The appellee's theory at the trial of the case was that appellant's settlement with the trustee was a cancellation of all his rights in the trust. I agree that this is not correct; that his reservation of the right to follow the trust property into the hands of the appellee was preserved.
Now in this court appellee asserts that the case was one for an accounting, and that the burden was upon appellant to determine the amount due him and that he failed to do so. *Page 408
In buying the trust property the appellee itself became a trustee ex maleficio, Elliott v. Landis Machine Co., 236 Mo. 546,139 S.W. 356; Whitcomb v. Carpenter, 134 Iowa 227, 111 N.W. 825, 10 L.R.A., N.S., 928, and as such trustee and as defendant pleading payment, the burden of proof was upon it. If we assume that the undenied allegation in the appellant's amended complaint to the effect that approximately $18,600 had been paid upon the note was binding as an allegation of fact, it will not change the result. This allegation was unnecessary to an accounting, but we will assume that it was proof that this sum of money was actually paid prior to the filing of this suit in 1934. The interest of appellant in the trust note was $3,684.58, and the interests of other beneficiaries aggregated $19,951.34. It may be assumed that, as the trustee paid the other beneficiaries in full, such payments were made as the money was received. We know that none of it was paid to appellant. The payments were not enough to pay off the other beneficiaries, so that interest on the $18,600 ceased so far as appellee was concerned.
Appellant's interest on his part of the trust notes would have continued until payment was made. Appellant received nothing before his settlement with the trustee. Whether this money had just been collected, or had been previously collected; whether it included any interest or only principal, is not disclosed by the evidence.
While the burden was upon appellee to prove payment after the appellant had established the original debt, it introduced no testimony. The appellant attempted to prove the items paid and the dates of payment, but every question asked upon the subject met appellant's objections, some of which were sustained and some overruled. I think appellant cannot complain that the proof of the amount due was not exact.
The appellant should have had judgment for the balance due on his interest in the trust note after allowing a credit of $3,500 on the date paid. This is a matter of calculation to be made by the district court upon remand. We are not authorized to make this finding of fact.
The cause should be remanded with instructions to calculate the amount due appellant after allowing the credit of $3,500 as of the date paid, and enter its decree accordingly. *Page 409