Abbott v. Miller et al.

• Decision Date: 06 April 1931
• Docket Number: No. 17109.,17109.
• Citation: 41 S.W.2d 898
• Parties: AMELIA J. ABBOTT, RESPONDENT, v. CHARLES A. MILLER ET AL., APPELLANTS.
• Court: Missouri Court of Appeals

41 S.W.2d 898

AMELIA J. ABBOTT, RESPONDENT, v. CHARLES A. MILLER ET AL., APPELLANTS.

No. 17109.

Kansas City Court of Appeals. Missouri.

April 6, 1931.

Appeal from Circuit Court of Jackson County. — Hon. Ben Terte, Judge.

REVERSED AND REMANDED.

C.W. Prince and James N. Beery for respondent.

Henry S. Conrad, L.E. Durham and Hale Houts for appellants.

CAMPBELL, C.

Plaintiff brought suit against Gregg Realty Company, its salesman Charles A. Miller, Kelly-Johnson Realty Company, and its salesman Herbert Kelly, for damages alleged to have been sustained as the result of false representations made during the course of a real estate transaction. The case was dismissed as to the last-named company.

Defendant Kelly was summoned but did not defend. Plaintiff obtained judgment for both actual and punitive damages against all of the defendants who were served with process. From that judgment defendants Gregg Realty Company and Miller have appealed.

In July, 1924, the plaintiff owned an equity in an apartment building in Kansas City, and a Mrs. Luikhart owned an equity in a residence property in said city.

An exchange of the properties was proposed and effected. Throughout the negotiations Mrs. Luikhart was represented by the defendant Miller and the plaintiff was represented by the defendant Kelly.

It is averred in plaintiff's petition that Kelly falsely represented to her that the residence property had a reasonable market value of $12,000; that he falsely represented that the debt secured by the first deed of trust on that property would become due in the year 1928, and that the debt secured by the second deed of trust in the sum of $1600 (afterwards reduced to $1500 in order to correct an error), was payable at the rate of $50 per month; that he would obtain an additional loan of $3600 on the residence property; that he falsely represented that Mrs. Luikhart was willing to make an even exchange of her equity in said property for plaintiff's equity in the apartment, and concealed from plaintiff the fact that Mrs. Luikhart was to give a note in the sum of $1500 and to secure the same by a deed of trust on the apartment property.

It is further alleged that Kelly knew all of the representations so made by him were false and that he made them for the purpose of misleading and cheating the plaintiff; that plaintiff believed said representations were true, and was induced thereby to consummate the exchange; that in the perpetration of the fraud Kelly was acting in conspiracy with his co-defendants; that the $1500 note, executed by Mrs. Luikhart at the time the exchange was consummated, was converted by the defendants.

The evidence in plaintiff's behalf is that Kelly proposed the trade; that thereafter, and before the contract for exchange was made plaintiff and her son, an experienced business man, viewed the property for which she traded; that Kelly prepared a contract for the exchange of the equities which was read to and signed by plaintiff; that Kelly read it to her but no mention was made of the fact that it provided Mrs. Luikhart was to give a note; that Mrs. Luikhart did not sign that instrument; that Miller prepared another contract which, among other things, provided for the execution of the $1500 note or the payment of $600 cash at the option of Mrs. Luikhart, and which was signed by Mrs. Luikhart and by Kelly on behalf of plaintiff; that plaintiff did not see that contract until the exchange was completed; that deeds necessary to perform the contract were made at which time Mrs. Luikhart executed the $1500 note and secured the same by a third deed of trust upon the property conveyed to her; that the note, at the time of its making, did not contain the name of a payee; that Miller afterwards wrote in the name of Frank D. Sweeney as payee, and then wrote the name of said Sweeney on the back of the note; that Kelly and Miller endeavored to sell the note, failed to do so, and Kelly released the deed of trust securing it; that plaintiff did not know the note was to be made or that it had been made until two months thereafter; that Mrs. Luikhart brought suit against all of the defendants in this case to recover damages for false representations made to her; that while that suit was pending she requested Mr. Gregg, of the Gregg Realty Company, to give the $1500 note to her. He replied, "why should I give you the note when there is a law suit pending against us?"

At the trial plaintiff introduced the note in evidence. How it came into her possession is not shown.

There is no evidence that Miller or anyone else connected with the Gregg Realty Company made any statements or representations to plaintiff, or that Kelly or any other person connected with his company made any representations or statements to Mrs. Luikhart.

It is therefore evident that plaintiff was not entitled to recover against either of the appealing defendants unless the evidence reveals that Kelly was guilty of actionable fraud, and that one or both of said defendants conspired with him in the perpetration thereof.

The representations of value made by Kelly were, in the circumstances shown, merely the expression of an opinion and not actionable. Moreover, plaintiff and her son, a man of experience, and who assisted her in the trade, viewed the property and knew or had opportunity to know its reasonable value.

The representations made by Kelly as to the due date of the encumbrances were false, and he knew them to be false. The contract signed by him on behalf of plaintiff so shows. Such representations are statements of fact as distinguished from an opinion, were material, and if relied and acted upon by plaintiff, to her injury, are actionable.

The statement of Kelly that the trade was an even one was shown to be false.

The failure of Kelly, if he did fail to reveal to his employer that Mrs. Luikhart had executed the $1500 note, was both a legal and a moral fraud. There is evidence that he converted the note, and it follows that if he did convert it, any one who aided or assisted him in the conversion thereof is liable to plaintiff for its value.

The statement of Kelly that he would obtain a loan for $3600, the evidence considered, is not actionable. A note for that amount was made by plaintiff, and thereafter her son, as well as Kelly, endeavored to sell it. It is not shown that the failure to sell the note damaged the plaintiff. There is neither pleading nor proof that the misrepresentation of Kelly as to the maturity of the debts secured by the deeds of trust resulted in injury to plaintiff. Fraudulent representations, without injury, are not actionable. [Epps v. Duckett, 284 Mo. 132, 142, 223 S.W. 572; Harleson v. Tyler, 281 Mo. 383, 399, 219 S.W. 908.]

It is clear the only recovery sought by plaintiff is for the loss of the benefits of her bargain, which is alleged to be the difference between the actual value of the residence property and the represented value thereof in the sum of $4863, and for the value of the $1500 note. In seeking to recover the value of the note, plaintiff has affirmed the act of her agent Kelly in obtaining it. Recovery, therefore, can be allowed only upon the theory that she was the owner thereof and that the defendants converted it to their own use. It could not be claimed that...