II. The preponderance of the competent HARDING v. ST. LOUIS UNION TRUST | evidence in the record shows the facts upon CO. (Nos. 19367, 19368.) which plaintiff's claims are based to be that on December 10, 1897, Roger E. Harding, (Supreme Court of Missouri, in Banc. Dec. 14, living in St. Louis, and about to make a trip to California to aid his daughter, who had 1918.) 1. WITNESSES 159(7)-TRANSACTIONS WITH married unhappily and was in dire distress, DECEDENT-REVOCATION OF GIFT. wrote to his son in New York, informing him of these facts and that he would begin the journey on December 18th, adding: In a son's suit against the executor of his father's estate to recover street railway bonds, testimony of a daughter as to explanations made by her father when, in her presence, he opened his safety deposit box, tore up the envelope indorsed as the property of the son containing the bonds and threw it away, held incompetent. 2. TRUSTS 59(1) - PERSONALTY-REVOCA- of two." TION. Executed trust created in personalty by express declaration and present conveyance to a definite beneficiary is irrevocable, though voluntary. teen instead of fourteen R. R. bonds in that "If anything occurs to me, you will find sixpackage I told you about in the safe deposit box; the two additional are Suburban; in all four Suburban, Nos. 96, 176, 179, 181, instead This letter also inclosed a list of the bonds and their estimated value at $17,005. On December 17th Roger E. Harding, still in St. Louis, wrote plaintiff, stating that he 3. TRUSTS 44(3)-TRUST IN PERSONALTY- did not know what his address would be in EVIDENCE. Trust in personalty created by express declaration and present conveyance to a definite beneficiary can be enforced only on evidence so clear, full, and demonstrative as to banish any reasonable doubt as to the existence of every essential element. Los Angeles, but to write him care of his daughter, concluding: "The safe deposit box is the same. I have made no change. No. 1233, same as the number of your residence. Before I went to Europe I told you about the 14 bonds, and had you take down the numbers. There are now 16 4. TRUSTS 59(1)-TRUSTS IN PERSONALTY bonds in the package (all I had); inclose copy of indorsement on package. These bonds are -REVOCATION. now worth $17,000 or more." Where decedent, about to travel, wrote son that, if anything occurred to him, he had placed bonds in an envelope in a safety deposit box indorsed as the property of the son, there was no present irrevocable creation of a trust in favor of the son. 5. TRUSTS FORCEMENT. The indorsement referred to in these two letters is, to wit: (Copy.) "St. Louis, December, 1897. "This package, containing valuables, is the 13-VOLUNTARY TRUST-EN- property of William H. Harding, of 1233 Dean St., Brooklyn, N. Y., and I hereby direct my administrator or executor to deliver it to him Roger E. Harding." unopened. "Witnesses: Equity does not enforce a mere executory agreement for a trust which is wholly voluntary. Appeal from St. Louis City Court; Leo S. Rassieur, Judge. Suit by William H. Harding against the St. Louis Union Trust Company, executor of the estate of Roger E. Harding, deceased. From judgment for defendant, plaintiff appeals. Affirmed. Grant & Grant, of St. Louis, for appellant. E. T. & C. B. Allen, of St. Louis, for respondent. BOND, C. J. I. These are suits by one of the children of Roger E. Harding against his executor to recover certain street railway bonds and also the amount collected by the executor upon certain coupons attached to said bonds. The answer was a general denial, coupled with a plea of the statutes of limitations of five and ten years. Issue was taken by reply. The defendant had judgment, and the plaintiff duly appealed. "George E. Harding. "Heavy envelope, sealed with five seals." [1] After the daughter of Roger E. Harding, who lived in California, had been granted a divorce, she came to St. Louis with her father, and he took her to the safe deposit box and opened it in her presence and took out the sealed envelope containing the 16 bonds and put them back loosely in the deposit box, tore up the envelope indorsed as above, and threw it in the wastebasket, making certain explanations to his daughter why he did so, which we exclude as incompetent. The trust officer who opened the safe deposit box in order to make an inventory after the death of Roger E. Harding states that it did not contain an envelope sealed and indorsed as described in the memorandum sent to plaintiff, and that he thought the 16 bonds were lying loose in the box. Roger E. Harding gave plaintiff a house in Brooklyn, $12,500, and $7,000 in bonds for For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Unless the foregoing facts established a completely executed trust in the 16 bonds claimed by plaintiff, this suit must fail. the education of a son of plaintiff and grand- | property was purely temporary and intended