Abbey v. Altheimer
| Decision Date | 13 June 1924 |
| Parties | ADOLPH ABBEY, Respondent, v. EUGENE J. ALTHEIMER, Appellant. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. Frank Landwehr, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
M. C Early, and Ivon Lodge for appellant.
(1) (a) It was error for the court to refuse to give the peremptory instruction of the defendant in the nature of a demurrer to the evidence offered at the close of plaintiff's case because the plaintiff wholly failed to substantiate any of the allegations of fraud contained in his petition and established by his own evidence that he did not suffer any damages whatever by reason of the trade in question but, on the other hand, he realized a substantial profit therefrom. (b) The plaintiff's own confessed fraud in trading his own property in at a grossly inflated value and then conniving to bring about the foreclosure of this property under the first deed of trust thereby cutting off the equity of William H. Leahy, was such conduct as precluded his right to any recovery. (2) The court erred in refusing to give defendant's peremptory instruction after all the evidence had been offered. (3) Instruction No. 2, which was given at the request of the plaintiff, contains reversible error in that: (a) This instruction assumes to cover the entire case and directs a verdict upon the finding of certain facts and it fails to require the jury to find certain other facts which would be essential in order to entitle the plaintiff to recover (Bixler v. Wagster, 256 S.W. 520; Jones v. Nicholas, 216 S.W. 962, 280 Mo. 653). (b) This instruction was misleading and unfair to the defendant in that it assumes as true facts that are in dispute (Reel v. Consolidated Products Co., 236 S.W. 43). (4) Instruction No. 3, given at the request of the plaintiff, on the measure of damages, is erroneous in that it directs the jury to find for the plaintiff not only for the amount of commission which he paid the defendant, but also for the commission which he received from Leahy. There is no rule of law by which the plaintiff was entitled to recover the commission which the defendant received from the other side since, under the law and evidence in the case, he knew about this fact before the deal was consummated and consented thereto. (Groneweg v. Estes, 144 Mo.App. 418; Arthur v. Porter, 118 S.W. 611 [Tex. Civ. App.]; Gilliland v. Ellison, 137 S.W. 168 [Tex. Civ. App.]; Cannell v. Smith, 142 Pa. St. 25). (5) The verdict of the jury was against the evidence, the weight of the evidence and against the law under the evidence and was right in the teeth of the instruction given by the court on the measure of damages and showed such a complete disregard by the jury of the instructions of the court as to conclusively establish the fact that the defendant did not have a fair trial (Wehringer v. Ahlemeyer, 23 Mo.App. 277; Weisels-Gerhart Real Estate Company v. Pemberton Investment Company, 150 Mo.App. 626; Witty v Saling, 171 Mo.App. 574; Morris v. Railroad, 136 Mo.App. 393; Bliss v. Wolcott, 40 Mont. 493; Baunn v. Halperin, 169 N.Y.S. 489, l. c. 490; Ferguson v. Chuck, 185 N.Y.S. 800; Chamberlin v Chamberlin, 185 N.Y.S. 99; Stetson v. Stindt, 279 F. 209; Abbott's Civil Jury Trial, page 751; Connelly v. Illinois Central Railroad, 120 Mo App. 652; Emerson v. Santa Clara, 40 Cal. 543; Champ Spring Co. v. Roth Tool Co., 103 Mo.App. 103, l. c. 109; Shoemaker v. Jackson, 204 S.W. 962; Martin v. Barnett, 208 S.W. 278). (6) Instruction No. 6 was erroneous in that it told the jury that it was immaterial that the plaintiff had traded his property on Easton at an inflated value. This was decidedly erroneous because it had a direct bearing on whether or not the plaintiff suffered any damages. (7) It was error to permit counsel for the plaintiff all through his cross-examination of the defendant to insinuate that the defendant was crooked and to talk in an insulting manner about the fact that he had represented both parties in the transaction. (8) The defendant should have been allowed to introduce proof as to the value of the Easton avenue property because this had a direct bearing first as to whether or not the plaintiff had suffered any damages, and, second, as to the honesty and integrity of the plaintiff and whether or not he himself was guilty of fraud. (9) It was error to permit counsel for plaintiff to make in his address to the jury remarks which were highly prejudicial on the subject of so-called double dealing since this was not an issue in the case and had merely been pleaded as matter in inducement and it was error for the court after the defendant's counsel had objected to the same to fail to direct the jury to disregard such highly prejudicial remarks (State v. Connor, 252 S.W. 713; Fathman v. Tumulty, 34 Mo.App. 236; Wells v. Wells, 144 Mo. 198, 38 Cyc. 1494; Haynes v. Town of Trenton, 108 Mo. 123; Mahner v. Linck, 70 Mo.App. 380, 1 Thompson on Trial (2 Ed.), pars. 955, 958).
