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reversed, and the cause remanded, the plain; in those states, and thereby deprive the de-
tiff filed an amended petition. It was al- fendants of an opportunity to appear and
leged, among other things, in the first peti- dispute the averments of the complaint or
tion, that the defendant here appeared in his petition. These cases are therefore wholly
attachment suit, and presented his petition unlike the one now in hand, for here the or-
to the court, and falsely and fraudulently der of publication was duly and properly
represented and stated that plaintiffs here and in good faith made after a non est re-
(defendants there) were the owners of real turn. There was no evasion of the law in
and personal property which they inherited procuring the order of publication. In con-
from their mother, and that she inherited the templation of law, the publication of the or-
same property from her father, John Howell. der in the attachment suit was notice to the
It was alleged in the amended petition in defendants. Jones v. Driskill, 94 Mo. 191, 7
this case that defendant appeared in his at. S. W. 111.
tachment suit, and then and there, either It is unnecessary to add anything more to
knowingly and intentionally, for the pur- what was said on the former appeal. The
pose of defrauding these plaintiff's, “or while judgment is affirmed. All concur.
he was laboring under a gross mistake as to
the facts in the premises,” falsely and. er-
roneously and untruthfully represented that,
etc. In other respects the pleadings are the

In re FERGUSON'S ESTATE. same as they were when the case was here

Appeal of PLANET PROPERTY & FINANbefore, and there is no substantial difference in the evidence. It appears now, as it did

CIAL CO. then, that the defendant in this case (plain

(Supreme Court of Missouri, Division No. 1. tiff in the attachment suit) instituted and

July 9, 1894.) prosecuted that suit in perfect good faith,

SPECIFIC PERFORMANCE -TRE CONTRACT-MUTUbelieving he had a just demand against the

ALITY-RIGHTS OF CREDITORS-LACHES.

1. J., as trustee of certain property, made present plaintiffs. It was said on the for

a deed of trust thereon to secure a note of $10,mer appeal, and has been repeated in subse- 000 and interest. At a trustee's sale 212 years quent cases, that "the act for which a court after the maturity of the debt, F., who held of equity will, on account of fraud, set aside

the principal note, on which $11,500 was due.

purchased the property for $9,705. J. had paid or annul a judgment or decree between the $2,400 in interest, his beneficiary having paid same parties, rendered by a court of com- none, and at the time of the sale he held part petent jurisdiction, have relation to frauds

of the notes. Before the sale, F. agreed to hold

the title as security for $10,000 and interest extrinsic or collateral to the matter tried by

from date of sale, and that, when such sums the first court, and not to a fraud in the mat- were paid, F. would convey the property to J. ter on which the decree was founded." AN Indorsements showed six semiannual payments

afterwards made. the averinents of fraud, as well as the new

Held, that J.'s assignee was

entitled to specific performance of such conaverments of mistakes on the part of Leyh,

tract by F.'s administrator, as against F.'s credrelate to matters on which the former judg- itors. ment was founded, and not to any matter

2. The rule that specific performance is extrinsic or collateral to the issues that might requires a much less strength of case on the

in the sound discretion of the court, and that it have been raised in that case. It is obvious

part of defendant to resist a bill than it does that the insertion of the averment as to mis- on plaintiff's part to maintain one, does not take on the part of Leyh does not call for the

apply.

3. There was no want of mutuality in application of any other rule than that be

such contract, since F. could foreclose the equifore stated.

ty on failure of J. to pay the principal within In the case of Hayden v. Hayden, 46 Cal. a reasonable time, or to pay interest as it fell

due. 333, the judgment sought to be set aside was

4. F. died four years after such contract rendered on publication of notice.

The or

was made, and the interest was paid until der for publication did not direct a copy of his death. His administrator did not recognize the complaint and summons to be sent to the the rights of J.'s assignees, and made no effort

to enforce the lien or collect interest. An atdefendants, or any of them. This direction

tempt by him to sell the property to pay debts was omitted because the plaintiff had made was resisted by J.'s assignee, but there was no and filed an affidavit that she did not know tender to the administrator of the amount due where the defendants resided, and therefore

