30 Mo. App. 585 | Mo. Ct. App. | 1888
delivered the opinion of the-court.
The plaintiff, prior to the- dates herein stated, was-administrator of the estate of one Carroll. Upon final settlement of the estate it was indebted to him in the sum of fifteen hundred dollars, and more, and it was-agreed between himself and the heirs that he should reimburse himself out of rents to-be collected from certain realty belonging to the estate, situated in St. Louis.. The defendant, during the administration and thereafter, collected these rents as house agent, and paid the proceeds to plaintiff. It is conceded that at the date of the institution of this suit there- was in the defendant’s-hands a sum of one hundred and seventy-five dollars, balance of rents thus collected, and that plaintiff was entitled to such balance, unless the defendant was entitled as against him to a counter-claim for that amount, owing to the services hereinafter stated. The court rendered judgment for plaintiff for one hundred, and seventy-five dollars, and interest.
The complaints made on this appeal are, that the-court excluded certain evidence offered by the defendant, and that the judgment is against the evidence.
It appeared in evidence that, in May, 1886, the-defendant while acting as house agent for the plaintiff was instrumental in effecting a lease of the property for ten years. No compensation was agreed on for this service, and the evidence tends to show that the defendant intended to make no charge for it when rendered, expecting to continue the agent for the collection of rents under the new lease. There was, however, neither agreement nor understanding that he should so continue. The benefit of the new lease has enured mainly to tha
The defendant, after the execution of the new lease, •continued to act as collecting agent for six or seven months, rendering several accounts to plaintiff, but never mentioning any claim for commissions in effecting this lease. At the close of this period the plaintiff discontinued the defendant’s services for reasons of economy, and then, for the first time, the defendant presented a claim for one hundred and seventy-five dollars, value of his services for effecting this lease.
No instructions were asked or given upon the trial. The testimony excluded consisted of evidence of other house agents as to the value of defendant’s services in effecting this lease, and as to a custom between house •agents of making charges in such cases ; no knowledge .of this custom was brought home to the plaintiff.
There is no error in the record. The law cannot imply a promise contrary to the intention of the parties. The evidence was sufficient to justify the court in finding that no charge was intended when the services were performed, and such finding was fatal to defendant’s counter-claim. Hay, Adm’r, v. Walker, 65 Mo. 17; Aull Savings Bank v. Aull, 80 Mo. 202; Allen v. Bowman, 7 Mo. App. 29; Ryan v. Lynch, 9 Mo. App. 18. As there was no foundation for defendant’s counterclaim, evidence as to the value of the services constituting it was irrelevant and properly rejected.
Judgment affirmed.