Adolph Abbey and Abbott, Fauntleroy, Cullen & Edwards for respondent.
This is an action by a principal against his agent for alleged breach of duty in effecting an exchange of certain parcels of real estate. It is in effect an action for money had and received on account of fraud and deceit. The jury's verdict found in favor of plaintiff, and assessed his damages at the sum of $ 1039, with interest. From the resulting judgment of $ 1189.63 the defendant appeals.
The essential allegations of plaintiff's petition, which the evidence adduced on behalf of the plaintiff, if believed, tended to prove, are to the effect that the plaintiff was the owner of certain improved real estate situated on Easton avenue in the city of St. Louis; that he employed the defendant to act as his agent in negotiating an exchange of said property for certain other improved property situated on Lindell boulevard in said city; that the defendant concealed from the plaintiff that he was acting for or was to receive compensation from the owner of the Lindell boulevard property, and induced the plaintiff to enter into a written agreement with one Russell T. Padfield for the exchange of said properties, under the terms of which the plaintiff was to pay Padfield $ 6000 in cash and convey to him the said Easton avenue property, subject to certain incumbrances, and Padfield in turn was to execute and deliver back to plaintiff a series of notes aggregating $ 15,500, secured by a second deed of trust on the said Easton avenue property; that shortly after said contract was signed plaintiff learned that the defendant was to receive a commission ostensibly from Padfield, and that plaintiff thereupon notified defendant that he would not be bound by the contract; that thereupon defendant assured plaintiff that he had used his best efforts in the matter and was in a position to and had secured the lowest possible price on the said Lindell boulevard property; that said Padfield was in fact the true owner of said property, and was financially able to pay all obligations growing out of the transaction, including taxes, interest on the first deed of trust, as well as the notes (secured by a second deed of trust on the Easton avenue property) which the said Padfield was to execute and deliver to plaintiff in the event the exchange was consummated, as and when the same would fall due; that defendant further represented that the Lindell boulevard property was worth $ 60,000 and could not be obtained for less; that the said Lindell boulevard property had bona-fide deeds of trust against it aggregating $ 41,000; that the defendant, however, concealed from the plaintiff the fact that one of the deeds of trust on the Lindell boulevard property contained an assignment of rents; that each of these said representations made by the defendant was false, and known at the time to the defendant to be false, but that the plaintiff, relying upon the truth of said representations, was induced to and did complete the exchange of the said properties; that in truth and fact the Lindell boulevard property was worth not to exceed $ 50,000; that the said Padfield was in fact only a straw man and without any financial responsibility whatsoever, and that parties other than Padfield were the real parties in interest; that Padfield failed to pay the taxes upon the Easton avenue property, failed to pay the interest notes on the first deed of trust on the Easton avenue property when the same fell due, and that by reason thereof the Easton avenue property was later sold under a foreclosure sale; that the defendant received $ 1500 from Padfield and the further sum of $ 900 from the plaintiff as commission for making the exchange of properties. The petition concludes with a prayer for a judgment of $ 2400, the aggregate of the two above-mentioned sums alleged to have been received by the defendant as his commission for making the deal. Defendant's answer was a general denial.
As indicated above, the testimony adduced on behalf of plaintiff, if believed, tended to support the allegations of his petition, whereas the testimony for the defendant was in direct conflict with that of the plaintiff, and, if believed, would have warranted a verdict and judgment for said defendant.
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