Edelen ex rel. Mudd v. Strong

Rombauer, P. J., delivered the opinion of the court. It is difficult to determine from the pleadings and evidence in this case, the theory of law upon which the cause was tried. The petition seems to indicate an — 291 — action of trover, but the evidence and the judgment of the court rendered thereon, an action for money had and received. Aside of these irregularities however, we are at a loss to see how the verdict and judgment can well be sustained under the uncontroverted evidence, and the law applicable thereto, on any theory. In August, 1885, the defendant Strong made a lease to James Edelen, Alonzo Edelen and Norman Edelen jointly of a tract of land containing one hundred and forty acres more or less, for the period of one year, for a cash rent of eight hundred and forty dollars, payable on or before August 6, 1886, or .upon sale of the crop, for which amount the lessees executed their joint and several promissory note. The lease contained a provision againt assignment or underletting without consent of the lessor, and the following clause: “It is further hereby agreed by the said parties of the second part (the lessees), that they will cultivate in wheat, all of said lands that are suitable for wheat, * '* * that they will thresh the wheat grown as soon as it can be got ready to thresh, said wheat to be threshed upon said land, and thereupon said party of the first part, shall have and take possession and control of said wheat and shall ship the same to Cole Brothers Commission Company in St. Louis, Missouri, to be sold, and out of the proceeds thereof the freight and expenses attending the sale thereof, shall first be deducted and next the amount of said note for rent above described shall be paid, said Strong to be charged with so much of the freight to St. Louis, as is paid on the amount of wheat necessarily taken to pay said note, all the rest of the net proceeds of said wheat, and all of the crops raised upon said lands shall be the property of the parties of the second.part.” It is however agreed that all the expenses of threshing and getting the said wheat to the Mississippi river shall be borne by said parties of the second part. — 292 — In December, 1885, Alonzo Edelen, one of the lessees, executed and delivered his promissory note for two hundred and ninety dollars for value to O. S. Lamothe and James R. Mudd, payable four months after date to their order, and executed a deed of trust to P. A. Edelen the plaintiff, as trustee for Mudd and Lamothe to secure the payment of said note', which deed purported to convey fifty acres of growing wheat situate and growing on the land of George P. Strong (the land above described), the said land being now cultivated by the grantor. This deed of trust was not recorded until April, 1886. The note secured thereby was a renewal of a former indebtedness, it was, prior to the institution of this suit, transferred to a bank in St. Charles for value, and was held by said bank at said date, being wholly unpaid. All these facts appeared by plaintiff’s own evidence. It further appeared by the xmcontro verted evidence, that there was never any several letting by Strong to Alonzo Edelen of any part of the farm. That Strong had no notice constructive or otherwise of this mortgage prior to its recording. That prior to such recording he had entered into an additional arrangement with his tenants, by which he furnished them seed wheat and they all agreed that the cost of the said wheat should also be taken out of the proceeds of the wheat. In addition to this Alonzo Edelen agreed that the cost of a horse which Strong had sold to him might be thus taken out. It further appeared that when the wheat was threshed it was shipped in the name of Strong, partly to Alton, Illinois, and partly to St. Louis, Missouri, and that after it was finally sold and disposed of there was an accounting between Alonzo Edelen and Strong, as well as between the other two lessees and Strong, upon which it appeared that a balance of forty-seven cents was due to Alonzo Edelen, and a balance of $152.17 to — 293 — the other two lessees, which Strong paid. Alonzo Edelen took about forty bags of the wheat and sold it himself. The settlements were had prior to the institution of this, suit. It does not appear that either of the tenants claim that the settlements were not just and fair, and there is no pretense in the evidence, that either P. A. Edelen the trustee, or either of the beneficiaries ever notified Strong that they claimed any equitable lien on Alonzo Edelen’s share of the net proceeds of the wheat prior to such settlements. It affirmatively appears that this suit was instituted without the trustee’s knowledge and consent, and that at the date of its institution the usees did not hold the note, and had paid nothing on account thereof to the bank who was then the legal owner. The petition in this case which purports to be filed by P. A. Edelen, states, “that Alonzo Edelen did by his deed of trust,, grant, bargain, sell and convey to the plaintiff as trustee, for the benefit of the usees, fifty acres of wheat, growing on the lands of George P. Strong, and that George P. Strong in July, 1886, took possession of and sold the property hereinabove described, and has all the time refused to pay the plaintiffs, the legal owners of the said property, the money proceeds of the sale of the same said. (sie) property, but has wrongfully converted the same to his own use, and wrongfully withholds the same from plaintiff, in the sum and to the amount of three hundred dollars for which amount plaintiff prays judgment.” The answer was first a general denial. It then set up affirmatively that all the interest A. A. Edelen ever held in the lands of defendant was held by him under a lease made by the defendant to A. A. Edelen, James L. Edelen and Norman Edelen jointly, that neither of said lessees had power or authority, without defendant’s consent to assign any part of said lease, and that such consent was never given. That a large part of the — 294 — wheat never came to defendant’s hands, and of that part which came to his hands he disposed in conformity with the terms of the lease, accounted to his tenants for the proceeds, and paid the balance over to them, without previous notice of plaintiff’s claim. The defendant upon the trial objected to all the evidence, because the petition stated no cause of action. At the close of the evidence he demurred to it because it proved no cause of action under the pleadings. These objections were overruled. The plaintiff introduced evidence as above stated, and the court rendered judgment in his favor for $241.60, as would seem from the instructions given, upon a theory of stating the equities between the beneficiaries in the deed of trust, and the defendant. The defendant moved for new trial and in arrest, and upon his motions being overruled, brings the case here by appeal. The bare statement of the case suffices to indicate the only disposition that can be made of the judgment. It is evident that under the conceded facts, Alonzo Edelen had not as against the defendant, any such separate interest, in any specific part of the wheat sown, or in any particular part of the wheat harvested, as to subject it to the charge of a lien valid against the defendant. The defendant on the other hand had, under the conceded facts, the unquestioned right to ship and sell the wheat, accounting to his tenants for the net proceeds. How under these circumstances the shipping and selling of the wheat by the defendant could ever amount to a conversion, is inconceivable. Nor is the plaintiff’s case helped by the fact, that there was some evidence, which, other conditions being admitted, might possibly have entitled him to maintain an action for money had and received against Strong, as was done in Glasgow v. Ridgley, 11 Mo. 34, as such evidence was wholly irrelevant under the issues. — 295 — The statute provides (R. S., sec. 3702): “When the allegation of the cause of action, to which the proof is directed is unproved, not in some particular or particulars only, but in its entire scope of meaning, it shall not be deemed a case of variance but a failure of proof.” A party cannot, even under the liberal provisions of our code, set up one cause of action in his petition, and upon the trial recover upon another and wholly different one. Ensworth v. Barton, 60 Mo. 511; Clements v. Yeates, 69 Mo. 623, 626 and cas. cit. The judgment therefore must be reversed. As the conceded facts show that at the date or the institution of the suit, neither the plaintiff nor the beneficiary he represents had any cause of action against the defendant, the cause will not be remanded. All the judges concurring, the judgment is reversed.