under the contract until just before suit was

brought for specific performance, seven years did not know at what place a communica

after F.'s death, when the property had doubled tion through the postal department would in value. Held, that relief should not be dereach them, when in truth she knew where nied because of the delay, or the default in each and all of them resided, and the aff

making payments as provided therein. davit was made and filed to prevent the de- Appeal from St. Louis circuit court; Daniel fendants from getting actual notice of the Dillon, Judge. suit. The case of Johnson v. Coleman, 23 Petition by Edward C. Dameron for an orWis. 452, is, in its facts, to the same effect. der requiring Horace Ghiselin, administrator In each of these cases fraudulent acts were of the estate of W. F. Ferguson, deceased, resorted to for the purpose of having the to perform a certain contract for the conprocess of the court served so as to avoid veyance by decedent of certain property, enthe actual notice contemplated by the law tered into between deceased and petitioner's

v.27s.w.no.6–33

assignor. From a decree of specific perform- to the said party of the second part the said ance, the Planet Property & Financial Com- real and personal estate, or to such person pany, a creditor of such estate, appeals. as the said party of the second part shall Athirmed.

direct; that, after the payment of said ten This proceeding was commenced in the thousand dollars and interest as aforesaid, probate court of the city of St. Louis, at the said party of the second part shall be the June term, 1891, against the estate of the owner and entitled to a conveyance of William F. Ferguson, deceased, upon the pe- the said property conveyed to said party of tition of Edward C. Dameron, as assignee, to the first part by said trustee as aforesaid, enforce the specific performance of a con- that the said party of the second part will tract for the conveyance of real estate by pay the said interest as aforesaid when it deceased to one William C. Jamison. For a becomes due as aforesaid. Witness our full understanding of the questions of law in- | hands and seals on this twenty-third day of volved the contract is given in full, and is December, eighteen hundred and seventyas follows: "Whereas, Jesse G. Lindell, by nine. William F. Ferguson. [Seal.] Wil. his last will and testament, dated January liam C. Jamison. (Seal.]” The indorsements 18th, 1858, and probated in the St. Louis on this contract showed that semiannual probate court February 9th, 1858, and re- payments of $400 each were made by Jamicorded in Book of Wills F, page 174, devised son July 14, 1880, February 25, 1881, March unto Jesse G. Lindell, Jr., a son of Peter 18, 1882, July 27, 1882, February 23, 1883; Lindell, 1-36 undivided interest in all of his and on the 25th day of July, 1881, a small property, of every nature and kind whatso- portion of the land was released in part payever, real, personal, and mixed, subject to ment of an installment of interest. After the life estate of Jemima Lindell, his widow; a hearing, the probate court ordered the ad. and whereas, the said Jesse G. Lindell, Jr., ministrator to make to the said Dameron a conveyed all of his interest in said estate as deed to the property, in execution of the conaforesaid unto his mother, Ellen Davis' trus- tract, and the appellant, who was a creditor tee; and whereas, the said Ellen Davis, by of the said Ferguson, appealed to the circuit her said trustee, by deed of trust dated court. Upon a trial in that court the followJune 30th, 1874, and recorded in recorder's ing facts were developed: By the will of office of the then county, now city, of St. Jesse G. Lindell, made in 1858, one thirtyLouis, in Book 505, page 78, conveyed the sixth interest in his estate was devised to said property to Charles Hoyle's trustee, to Jesse Lindell, subject to the life estate of secure the payment of the notes therein de- the widow of the testator. On the 27th day scribed; and whereas, in pursuance to the