son of the deceased, and also made plaintiff only to take effect in case any future mishap, beneficiary of a $5,000 life policy, and by like death, should overtake him before he the terms of his will excluded plaintiff from should return to St. Louis. No more enlighthis estate, stating that he had received all ening view of the language used by Roger E. that he was entitled to. Harding in his letters to plaintiff could be afforded than his own actions in dealing with the property therein referred to. He construed his letters and declarations as their language justified; for by the terms of these writings and in the light of circumstances surrounding the parties they only evidenced an executory agreement to create a future trust, for a wholly undisclosed purpose, which trust agreement should fail upon the nonhappening of the contingency upon which its completion depended. It being obvious, therefore, that the evidence relied on by plaintiff did not afford any proof whatever of an executed and completed trust, but only tended to show an executory agreement for a trust of some kind, to arise upon a future contingency, the conclusion is unavoidable that plaintiff was entitled to no recovery in the present case. [2] III. That an executed trust may be validly created in personal property by express declaration and present conveyance of such property to a definite beneficiary, and that, when the trust has been thus completed, it is irrevocable, though voluntary, is the settled law of Missouri and elsewhere. Northrip v. Burge, 255 Mo. loc. cit. 654, par. 2, and cases cited page 674, par. 5, 164 S. W. 584; Bank v. McKenna, 168 Mo. App. loc. cit. 257, 153 S. W. 521; In re Estate of Soulard. 141 Mo. loc. cit. 660, 43 S. W. 617. [3] It is equally elementary that such a trust can be enforced only upon evidence so clear, full, and demonstrative as to banish any reasonable doubt from the mind of the chancellor as to the existence of every element essential to the establishment of a com plete express trust in personal property. Northrip v. Burge, 255 Mo. loc. cit. 655, and cases cited loc. cit. 668, 164 S. W. 584. [4] It is obvious that the plaintiff's entire case rests upon the terms of three documents, two letters and the copy of an indorsement on the package under five seals. If these stood alone, aside from the negative and explanatory evidence for the defendant, no trust could be decreed, because they show by express terms that it was the purpose of Roger E. Harding to create a trust, not in præsenti, but only upon the condition that some mishap, like death, might overtake him on a journey about to be undertaken to California to assist a married daughter. That nothing further was intended by the language of the writings of Roger E. Harding, when read in pari materia, is not only apparent from the contingent terms of the declaration contained in them, but from the further fact that immediately after his daughter had secured a release from her unfortunate state he brought her to St. Louis, and in her presence destroyed the superscription which had been placed upon the package of bonds to provide for their future delivery to plaintiff upon the happening of the contingency mentioned in his executory agreement. This contingency not occurring, Roger E. Harding opened the package, took the 16 bonds and placed them loosely in his safe deposit box, and destroyed the envelope, with its superscription, which had contained them. This manifestation of the construction given by Roger E. Harding to the terms of his letters of December 7th and 17th is convincing, as, indeed, the language itself fairly imports that his agreement as to this personal [5] The authorities are uniform (many of them cited in the briefs of the parties) that equity never enforces a mere executory agreement for a trust, which, like the present, is wholly voluntary. If the trust had been com pletely executed, as prescribed by law, then the question of consideration would be of no moment; but where, as here, no such trust was shown by the language relied upon to establish it, it necessarily follows that there could be no decree of enforcement. The ob stacle to any relief in this case arose upon the infirmity of the written agreements relied upon to support the action. No executed and completed trust having been shown by any evidence whatever, it becomes wholly unnecessary to speculate as to what use, or for whose contingent benefit, Roger E. Harding intended to devote the 16 bonds in case his executory agreement had ripened into a fully consummated trust. As bearing on his intention not to create an irrevocable trust, it is also significant that he did not by any language or act convey any present equitable title to plaintiff nor deprive himself of the full use and control of the bonds in question, which the record shows he exercised during his life, and without question by the plaintiff for a period of 17 