69 Mo. App. 84 | Mo. Ct. App. | 1897
Lead Opinion
In the spring of 1891 the Union Depot. Company began proceedings to condemn certain real estate belonging to Charles Slevin, which was occupied at the time by certain tenants (one of whom was the-plaintiff), who owned the improvements on said land. These tenants were not made parties to said proceedings. When the report of the commissioners was being ■ made up, it was agreed between the attorney of tenants
Concurrence Opinion
CONCURRING OPINION.
In the case of Mount Olive Coal Company v. Slevin, 56 Mo. App. 107, there was no substantial evidence that Eugene Slevin had been employed by Charles Slevin to represent him in the condemnation proceedings. That question was at the threshhold of the case and had to be determined first. Behind it were other questions (affecting the liability of the deceased) which it was unnecessary to decide, and which we did not attempt to pass on.
In the case at bar the contention of counsel for plaintiff is that there was some evidence of the employment of Eugene in the first instance. The defendant denies this. Conceding that there was such evidence, one or two obstacles present themselves which, in my opinion, preclude a recovery. The arrangement entered into by Eugene was without the consent of the deceased. The former could act without the consent or direction of his client only as to those matters which were incidental and necessary to the proper management of the suit and which affected the remedy only. He could not impose upon the deceased a trust collateral to and independent of the subject-matter of the suit. This Eugene certainly attempted to do when he entered into the agreement with the tenants, for the deceased had no interest in their claim, and the assessment of their damages for the destruction of the buildings was in no way necessary to the proper or speedy determination of the action against him. But conceding that I am wrong in this, the evidence is undisputed that at the time Eugene made the arrangement with the tenants the deceased had peremptorily discharged
Another contention is that the estate of Slevin is estopped to repudiate the alleged trust. We can not conceive upon what principle this can be maintained. It can not be on the score of ratification, for all of the evidence is to the effect that the deceased was not informed of the alleged agreement with the tenants. Neither can it be sustained upon the ground that he or his personal representative received the money. The day before he died the money was deposited by the Union Depot Company in court. He took no steps to reduce it to his possession, and his administratrix repudiated the trust and refused to receive it. For the foregoing reasons I think the judgment of the circuit court ought to be affirmed.