of June, 1874, Jesse Lindell conveyed the said deed of trust on account of the nonpay- property to William C. Jamison, as trustee ment of said notes, Geo. W. Cline, trustee in for Ellen Davis. On June 30, 1874, Jamison, said deed of trust, sold the said property at as trustee, conveyed the property to George public auction on the 23rd day of December, W. Cline, as trustee, to secure a note for 1879, and at said sale William F. Ferguson $10,000, dated on that day, and payable three purchased a portion of said property, and years after date, and six semiannual interest by deed dated December 23, 1879, acknowl- notes for $500 each, the last one maturing edged January 26, 1880, before Dorsey A. 36 months after date. On the 23d day of DeJamison, the said George W. Cline, trustee cember, 1879, the land was sold by Cline, in said deed of trust, conveyed unto said as trustee, under a power contained in the William F. Ferguson the said property pur- deed of trust, and Ferguson became the purchased by him as aforesaid, and reference is chaser for $9,705, and a deed was made to here made to said deed for a more particular him, and on the same day the contract in description of said property, and the said question was made between Jamison and deed is here made a part hereof; and where- Ferguson. Ferguson died in September, as, a portion of said notes descr ed in said 1883, and his administrator is a party. On deed of trust were owned by William C. August 6, 1884, Jamison, being insolvent, by Jamison and the note for ten thousand dol- deed acknowledged and delivered, in conlars was owned by said William F. Fergu- sideration of $1,000 assigned said contract son: Now, therefore, for and in considera- to Logan D. Dameron. In February, 1886, tion of the premises, and for value received, the administrator of Ferguson undertook to it is hereby mutually covenanted and agreed sell the property for the payment of debts, by and between William F. Ferguson, party | but, owing to notice by Dameron of his of the first part, and William C. Jamison, claims under the contract, the sale was not party of the second part, that said party of perfected. About this time there were some the first part will hold said property as se- efforts looking to a settlement between Damcurity for the said ten thousand dollars and eron and the administrator, which were with: interest thereon from and after January 1st, out results. In November, 1890, Dameron 1880, at the rate of eight per cent. per an- made a tender to the administrator of the num, payable semiannually, and when the amount due on the note, calculating it with said ten thousand dollars shall be paid, and simple interest. The tender was declined. the interest as aforesaid shall be paid, then On the 11th of April, 1891, Logan D. Damthe said party of the first part will convey eron assigned the contract to his son E. C. Dameron. On that day E. C. Dameron and made. Ferguson declares in the contract the administrator of Ferguson entered into a that he holds the title as security for the $10,contract by which it was agreed that Dam. 000 and interest thereon from and after Janueron should present to the probate court his ary 1, 1880, at 8 per cent., payable semipetition for an order authorizing the admin- annually. I think there can be no doubt istrator to make him a deed under said con- that this agreement was made prior to and tract, and, if an order was made, the said in contemplation of the sale, and that the Dameron agreed to pay, within 10 days there- intention was that Ferguson should hold the after, the amount due on the note at 8 per legal title in trust, to be conveyed to Jamison cent. interest per annum from January 1, or his assigns upon payment of the stipulated 1883. In consideration of this contract, sum and interest. The deed of trust, under Dameron paid the administrator $1,000, which which the sale was made, secured what was was in addition to the note. The adminis- due to Jamison, as well as the amount due trator agreed to make a deed in pursuance to Ferguson, and the sale and purchase were of the order if obtained. In pursuance of evidently made for their mutual protection. this agreement these proceedings were com- Indeed, the interest notes held by Jamison menced. It appeared from the evidence that first maturing were entitled to precedence between the death of Ferguson, in 1883, and of payment, in the absence of stipulations to the date of the tender, in 1890, the property the contrary. The rule is that notes secured had increased in value 100 per cent. or more, by mortgage should be paid in the order in Ferguson's estate is insolvent, and appellant which they mature, notwithstanding all are is a large creditor thereof. The trial in the due when the sale is made. Thompson v. circuit court resulted in an approval of the Field, 38 Mo. 325; Mitchell v. Ladew, 36 action of the probate court, and an order Mo. 526; Hurck v. Erskine, 45 Mo. 486. Had in accordance therewith was made, and the the purchase been made by Ferguson by said financial company appealed.