years after the date of the letters and indorsement relied upon by him to support his claim. That these suits present matters of purely equitable cognizance is manifest from what is shown in the record, and, indeed, is frankly confessed in the brief prepared for plaintiff (appellant) where it is stated that, failing the sufficiency of evidence to show "a declaration of trust in which the deceased, Roger E. Harding, was the trustee and donor," this suit must fail. State ex rel. v. Evans, 176 Mo. loc. cit. 317, 318, 75 S. W. 914; Shelton v. Harrison, 182 Mo. App. | tion in arrest, which was overruled, has aploc. cit. 412, 413, 167 S. W. 634, 10 R. C. L. pealed. p. 349, § 99; 1 Pomeroy, Equity (3d Ed.) § The court below found that the defendant 151; 2 Story, Equity Jurisprudence (14th had voluntarily entered its appearance in Ed.) §§ 1300 to 1303, inclusive; Bispham's that court, and, defendant having refused Principles of Equity (9th Ed.) § 49. Holding, as we do, that the plaintiff has misconceived the legal effect of the writings relied on to support his theory, and hence has necessarily failed in adducing proof of any equitable title in him to the property in dispute, it follows that the judgment in favor of the defendant is manifestly correct, and will be affirmed. It is so ordered. to defend, further judgment went against it. The court, in passing upon the motion to quash, gave it as his opinion that the case of Advertising Co. v. Castleman, 265 Mo. 345, 177 S. W. 597, settles the law in this state that an appeal from the justice court by a defendant waives the question of defective summons and amounts to a general appearance of defendant in the circuit court. Section 7568, R. S. 1909, provides that an appeal from the justice court to the circuit WALKER, FARIS, and WILLIAMS, JJ., court operates "as an entrance of appear concur. WOODSON, J., not sitting. ance." Section 7579, R. S. 1909, provides that upon such an appeal "the court shall be possessed of the cause, and shall proceed to hear, try and determine the same anew, without regarding any error, defect or other imperfection in the original summons or CUDAHY PACKING CO. v. CHICAGO & N. the service thereof." (Kansas City Court of Appeals. Missouri. Dec. 2, 1918.) JUSTICES OF THE PEACE EFFECT AS APPEARANCE. 161(3)—APPEAL Under Rev. St. 1909, §§ 7568, 7579, appeal from justice court by defendant waives the question of defective summons, there raised on special appearance, and amounts to a general appearance by defendant in the circuit court. Appeal from Circuit Court, Jackson County; Clarence A. Burney, Judge. "Not to be officially published." Action by the Cudahy Packing Company against the Chicago & Northwestern Railway Company. There was judgment for plaintiff in the circuit court, on appeal by defendant from a justice of the peace, and defendant appeals. Affirmed, and certified to Supreme Court. George Kingsley, of Kansas City, for appellant. New, Miller, Camack & Winger, P. E. Reeder, and John Taylor, all of Kansas City, for respondent. BLAND, J. This suit originated before a justice of the peace. After the return of the constable defendant appeared in the justice court and moved to quash the summons on the ground that defendant had not been served with process according to law. This motion was overruled, and, defendant making no defense, judgment went for plaintiff, and defendant appealed the case. In the circuit court another motion to quash the summons on the same grounds was filed, which was overruled, and defendant, after filing a mo The following cases hold that an appeal from the justice amounts to a general appearance in the circuit court. Ser v. Bobst, 8 Mo. 506; Boulware v. Railroad Co., 79 Mo. 494; Gant v. Railway Co., 79 Mo. 502; Fitterling v. Railway Co., 79 Mo. 504; Witting V. Railway Co., 101 Mo. 631, 14 S. W. 743, 10 L. R. A. 602, 20 Am. St. Rep. 636; Rice v. Railway Co., 30 Mo. App. 110; Carter v. Wamack, 64 Mo. App. 338; Meyer v. Phoenix Ins. Co., 92 Mo. App. 392; Powell v. Railway Co. (Mo. App.) 178 S. W. 212. The following cases hold to the contrary: Brandenburger v. Easley, 78 Mo. 659; Smith v. Simpson, 80 Mo. 634; Fare v. Gunter, 82 Mo. 522; Meyer v. Phoenix Ins. Co., 184 Mo. 481, 83 S. W. 479; Trimble v. Elkin, 88 Mo. App. 229; State ex rel. Fairbanks v. Ayers, 116 Mo. App. 90, 91 S. W. 398; Bente v. Typewriter Co., 116 Mo. App. 77, 91 S. W. 397; Handlan-Buck Mfg. Co. v. Chester, P. & Ste. G. R. Co., 167 Mo. App. 683, 151 S. W. 171; and Swezea v. Jenkins, 186 Mo. App. 428, 171 S. W. 618. The St. Louis Court of Appeals, in Powell ing Co. v. Castleman, supra, as holding that v. Railway Co., supra, construed Advertisthe taking of an appeal amounts to a general entry of appearance in the circuit court, and we think that the St. Louis Court of Appeals was clearly right in its conclusions to that effect. The St. Louis Court of Appeals in the Powell Case exhaustively discusses the