Dunnaway v. O'Reilly , 1903 Mo. App. LEXIS 637 ( 1903 )

BLAND, P. J.

(after stating the facts as above).— The merits of this controversy on the evidence are clearly with the plaintiff and she should prevail, unless there is some rule of law< that intervenes to defeat her. It is contended by defendant that Thomas A. Ferrenbach was a necessary party defendant. This alleged defect does not appear on the face of the petition and the answer was a general denial-; therefore, the defect of a necessary party defendant was waived. R. S. 1899, sec. 602.

It is insisted by the defendant that he is a mere trustee and as such had no power to extend the time of payment without the consent of the cestui que trust. As a naked proposition of law, this contention is correct, but the weight of the evidence is that defendant ,was not only trustee, but was likewise secretly the bene-ficiary in the deed of trust. Dunnaway testified, that when he applied to defendant for the loan, he told him he had had trouble in making loans through real estate agencies and that he did not want to deal with the defendant as a real estate agent or as the agent of some one else who was to furnish the money, and that defendant told him he had his own money to make the loan. Defendant denies this and says no such conversation took place. If this was all the evidence on this feature of' the case there would be no hesitancy in saying-that it evenly balanced and the burden would be on plaintiff to turn the scale. But the undisputed evidence is that defendant had exclusive control of the' whole matter from start to finish, had possession of the notes ready for delivery to Dunnaway whenever he was ready to pay one of -them. The failure of defendant to call Ferrenbach, who resided in St. Louis, as a witness, is also a circumstance not to be lost sight of.

Our conclusion is that the judgment should be reversed and the cause remanded with directions to the circuit court to take an accounting and ascertain the balance due as principal and interest on the loan and give plaintiff a reasonable time in which to pay such balance before a sale under the deed of trust may be made. The judgment is accordingly reversed and the cause remanded.

Rayburn and Goode, JJ., concur.