agreement with Jamison, a resulting trust

would have arisen in favor of Jamison in T. J. Rowe and J. M. Holmes, for appel- proportion to the amount his debt bore to lant John D. Davis, for respondent

that of Ferguson. As is said, a "resulting

trust will arise in favor of the parties not MACFARLANE, J. (after stating the facts). named in the conveyance in proportion to the 1. The original rights of the parties must amount of the consideration which they may be determined from the contract itself, and have respectively contributed.” Hill, Trusin the light of the facts therein recited. The tees, 92; Baumgartner v. Guessfeld, 38 Mo. recitals, together with the will and deeds re- 41, and cases cited. The parties here did not ferred to, make up a very complete history depend upon a mere resulting trust, but by of the various transactions which led to mak- their writing declared an express trust, and ing the contract, and show very clearly the the terms of it are not left in doubt. The circumstances under which it was made. The title was taken by Ferguson, to be held as devisee of the property conveyed it to a trus- security for his debt. All matters of pretee, for the use of his mother, Ellen Davis. cedence, and the respective rights of the parThe trustee was William C. Jamison, one of ties, under the original mortgage, were adthe parties to the subsequent contract. justed and settled. The entire property was Within six days after the execution of this thereunder held to secure the single debt of deed, Jamison, as trustee, made a deed of $10,000.

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trust on the property to secure a note for 2. It is true, as claimed, that specific exe

$10,000 and six interest notes for $500 each. The deed of trust was made for the benefit of Charles Hoyle, from which we may infer that the notes were made payable to him.

cution of a contract in equity is a matter not
of absolute right in the party, but of sound
discretion in the court, and "it requires a
much less strength of case on the part of a

to a

after maturity. Default was made in the payment of the notes, and the property was sold December 23d, two and a half years after maturity. There was then due on the principal note, if no interest had been paid, $11,500, calculating interest at 6 per cent. A portion of the notes was held by Jamison, and it is not at all probable that Mrs. Davis paid any interest on the principal note. The sale under a deed of trust, and the contract in question, are dated on the same day, and must have been a part of the same transaction. Ferguson then held the original note for the sum of $10,000. Jamison held whatever balance was unpaid on the principal and interest notes. Under these facts the contract was

tiff to maintain a bill to enforce a specific
performance.” Veth v. Gierth, 92 Mo. 104,
4 S. W. 432. Without considering what the
effect of this rule might have been had this
been a mere contract for a sale of the land,
we do not think the same principle applies
to the right to enforce such a trust or equity
as is here declared. “Courts of equity, from
their inherent jurisdiction, assumed from the
beginning the exclusive control over trustees
in the discharge of their duties, whether af-
fecting personal or real estate.” Hill, Trus-
tees, 42 (66); 1 Story, Eq. 102, § 98. This
contract also, in its provision for tne se-
curity of a debt, stands more in the nature
of an equitable mortgage than that of a sim-

ple contraet of sale. The law provides no the land for the payment of debts of the esadequate remedy for a refusal to execute tate, and the sale was resisted by the assuch a trust as this, as it does in case of a signee of the contract. The administrator simple breach of contract of sale. Veth v. made no effort to enforce the lien or collect Gierth, supra; 2 Story, Eq. 769. The con- interest, so far as appears. The failure to tract itself seems to be perfectly fair. Jami- pay the interest after Ferguson's death may son had a substantial equity in the property have resulted from doubt or uncertainty as prior to the trustee's sale. He paid on the to the proper person to whom payments contract $2,400 in interest. In any view in should be made. It should be kept in mind which it may be taken, the case is clearly one also that the life tenant was living all this for equitable cognizance, and does not rest time, and held possession of the property. on the mere discretion of the court. Though None of the parties to the contract, their repthe contract is in the nature of a trust, yet resentatives or assigns, were receiving any Fergusori, the intestate, agrees to convey the benefit from it. At what time they would property upon a full payment of the debt have the possession and enjoyment depended and interest; and we think it a contract for upon the contingency of the life of the widthe conveyance of real estate, which the pro- ow of Jesse G. Lindell. There was, therebate court had jurisdiction to hear and de- fore, no such necessity for pressing for a deed termine. Rev. St. & 172.