history of the controversy, and clearly shows that the statutes supra can mean nothing else than that such an appeal amounts to a general appearance. The Powell Case overrules the case of Handlan, etc., Co. v. Chester, etc., Co., supra, decided by the same court, but it certified the case to the Supreme Court as being in conflict For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes with the following Kansas City Court of Collector of Revenue of the City of Nevada, We understand that the Powell Case in the Supreme Court was dismissed by the voluntary act of the parties, depriving that court of the opportunity to express itself in no uncertain terms on the point in controversy. We are of the opinion, following the cases of Advertising Co. v. Castleman, supra, and Powell v. Railway Co., supra, that this defendant entered its general appearance in the circuit court by taking the appeal from the justice court, and the cases of Trimble v. Elkins, supra, State ex rel. Fairbanks v. Ayers, supra, and Bente v. Typewriter Co., supra, all decided by this court, are overruled. The judgment of the lower court is affirmed, but the case must be certified to the Supreme Court as being in conflict with the opinion of the Springfield Court of Appeals in Swezea v. Jenkins, supra, and it is so ordered. All concur. STATE ex rel. and to Use of LANCASTER, (Kansas City Court of Appeals. Missouri. 1. MUNICIPAL CORPORATIONS 657(5)-VACATION OF STREETS JURISDICTION. Rev. St. 1909, § 9258, vesting exclusively in city legislative authorities the vacation of streets and alleys, does not deprive county court of the jurisdiction of vacating a block, given it by section 9505. 2. MUNICIPAL CORPORATIONS 972(3)-TAXES - ASSESSMENT - DESCRIPTION OF PROP ERTY. See, also, 273 Mo. 122, 199 S. W. 953. J. N. Coil, of Nevada, Mo., for appellant. W. M. Bowker, of Nevada, Mo., for respondent. TRIMBLE, J. A suit for taxes alleged to be due the city of Nevada on "all of block 21 of Prewitt's addition to the city of Nevada" for the years 1911, 1912, and 1913, amounting in the aggregate to $31.86. Judgment was for defendant. An appeal was taken by plaintiff to the Supreme Court, but the same was transferred to this court. The assessment, petition, and tax bill described the land as set forth above. The defense is that there is no valid or accurate description of the property, so as to support the levy and enforcement of the taxes. [1] Some eight years before any of the attempted assessments involved herein were made, a proceeding was had in the county court resulting in an order and judgment vacating block 21 above referred to, and a certified copy of said judgment was filed in recorder's office May 31, 1904. This proceeding was had under what is now section 9505, R. S. 1909. If this judgment was effectual to vacate the said block, then at the time the assessments were made there was no "block 21 of Prewitt's addition," but the land was the same as if it had never been platted. There is no attempt to deny that this proceeding and order were had and made; nor is the attack upon the validity of the judgment of vacation based upon any of the various steps taken in said proceeding. The contention of plaintiff is that said county court had no jurisdiction to vacate said property, then in the city, but that the power to vacate same was vested exclusively in the city legislative authorities by virtue of what is now section 9258, R. S. 1909. We do not think so. Where city block was vacated by county court, under Rev. St. 1909, § 9505, the assess-The latter applies rather to streets and alleys; ment of the block, by describing it as block 21, was invalid, but should have been made by describing land by its proper legal description, which came back into effect when vacation was made. 3. MUNICIPAL CORPORATIONS 980(1)-TAXES-ACTION TO ENFORCE COLLECTION. In order to support a proceeding to enforce by judgment and sale the collection of taxes on real estate, the assessment thereof must be by a valid and accurate description. while section 9505 applies to additions and parts thereof, and the proceeding under each is different. Section 9258 does not deprive the county court of the jurisdiction conferred by section 9505, nor does it attempt to do so. [2, 3] It is true, in a sense, that the identity of "block 21" was not destroyed by the vacation, but the legality of that description of the property was destroyed. The ground itself, of course, remained, and no doubt a surveyor could, by referring to the record of Appeal from Circuit Court, Vernon Coun- the vacated plat, have located its boundaries; ty; B. G. Thurman, Judge. "Not to be officially published." Action by the State of Missouri, on the relation and to the use of R. F. Lancaster, but so, also, could he have determined the lines of the land by its proper legal description, which came back into effect when the vacation was made, and, since it was in this status