their attorneys knew something the attorneys for D. J. Evans and D. J. Evans himself did not know, to-wit, that they did not intend to stand by their contract, and that the partition suit was to he an adversary proceeding, so far as they
Furthermore, running through that consultation and leading up to that compromise, like a well-marked thread, is the fact that D. J. Evans, on the theory that he had bought his nephews’ interest, was led to largely forego his claim for services. It seems he was willing to let the heirs of his sister Mary, then dead, have the advantage resulting from abating, to a degree, these demands, because, as purchaser from his nephews, he would receive back from them the benefit of one-third of these expenses thus remitted. In other words, if the expenses were divided into three equal parts, one part to be borne by Mary Thomas, one part by his nephews and one part by himself, and if he was the owner of his nephews ’ share and obliged to pay them a net sum, he would at the end only lose the one-third of the expenses properly chargeable to Mary Thomas. We are convinced this was a material, persuading cause in his agreeing to the compromise.' The record to our mind clearly indicates, furthermore, that Daniel and Charles William Evans must be charged with notice of the fact,
It is our conclusion on this branch of the case that typical facts constituting a. plain estoppel appear in this record. It is our conclusion, furthermore, that respondents did not move with the speed and fairness required of them to entitle them to a rescission and, therefore, we are' of the opinion that the decree of the chancellor rescinding the contract ought not to stand, but that the doctrine of estoppel should be allowed full force in this controversy.
(4) But appellant does not construe the contract correctly. That contract provides for a net sum. It contemplated, furthermore, a partition, with the usual incidents of costs. It results that the nephews must be relieved from the legal costs of such partition, however large they be. The idea of a net sum also excludes taxes and the nephews must be relieved from all collateral
The same theory of a net sum relieves the nephews from liability for trustee’s fees, if any, accrued up to the date of the partition. Not so, however, for trustee’s fees and fees for services of attorneys to such trustee accruing since the repudiation of the contract. All such fees should be borne by Daniel and Charles William Evans. And if any such exist, the contract price should be diminished thereby.
A rather anomalous condition of things presents itself relating to attorneys’ fees for respondents’ counsel for services rendered to defendants in the partition suit.- It seems that in the partition decree, fees were allowed to defendants’ counsel, and such fees were charged against the interests of all the defendants in that suit set off to them in partition. It is contended by appellant that the contract does not require him to pay such fees and in this contention we think he is right; because the contemporaneous construction placed on the contract by D. J. Evans and his nephews, as shown by the correspondence, was that the nephews should pay their own attorneys ’ fees. The net sum they were to receive was not understood by the parties to that contract to relieve the nephews from settling with their attorneys. It seems that the novel plan was hit upon of having these fees taxed and charged against the real estate of the nephews and Mary Thomas. Whether the law allows this to be done need not be considered by us in this case. Suffice it to say, it ivas done and the decree was not appealed from. In this situation of things, with those fees a charge upon the real estate, the subject-matter of the contract in question, the contract price should be diminished by the amount of the fees so charged against the interest of Daniel and Charles William Evans, to-wit, one-half of $800, or $400.
Whether there has been an income from the prop
The record does not show that appellant paid the purchase price into court or kept his tender good, hence, he should be charged with interest at six per cent.
The cause is, therefore, reversed and remanded with directions to the lower court to decree the specific performance of the contract and to vest in appellant and out of Daniel and Charles William Evans and the Fidelity Trust Company the title to the Bridges farm, hereinbefore described, and the eighty-five shares of hotel stock awarded to Daniel and Charles William Evans by the partition decree. That court is further directed to require appellant to pay into court for the use of Daniel and Charles William Evans the contract price, $2,600, plus interest at six per cent, diminished, however, by the $400 attorneys’ fees due their attorneys now a charge against the real estate, and diminished by any fees the lower court may allow to the Fidelity Trust Company for services as trustee and to its attorneys for services accruing since the decree in partition, and to otherwise proceed in accordance with this opinion.