that might have been required had the right 3. It is insisted that the contract is entirely of possession depended upon holding the leunilateral, and should not be enforced in eq- gal title. It is true that between the death uity for want of mutuality of obligation. We of Ferguson, in 1883, and the filing of the think there was no want of mutuality in the petition for specific performance, in 1891, contract, even on the assumption that its ab- there was a great increase in the value of the sence would have prevented a court of equi- land, and that circumstance should have ty from taking cognizance of the case. It was weight in determining the question of laches. signed by both parties, and Ferguson agreed "A purchaser should not be allowed to reto convey when the specified debt and princi- main passive, prepared to affirm a transacpal should be paid. While Jamison did not, tion if the concern should prosper, or to rein express terms, make himself' liable for the pudiate it if it should prove to his advanprincipal debt, Ferguson had the undoubted tage.” Bliss v. Prichard, supra. But this right to foreclose the equity upon default in does not appear to be a contract of such a payment of interest installments when due, speculative nature as to require the applicaor of the principal if not paid within a rea- tion of that rule. It does not appear tiat sonable time after demand. Each party had there was any prospective increase in the an adequate remedy under the contract, and value of the land when the contract was it was mutually binding upon each, and en- made. The increase in value came years aftforceable in equity. Mastin v. Grimes, 88 er. The delay in this case was much short Mo. 484.

of the statutes of limitation, but we see noth4. It is further said that the delay of Jami- ing in the circumstances that would make it son and his assignees in applying for relief, inequitable to grant the relief. The petitionand the length of time they have been in de er has at all times asserted his rights, and a fault in payment of interest, are sufficient to waiver or abandonment cannot be implied. bar the right of action. There is no doubt Judgment affirmed. All concur. of the principle that "a court of equity will refuse relief where the party has slept upon his rights for an unreasonable length of time, and this, too, without regard to the statutes

NICHOLDS 5. CRYSTAL PLATE-GLASS of limitations. Kroening v. Goehri, 112 Mo.

CO. 648. On the subject of laches no artificial rule has been or can be adopted. Each case

(Supreme Court of Missouri, Division No. 1.

June 19, 1894.) must be determined upon its own circumstances. Bliss v. Prichard, 67 Mo. 186. Taking MASTER AND SERVANT-CONTRIBUTORY NEGLIthe circumstances of this case, in connection

GENCE-DAMAGES. with the contract, we cannot say that the

1. Plaintiff was foreman of a blacksmith

shop attached to a large manufacturing plant. right to enforce the contract should be denied

He had to keep his own tools in repair, but on account of the delay in seeking its enforce- there was a master mechanic having supervi. ment, or in the default in making the re- sion of the machines and appliances. Plaintiff

procured a crane to lift heavy weights at his quired payments. In the first place, time is

forge, and, on the master mechanic's order, the not made of the essence of the contract, but,

machine-shop foreman gave him a chain that on the contrary, great latitude is given. The had been used for a sling chain. Plaintiff was payments of interest were made with regu- not directed to inspect the chain. He used it

18 months, without noticing any defects, and larity until about the time of the death of

then, in some especially heavy work, it broke, Ferguson. While there is no proof of tender and plaintiff was hurt. The defect was one to the administrator prior to 1890, it is mani- that would have been obvious to any competent test that the rights of Jamison's assignees charged with the duty of inspection, or should in

Held, that whether plaintiff was under the contract were not recognized by

reason have known of the defect, were ques. him. An attempt was made in 1886 to sell tions for the jury.

were

2. Whether plaintiff was using the chain machine shop, and Davis would give him a properly, it being conceded that the weight

chain. He saw Davis, who got a chain and could have been raised on trusses, was a question for the jury.

sheave, and threw them down on the black3. A servant assumes no risk of a latent smith-shop floor, saying to plaintiff: "Use defect in a crane chain, not discoverable in the

that, that is what we have used for a sling ordinary and proper use of the chain. 4. The bones of plaintiff's ankle

chain." The chain was composed of some broken. He was kept in four weeks, used

20 or more links, and worked in the sheave, crutches five or six months, and then iron braces to which there was attached a hook and and a cork-soled shoe. He had been earning swivel. The hook was then attached to an$75 to $90 a month, and lost eight months' time; then began at half pay; and at the time

other apparatus, which extended up to the of trial was earning about as much as before. traveler on the top of the boom of the crane. The strength of his leg was permanently im. The crane, thus rigged, was used for various paired. He had had no expenses for medical

kinds of work during the 18 months. On attendance. Helil, that he should be required to remit $3,666 of his verdict for $8,666.

the day of the accident, Mr. Prentice, fore5. The supreme court, having power to de man of the machine shop, directed plaintiff clare damages for personal injuries excessive, to make some dies for the trip hammer out may also determine the amount of the excess, and allow plaintiff to remit such amount.

of a steel shaft, which was 5 inches in diamBarclay, J., dissenting.

eter and some 18 feet long. The plaintiff

and his helpers rolled the shaft up to the Appeal from circuit court, Iron county;

forge, heated it, and cut it in two. They James D. Fox, Judge.

then began work on one-half, which was Action by James F. Nicholds against the

some six or eight feet long. One end rested Crystal Plate-Glass Company for damages

in the chain before described, and the helpfor personal injuries. Judgment for plain

ers carried the other end from the forge to tiff. Defendant appeals. Reversed nisi rem.

the anvil. At the time of the accident, one dam.

end rested in the chain, and the other on E. T. & C. B. Allen, for appellant. C. P. the anvil. The plaintiff occupied a position & J. D. Johnson, for respondent.

about midway between the anvil and the

chain, and was moving the shaft by the aid BLACK, C. J. This is a personal damage of a clamp, and at the same time gave the suit, in which the plaintiff obtained a ver- helpers directions where to apply their sledgdict and judgment, from which the defend- es. While in this position, one link of the ant appealed. The principal alleged errors chain broke, and the shaft fell upon the are: (1) There is no evidence of negligence plaintiff's ankle, inflicting the injuries of on the part of the defendant. (2) The plain- which he complains. The substantial avertiff was guilty of contributory negligence, ments of the amended petition are that the and the court should have so declared as a chain broke because the links had become matter of law. (3) The injury was caused "fractured, corroded, and impaired in by one of those risks which the plaintiff as- strength by use, exposure, and time," and, sumed. (4) Plaintiff ought not to recover, by reason thereof, the chain “was insuffibecause he was defendant's vice principal. cient in strength for the purposes for which (5) Errors in giving and refusing to give in- it was then and there being used;" that destructions. (6) The damages are excessive. fendant knew, or by the exercise of ordinary

The defendant is a corporation engaged in care might have known, the "fractured, corcarrying on extensive glass works. In con- roded, and impaired condition and insuffinection with the works, and as a part there- ciency in strength of said link, but, nevertheof, the defendant maintains a machine shop less, negligently failed to remove or repair and a blacksmith shop. At and prior to the the same, or replace it with a safe and sound time of the accident in question, there were link.” The answer denies negligence on the two forges in the blacksmith shop,-one in part of the defendant, and avers that plaincharge of Witchell, who had one helper; and tiff "was in charge and had full control over the other in charge of the plaintiff, who had the workshop in which he worked, and all three and sometimes four helpers. The dif- the tools and appliances thereof, including the ficult jobs of work were sent to the plain- crane and chain mentioned in said amended tiff. It was his business to dress the pot petition; that the plaintiff negligently selecttongs. They were heavy, and, it seems, he ed the said chain and crane for use in the complained that he could not handle them. work he was employed, and negligently used This was about 18 months before the acci- the same; that such negligence of the plaindent now in question. He asked the then tiff directly contributed to any injury susmaster mechanic to have an iron

tained by him." placed at his forge. The iron crane was not The evidence shows that the broken link furnished; but the master mechanic directed had an old corroded crack in it at the place the boss carpenter to erect a wooden one. where it broke, extending more than halfAfter the crane had been erected, the plain- way through the iron. Plaintiff testified that, tiff called on the master mechanic for a pair when Davis gave him the chain, which was of chain blocks, who said he could not go 19 months before the accident, it was in the to that expense. He at the same time told sheave, was greasy, and had been used by the plaintiff to go to Davis, foreman of the the smoothers, the grinders, and polishers;

crane

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