| Mo. Ct. App. | Mar 31, 1903


1. The contract of defeasance vested in defendant or plaintiff the power to sell the property at any time within sixty days at private sale subject to the approval of Lane and Hayden. After the expiration of the sixty days, defendant’s power to make a private sale of the property terminated. The sale, therefore, made by him was without authority and we can not see upon what principle of law or equity he is entitled to charge the plaintiff, or the proceeds of plaintiff’s property, with his expense and outlay in bringing about the wrongful sale, and we think that he should not have credit for the two hundred dollars paid to Lane as commission for effecting the sale.

2. Under the terms of the agreement the defendant was entitled to a sale of the lot, but only so after a judgment of foreclosure and order of sale by a court of competent jurisdiction (sec. 4342, R. S. 1899); however, the private sale made by defendant was effectual to convey the legal title to Diesing unaffected by the plaintiff’s equity of redemption for the reason that Diesing was unaware of the existence of that equity when he made the purchase. In making the private sale, the defendant, to use the language of the Supreme Court in respect to a sale made under similar conditions in the case of Wilson, v. Drumrite, 24 Mo. 304" court="Mo." date_filed="1857-01-15" href="https://app.midpage.ai/document/wilson-v-drumrite-7999988?utm_source=webapp" opinion_id="7999988">24 Mo. 304, should not *40be regarded as a “malefactor.” But in equity and good conscience lie should be held to the exercise of the utmost good faith and he required to account for all that he received for the property and if he sold it for less than its market value he should unquestionably he required to account to the plaintiff for its full market value, irrespective of what he may have sold it for. Wilson v. Drumrite, supra; Turner v. Johnson, 95 Mo. l. c. 450.

The market value of the property at the time of the sale is the principal question in controversy.

Plaintiff called as witnesses six real estate men, namely, Menkins, Fisher, Haydell, Madden, Cornet and Crone, all of whom were more or less acquainted with the property and informed on the value of real estate in said city. Two of them, Menkins and Haydell, valued the property at ten thousand dollars. Two others, Fisher and Cornet, valued it at nine thousand dollars. Madden valued it at twelve thousand dollars and Crone at from ten to twelve thousand dollars.

Defendant called four real estate men, Wade, Bowman, Lane and Scramm, who were acquainted with the property and who were experienced real estate men, in the city of St. Louis, and acquainted with the values of real property in said city. Three of these witnesses placed the market value of the property at the time of the sale at seven thousand five hundred dollars and one at seven thousand six hundred dollars.

Madden, one of the plaintiff’s witnesses, was indirectly interested in the result of the suit.

Menkins testified that he had been entrusted with the sale of the property by plaintiff prior to February, 2897, but that he had been unable to sell or exchange it at a valuation exceeding seven thousand five hundred dollars and did not know whether he could now sell it for that much or not; that there is a vast difference *41between the value a man puts on property to bold it and wliat it can be sold-for in cash.

Fisher testified, on cross-examination, that the property would not have brought more than seven thousand five hundred or seven thousand six hundred dollars at forced sale in October.

Haydell said on cross-examination that he doubted his ability to get eight thousand dollars for it; that from seven thousand five hundred to eight thousand dollars was what he thought he might get for it because of the small demand for real estate. The witness stated that it was a difficult matter to determine the value of a piece of real estate from an expert point of view as distinguished from an actual sale. “Men of long experience in the real estate business will differ very considerably on such questions quite often; ’ ’ that it is the general tendency among real estate men to keep the values up.- “We claim where property will show a larger return on a given amount of money than stocks or bonds, or any other form of investment, it is worth that given amount.” The witness stated that he'had no actual experience with the property in respect of its rents or expenses.

Cornet on cross-examination testified that he placed the value of the property at what, in a reasonable time, during the course of three or four years, it could be sold for; that at a trustee’s sale, at the time in question, it might not have brought more than $7,500; that he had no actual experience with .the property in respect of rents or expenses, and that the property was in considerably better condition at the present time than it was when he examined it in 1897.

Cook, the district assessor of the city of St. Louis, testified that he made assessment of the property in question in 1897, which assessment was $6,900; that he did not know the market value of the property; that the present rental from the property was about $76 a month; that computing from this as a basis he deemed *42the property worth $7,500; that the present assessment of the property was $6,100.

Crone on cross-examination testified that he did not mean that the property conld have been sold in the market for $10,000, bnt that he based an intention to lend money upon it, upon the revenue the property produced; that in his judgment the value of the real estate should be estimated upon its income.

