50 Mo. App. 382 | Mo. Ct. App. | 1892
— This was a suit upon an open account for coal furnished by the respondent at what is known as Landis Court, situated on South Broadway, Kansas City, Missouri. There was a trial where evidence was introduced tending to prove that J. K. Landis was the original owner of the Landis Court, -consisting of two blocks of buildings, known as north
It seems that Mr. Holmes complained to Landis that the rents were not being applied to pay the Lombard interest, and that, if it was not done, the company would sell the property out; that Mr. Landis then agreed that he would put E. H. Webster in charge of it to collect the rents, and after paying the running expenses that he should turn over the balance to the Lombards to keep them from selling it. A short time after Webster took charge, Landis traded or exchanged the south half of the property to E. B. Millett for some land in Kansas; this was done in the spring or early summer of 1888, and Mr. Holmes released the south half 'of the court from his deed of trust, and Landis conveyed the Kansas land to him, which was credited on his indebtedness to Holmes. One of the conditions of the sale to Millett of the south half made by Landis was that Webster should furnish light and heat to the south half, as all the heating and
In August, 1888, Mr. Holmes died. Webster continued in possession of the property for Landis and kept it up and also acted as Millett’s agent for the south half of it until the spring of 1889. After Webster took charge, the property did not bring enough in rents to pay the expenses and the interest due the Lombards, and Mr. Ward, one of the executors of the Holmes estate, being informed by.the Lombards that they would sell the property if the interest was not paid, paid to them over $1,000 interest to prevent the sale and protect the interest of the Holmes estate in the property. Landis still continued in charge of the north half through his agent, Webster, it being the half on which the Holmes estate still had a second deed of trust.
Mr. Landis had authorized Mr. Ward to sell any of the property upon which he had given the Holmes deed of trust and apply its proceeds on his indebtedness to the Holmes estate. Along in the fall of 1889, Mr. Ward made a sale or contract of sale of one of the pieces of property covered by the Landis-Holmes deed of trust other than Landis Court, and there being all kinds of claims against Landis, to secure the party the title, he had the entire property covered by the deed of trust sold under it by the sheriff, as he (Ward), being both executor and trustee, could not make the sale. At this sale, Ward as executor bought all the property, including the north half of Landis Court, except the piece he had agreed to sell to the third party, which was bought by him, and the money he paid was credited on
It further appears that a short time after this the Lombards again threatened to sell the property, or the part bought by the Holmes estate, and in January,' 1890, Mr. Ward in behalf of the estate informed the company that they could sell it if they wished to, as the Holmes estate would pay no more interest, and about Eebruary 1, 1890, they advertised the property for sale. The executors then made a sale of their equity in the north half to E. B.Millett, and he paid the interest due the Lombards and prevented the sale. The sale to Millett was to date, as being made March 1, 1890, but owing to the title not being satisfactory as shown by the abstract when first delivered, it was not completed until the latter part of the month. When the sale was completed, Mr. Webster turned the property over to Mr. Millett.
It further appeared that the plaintiff made a contract with the defendant Palvey, who was an engineer in charge of the heating and lighting of Landis Court as an employe of Webster, to furnish coal to the court, and that it did so, and that its bills were presented to and paid by Webster except the bill for $354.84 which was for coal delivered during the months of February and March, 1890, which was used to heat and light the court. This is substantially all the evidence in the case. The plaintiff had judgment, and defendants have appealed.
The principal error complained of is the action of the trial court in giving on its own motion an instruction which told the jury that if it believed from the evidence that ’Webster took control and charge of the Landis Court and the running and operation of the same for the benefit of Judge Holmes, and for the
It is not believed the evidence justifies the giving of this instruction. It is quite true that, in so .far as the rents were applied to the extinguishment of the first mortgage, the security of the second mortgage was thereby enhanced. And while this was for the benefit of Holmes and for the promotion and protection of his interest, yet upon what principle can it be claimed that the agent selected by Landis with the consent of Holmes to carry out this beneficial arrangement was also the agent of the latter? ■ In order to enable Webster as the agent of Landis to carry out the arrangement entered into between Landis, his principal, and Holmes, it was not necessary that he should be the •agent of both. An agency is oftentimes implied, but it is not to be implied without reason or presumed without cause. There is nothing in the facts embraced in the hypotheses of this instruction from which the law would imply or presume such an agency as is claimed; such an implication or presumption must be based on facts. The mere fact that Webster took charge of the ■court, and ran it for the purposes which the evidence discloses he did, cannot justify the conclusion of law that he was the agent of Holmes.
It certainly will not do to say in a case like this where a mortgagor appoints an agent with the consent
Our attention has been called to no other error which we deem serious or prejudicial. The defendants’ counsel in the brief complain that the circuit judge who tried the case manifested some unfairness and prejudice to defendants during the trial. We have carefully scrutinized the record of his action during the trial from the beginning to the ending, and it is but right that we should say that we have found nothing therein to justify.the complaint made.
It results that the judgment will be reversed and cause remanded.