at the time the assessments were For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Action by the J. C. Lysle Milling Company, Hugh W. Sharp, doing business as John W. Sharp & Son. Judgment for plaintiff, and defendants appeal. Affirmed. made, they should have been made by the proper and valid description then existing. a corporation, against John W. Sharp and In order to support a proceeding to enforce by judgment and sale the collection of taxes on real estate, the assessment thereof, which is the foundational prerequisite to the validity of the taxes, must be by a valid and accurate description. We think the judgment should be affirmed. It is so ordered. All concur. Thos. J. Tydings, of Moberly, for appellants. Willard P. Cave, of Moberly, for respondent. TRIMBLE, J. This is a suit for damages for breach of a contract to purchase flour. J. C. LYSLE MILLING CO. v. SHARP et al. Plaintiff is a milling corporation located at (No. 13024.) (Kansas City Court of Appeals. Missouri. Dec. 2, 1918.) Leavenworth, Kan., and defendants compose a firm at Moberly, Mo. Plaintiff, through its traveling salesman, took an order, signed at Moberly by defend 1. SALES 32 WHAT CONSTITUTES CON- ants, on August 2, 1917, calling for the ship TRACT. Where defendant signed an order for goods subject to plaintiff's approval, and plaintiff confirmed and accepted the offer by letter, there was a completed contract beyond defendant's recall, in the absence of any failure to perform, or remiss act, emanating from plaintiff. 2. SALES 23(4)—Offer TO PURCHASE-AC CEPTANCE. Where defendant signed an order for flour stating, "Ship to Moberly, Missouri," and "All goods f. o. b. mill, freight allowed to destination," a letter conurming and accepting such order, stating that the flour was to be "delivered to Moberly," did not change the terms of the offer. 3. SALES ment to Moberly on September 30, 1917, of the goods therein specified. The order conviz. "No. of Bbls.," "Size P'kage," "Brand," tained appropriate columns thus headed, "Price," and in each column under its par ticular head the items appropriate thereto were stated; that is to say, taking the columns from left to right in the order in which first line of the list of articles read “105," their headings are above enumerated, the "48," "Gilt Edge," "13.20," and the second line read, "105," "24," "Gilt Edge," "13.30." The order stated on its face, "All goods f. o. b. mill, freight allowed to destination;" also that the order was "subject to confirmation" 23(4)-OFFER TO PURCHASE-AC- at Leavenworth. CEPTANCE ON A BASIS." Where defendant signed an order, subject to confirmation, for a certain amount of flour at $13.20 per barrel in packages of 48 pounds, and a like amount at $13.30 in packages of 24 pounds, a letter, accepting such order, stating, "a car of Gilt Edge flour on a basis of $13.20 for Gilt Edge in 48's," did not vary from the order; the phrase "on a basis" meaning, according to trade usage, that the basis and minimum price was $13.20 per barrel in packages of 48 pounds each, but that 10 cents additional is required to pay for the cost of extra sacks where the packages contain 24 pounds each. [Ed. Note. For other definitions, see Words and Phrases, Second Series, Basis.] 4. EVIDENCE 457 CONTRACTS OF PUR CHASE-PAROL EVIDENCE. Parol evidence is admissible to explain what terms used in contracts of purchase mean in general trade usage. 5. WAR 4-WAR MEASURES-EFFECT ON CONTRACTS OF SALE. The war measures embodied in the rules of the Milling Division of the United States Food Administration did not invalidate prior contracts to purchase flour. The order was there received, and on August 4, 1917, was confirmed by a letter from plaintiff to defendants, which said: "We are in receipt of the order you very kindly gave our Mr. Madge for a car of Gilt Edge flour for September shipment on a basis of $13.20 for Gilt Edge 48's delivered Moberly. We are very much pleased to receive this order," etc. On September 10, 1917, defendants notified plaintiff they would not take the flour, and refused to permit it to be shipped to them. The evidence showed that, whenever plaintiff contracted to sell a car of flour, it on the same day bought enough wheat to make the flour thus sold, and that after the contract in suit was breached by defendants the plaintiff sold said flour elsewhere, on defendants' account, for the best price obtainable, and the suit was for the loss sustained; that is, the difference between what would have been received for the flour, had the contract been performed, and what plaintiff did receive for it. The case was tried before the court withAppeal from Circuit Court, Randolph Coun- out a jury. No finding of facts was asked ty; A. W. Walker, Judge. "Not to be officially published." or made, and no declarations of law were given and none were asked, except an instruc For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |