Abbey v. Altimeter

• Decision Date: 13 June 1924
• Docket Number: No. 18252.,18252.
• Citation: 215 Mo. App. 1,263 S.W. 471
• Parties: ABBEY v. ALTHEIMER.
• Court: Missouri Court of Appeals

263 S.W. 471

215 Mo. App. 1

ABBEY v. ALTHEIMER.

No. 18252.

St. Louis Court of Appeals. Missouri.

June 13, 1924.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

Action by Adolph Abbey against Eugene J. Altheimer. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

M. C. Early and Ivon Lodge, both of St. Louis, for appellant.

Adolph Abbey, and Abbott, Fauntleroy, Cullen & Edwards, all of St. Louis, for respondent.

BECKER, J.

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 $1,039, with interest. From the resulting judgment of $1,189.63 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 $6,000 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 $1,500 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 $2,400, 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.

The instruction on the measure of damages given by the court at the request of plaintiff below directed the jury that, if under the instructions and the evidence they found a verdict for plaintiff, they should assess the amount of plaintiff's recovery

"(1) At such sum as you may find from the evidence plaintiff paid to defendant as a commission, together with 6 per cent. thereon from the date when it was paid.

"(2) You should find for him in the further sum equal to the sum of money, if any, you may find and believe from the evidence Altheimer received from William H. Leahy out of the 66,185.26 which Abbey paid on the closing of the deal, together with 6 per cent. interest thereon from the time when the defendant received them."

The evidence adduced at the trial, and it is abundant and not controverted, conclusively shows that the defendant received $900 from the plaintiff and a check in the sum of $1,039 from the plaintiff as his commission, yet, though each of these sums which the defendant received as a commission from the parties to the exchange of properties is uncontroverted, and though it is these said two sums which are specifically set up in plaintiff's petition as the damages sought thereunder to be recovered from the defendant, and further though the instruction on the measure of damages required the jury, if they found for the plaintiff, to assess the amount of plaintiff's recovery at an aggregate sum made up of each of these two items of commission, the jury, though they found for plaintiff, returned a verdict only in the sum of $1,039, with interest, being the exact amount which it is conceded defendant received as part commission out of the cash paid by the plaintiff on the closing of the deal, and does not include the $900 item paid defendant by plaintiff.

In light of this situation defendant urges that the verdict is not responsive to the issues raised by the pleadings and the proof, and is directly in the teeth of the instruction of the court on the measure of damages, and that, consequently, no matter what caused the jury to arrive at this erroneous verdict, it is contrary to law, and the trial court should not have allowed it to stand. The point is well taken.

Conceding that plaintiff adduced evidence tending to prove the allegations of his petition, there is assuredly no evidence which supports the verdict, "for the verdict is not responsive to the issues nor to any testimony in the case, nor can it be upheld upon any theory of fact or law asserted or claimed by either party to the action, but on the contrary is flagrantly in the teeth of the true law and of the instructions given to the jury by the trial court" Cole v. Armour, 154 Mo. 333, loc. cit. 353, 55 S. W. 476, 482. And in the Cole Case, supra, our Supreme Court further ruled that the fact that the party recovering the judgment makes no complaint of the size of the verdict does not make the verdict responsive to any issue or theory of the case.

The sole issue in this case as tried below was the question of false representations vel non. The damages concededly under the...