Ratican v. Union Depot Co.

BOND, J. This is a suit against the Union Depot Company, a corporation, and the heirs and distributees of Charles [532] Slevin. The substance of the petition is, that plaintiff was a tenant at will of certain real estate belonging to Charles Sleyin, then alive, with a right to remove certain improvements which he had erected on the premises; that the Union Depot Company brought an action to condemn said land, whereupon plaintiff agreed with the attorney of record in said proceedings of said Charles Slevin that the assessment of the commissioners should embrace also the value of his improvements, which and the sum allowed for the land itself should be paid over to Charles Slevin, whereupon he should pay plaintiff that part which had been allowed for his improvements; that the commissioners on this account added $1,050 to their award; that Charles Slevin died; his administratrix and heirs became parties to the condemnation suit, consented to the sustention of the exceptions of the Union Depot Company to the report of the commissioners and to the withdrawal of the sum paid in thereunder and the dismissal of the suit; that the heirs afterwards sold and conveyed the property to the Union Depot Company for a larger sum that had been awarded by the commissioners, all of which it is alleged was done without plaintiff’s knowledge and to prevent him from receiving the amount apportioned to his improvements in the award of the commissioners. The court sustained a general demurrer to the petition on behalf of the Union Depot Company. The other defendants answered. After a trial by the court, waiving a jury, there was a verdict and judgment for all the defendants, from which this appeal is taken. The evidence in this case is exactly the same as that decided on the trial of Wonderly v. Martin, reported in 69 Mo. App. 84 (the transcript in that case being bodily inserted in the transcript in this), with the addition of a written instrument purporting to sell to Charles Slevin the improvements of plaintiff and a written addendum thereto reciting that “for the consideration of such conveyance plaintiff was to receive from Charles Slevin whatever sum may be awarded to him for the above improvements.” [533] There is no evidence that Charles Slevin knew anything whatever of said proceeding to condemn his property, nor of the contract made by his attorney of record with the plaintiff. The evidence shows that the attorney in question -was employed without the knowledge of said Charles Slevin, by his man of affairs, and that when Charles Slevin beeáme apprised of the employment he ordered it to be discontinued; that Charles Slevin was a man eighty years old, feeble in body and mind, irascible, and for some reason displeased with his attorney. The evidence shows that plaintiff was not a party to the condemnation suit. Upon these facts we have heretofore decided that the estate of Charles Slevin was not chargeable for a demand similar to the plaintiff’s, upon the well settled law governing the authority of an attorney to bind his client. The rule on that subject is that such authority only extends to acts and agreements necessary to the control and prosecution of the suit or defense and effecting the remedy only. It does not empower an attorney to go beyond this and saddle his client with a trust in favor of persons not parties to the litigation. Wonderly v. Martin, 69 Mo. App. loc. cit. 86. As the estate which fell to the defendant heirs was not chargeable with a lien nor trust in favor of plaintiff, and as no valid obligation against their ancestor was created by the unauthorized contract of his attorney, it follows that there can be no recovery against the defendant heirs, except upon the theory of a personal undertaking on their part to pay the plaintiff the sum sued for supported by a sufficient consideration. There is not in this record any evidence whatever sustaining the view that such a liability was incurred by the defendant heirs, and the finding of the circuit coutt in their favor was unquestionably correct. [535] Estoppel. [533] As to the defendant the Union Depot Company, the correctness of the rulings of the trial court sustaining its general demurrer to plaintiff’s petition, must be determined by the. [534] legal effect of the merments in the petition, and not by the evidence adduced on the trial of the issues between plaintiff and the other defendants. The petition alleges that the Union Depot Company took possession of Oharles Slevin’s land and plaintiff’s improvements thereon after having paid into court the award of the commissioners, “knowing the terms of the said agreement by which the said improvements had' been transferred to said Oharles Slevin, and rebgvng upon saicl trmisfer to Oharles SlevinThe italics are ours. The petition further states that by agreement between the representatives of Oharles Slevin after his death and the Union Depot Company the condemnation suit was dismissed, the amount paid into court was returned, and the property in question was thereafter purchased by the Union Depot Company from the title holders, the representatives of Charles Slevin. The petition does not state whether or not the possession of the premises which had been taken by the Union Depot Company during the progress of the condemnation suit was surrendered after it had been dismissed. It is said that the agreement for the dismissal was not communicated to plaintiff, who was not apa/rty to the suit. Under these allegations there was no error in the ruling of the learned circuit judge that the petition stated no cause of action against the Union Depot Company. According to the petition the Union Depot Company knew plaintiff had conveyed his property to Charles Slevin, in order that he (Slevin) might receive the price therefor and that the title thereto should pass from him to the Union Depot Company. It is not charged in the petition that the Union Depot Company had any knowledge whatever of any infirmity in the agreement which was made by plaintiff with the attorney of Charles Slevin which relieved him (Slevin) or his estate from paying the consideration for which plaintiff conveyed his property to Charles Slevin. On the contrary the petition distinctly and expressly states that the Union Depot Company relied upon the fact that Charles Slevin, the owner [535] of the fee, was also the owner of the improvements thereon when it paid into court for his benefit the award of the commissioners. Plaintiff’s own act in transferring his property to Charles Slevin induced the Hnion Company to regard him as owner. Had it thereafter taken a conveyance of the whole property from Charles Slevin, paying him therefor, there is-no theory of law nor morals upon which plaintiff could have recovered from the Hnion Depot Company any part of the price which it might have paid to Charles Slevin. The fact, that Slevin died and the title which plaintiff -put in him descended to his heirs, can not affect the principle which would have protected the Hnion Depot Company if it had bought from him, which is that plaintiff is conclusively estopped to demand, as against the transfer of his property to Slevin, anything from the purchaser from such transferee, who is alleged to have been cognizant of such transfer and to have relied thereon in taking possession of the property and to have been neither a party to the agreement between plaintiff and the attorney of Slevin on the latter’s behalf, nor aware of any defect in such contract. Privity. Our conclusion is that hnder the statement contained in plaintiff’s petition the Hnion Depot Company is not liable to him-on the theory of money had and received (as insisted by his learned counsel), nor upon the theory that it was in privity with the contract claimed by plaintiff to have been made with Slevin, through his attorney, for the pay- , . . « ment to plaintiff of a certain sum in consideration of the sale of his property to Charles Slevin, and that there was no error in the. ruling of the circuit court in sustaining the demurrer of the Hnion Depot Company, nor in entering judgment for the other defendants upon the facts disclosed on the trial of the issues as to them. • The judgment of that coru’t in favor of all the defendants is affirmjed. Judge Bland concurs; Judge Biggs concurs in the opinion “as to the heirs, but dissents as to the Hnion Depot Company.”