Eestus J. Wade, one of the witnesses for defendant, testified that he was president of the Mercantile Trust Company and was familiar with the property, and that in his judgment it was worth $7,500; that there had been no change in value since May, 1897; that he had large experience in real estate matters through many years in the city of St. Louis, and that property of the kind to which this property belonged, paying $900 a year in gross rents, would not be worth more than $7,500; that if he owned the property himself at the present time he would sell it for $7,500.

Bowman, another witness for defendant,' testified that he knew the property, and that he regarded it as worth $7,500; that there was not much difference in value of the property between May, 1897, and the present time; that it might have been worth $500 more in May, 1897, because of subsequent depreciation.

The witness also testified that he had sold the property for the owner of it in November, 1899, for the sum of $6,350; that the sale was made after efforts on his part to find a purchaser at its value; that he advertised the property and had written other agents, and finally found a purchaser at $6,350, which was the best price he could get.

John J. Lane, a witness for defendant, testified that he had sold the property as agent for Mr. Cullen, defendant; that he had made unusual efforts to find a purchaser, and that the amount obtained for it ($7,600) was as much or more than it was worth. He also testified that there had been over $1,400 spent upon the *43property since the sale to Diesing, and that the property at the date of the 'trial-was not worth over $7,500. The witness also testified that previous to the time of making the sale at $7,600, he had frequent conversations with D. J. Hayden, who considered that he had done very well in making the sale at that price.

Prank W. Seramm, a witness for defendant, testified in substance that in his judgment the property, was worth in May, 1897, between $7,-500 and $8,000; that he had the practical management of the property in the collection of rents and payment of expenses.

It seems to us that plaintiff’s witnesses, in the main, estimated the value .of the property at what they thought it ought to sell for and not what it could have been sold for — estimated its value as an investment and not its market value.

In St. L., etc. R. R. Co. v. Knapp-Stout & Co. Company, 160 Mo. l. c. 410, the Supreme Court, in a condemnation proceeding, approved an instruction defining market value as follows:

‘ ‘ By the market value of property is not meant what could be obtained for it at forced sale, or at a sudden demand for the sale thereof, but the market value referred to is when the man owning the property is willing, but not obliged to sell it, and the person to whom it is offered is willing or desires to purchase the same, but is not obliged to do so. ”

It would be difficult to apply this definition of market value to the facts in this case, for the reason the evidence shows that plaintiff, or some one for him. was obliged to sell the property or suffer a foreclosure ^ of the mortgage held by-the St. Louis Trust Company, or a foreclosure of its equitable mortgage in the near future.

The definition of market value given in Lawrence v. City of Boston, 119 Mass. 126" court="Mass." date_filed="1875-11-10" href="https://app.midpage.ai/document/lawrence-v-city-of-boston-6418306?utm_source=webapp" opinion_id="6418306">119 Mass. 126, in substance as follows: The market value is the fair value of the property as between one who wants to buy and one who wants to *44sell, irrespective of peculiar circumstances rendering the property of peculiar value to either the purchaser or vendor — fits the circumstances of the ease in hand and furnishes a guide by which the market value of the property may he justly estimated. Everett v. Railroad, 59 Iowa. 243. The plaintiff was anxious to sell. He had, prior to February 18, 1897, placed the property in the hands of a real estate agent for sale with authority to sell it at any price exceeding seven thousand five hundred dollars. This agent had made ineffectual efforts both to sell and exchange the property and we think it is fairly inferable from the evidence that had plaintiff, at any time within the sixty days he was authorized by the agreement of February 18, 1897, to sell the property, been offered seven thousand six hundred dollars for the property, he would have gladly accepted the offer.

The evidence in the case, when carefully weighed and considered, convinces us that defendant sold the property at its full market value on May 17, 1897, and that he is accountable to plaintiff only for what remains in his hands after paying out all the charges he was authorized to pay under his agreement with plaintiff. He should be charged with the cash received on the sale and for rent, torwit, one thousand four hundred and ninety-three dollars. He is entitled to the following credits: For payment of interest and taxes seven hundred and eighty-eight dollars and one cent; his own judgment of four ‘hundred and thirty-one dollars and twenty cents and interest thereon, sixty-six dollars and thirty-four cents; costs of suit, five dollars and thirty-four cents; total, thirteen hundred and thirteen dollars and thirty-nine cents, leaving a balance due plaintiff of one hundred and seventy-nine dollars and sixty-one cents, to which should be added interest at the rate of six per ■cent per annum from May 17, 1897.

The judgment is therefore reversed and the cause *45. remanded with, directions that the circuit court set aside its former judgment and enter judgment for plaintiff for one hundred and seventy-nine dollars and sixty-one cents, with interest thereon from May 17, 1897.

All concur.