Adkison v. Hannah, 55369
| Decision Date | 10 January 1972 |
| Docket Number | No. 55369,No. 1,55369,1 |
| Citation | 475 S.W.2d 39 |
| Parties | Archie D. ADKISON et ux., Appellants, v. Joseph W. HANNAH et al., Respondents |
| Court | Missouri Supreme Court |
Ward A. Dorsey, John G. Brannon, R. Brian Hall, North Kansas City, for appellants.
Bruce G. Heavner, Clifford N. Jarrett, Heavner, Jarrett & Kimball, Kansas City, for respondents.
WELBORN, Commissioner.
Action by mortgagees on redemption bond given by mortgagor upon foreclosure of deed of trust. Petition sought recovery of face amount of bond, $8,000, by Count I, and an additional $5,432.42, under Count II, for waste. Defendants counterclaimed, alleging that plaintiffs had conspired to destroy the business conducted on the mortgaged property in order to make it impossible for defendants to pay the mortgage so that plaintiffs might thereby regain the property. Counterclaim sought $50,000 actual damages and $100,000 punitive damages. Jury trial resulted in judgment of $8,000 in favor of plaintiffs on Count I of their petition and in favor of defendants on Count II of plaintiffs' petition. On defendants' counterclaim, verdict was for defendants for $10,000 actual and $15,000 punitive damages. Plaintiffs appeal.
Prior to May 17, 1961, plaintiffs-appellants, Archie D. Adkison and his wife, Mildred I. Adkison, were owners of a 100-acre tract of land in Platte County. They had a residence and operated a public swimming pool and two public fee fishing lakes on the property. On May 17, 1961, the Adkisons sold the property to William and Mary Jo Dunlap. The Adkisons received as down payment for the property a house valued at $12,500 and two notes for $3,500 each. They also received a note for $57,900, secured by a deed of trust on the property sold. The note was payable in monthly installments of $400. The Dunlaps fell behind in their payments on the note and in March, 1963, they sold the property to the defendants-respondents, Joseph W. Hannah and his wife, Cleo C. Hannah. The Hannahs gave the Dunlaps property valued at $12,000, and assumed the mortgage held by the Adkisons.
The Hannahs became delinquent in their payments on the note and on November 24, 1965, the appellants notified them that, because of their defaults, the entire amount of the note had been declared due and payable. When the default continued, steps were undertaken to foreclose the deed of trust. A foreclosure sale was held on January 11, 1966. The Adkisons were the only bidders at the foreclosure and bid the property in for $27,500, which was what Archie Adkison figured the property was worth.
The Hannahs, upon filing notice of redemption and an $8,000 redemption bond, remained in possession of the property for one year. Upon their vacating the property, the Adkisons took possession of it and began this action on the redemption bond.
The petition alleged obligations involving interest, taxes, insurance and foreclosure sale expenses, covered by the redemption bond, amounting to $7,197.42. The petition also itemized numerous items of waste, totalling $6,235. Major items of waste alleged were removal of 33 walnut trees valued at $3,300 and damage to tile floors of $1,500. At the trial, plaintiffs' evidence showed items, other than waste, totalling $8,735.53, covered by the redemption bond. The two counts of plaintiffs' petition were submitted to the jury separately. The first count was for the interest, taxes, foreclosure expenses and waste and the second for waste alone. The verdict on Count I was for plaintiffs for $9,240 and on Count II for defendants. Judgment was entered for plaintiffs for $8,000 on Count I, the amount sued for on that count.
On this appeal, appellants contend that the trial court should have granted them a new trial on Count II of their petition because the defendants admitted acts of waste during the redemption period. Specifically they say that Joseph Hannah admitted selling $320 worth of walnut trees and that he had removed carpeting (which he had a right to do) which had been nailed to the floor.
Hannah's testimony does not show that plaintiffs are entitled to a new trial on Count II of their petition. Hannah admitted selling $320 worth of walnut trees. He did not admit that the damage caused by the sale of such trees was $3,300, as plaintiffs claimed. His testimony was that removal of the walnut trees was part of a clearing project which enhanced the value of the land. Hannah did not admit that the removal of the rugs damaged the floor. He admitted only that he removed them.
The issue of damages remained for the jury. The jury apparently did find that plaintiffs suffered damages for waste, in view of their verdict on Count I for $9,240. Plaintiffs, however, took no steps in the trial court to have the verdict corrected and made no objection to the entry of the $8,000 judgment on such verdict. No grounds for relief have been presented in this court.
On this appeal from the verdict and judgment in favor of defendants on their counterclaim, plaintiffs have advanced numerous grounds for reversal. They assert that there was no submissible case of a conspiracy to injure defendants' business.
The defendants' evidence, if believed by the jury, would have shown that the plaintiffs instigated harassing inspections by health authorities of the swimming pool facilities after the Hannahs purchased the property and that they told potential patrons that the pool had been closed by health authorities; that they told prospective patrons that the fishing lake had not been stocked; that they destroyed or induced others to destroy roadside signs showing the public the way to the property that they caused roofing tacks to be spread in the road, causing flat tires and discouraging persons from going to the property; that they harassed the defendants with repeated late night telephone calls. The plaintiffs denied that they engaged in such activities, but viewing defendants' evidence in its most favorable light, there was sufficient evidence to support the submission that the plaintiffs conspired to damage the defendants' business. The circumstances are sufficient to show, contrary to appellants' contention, the agreement or understanding between the appellants essential for a conspiracy. Contour Chair Lounge Co. v. Aljean Furniture Mfg. Co., Mo.App., 403 S.W.2d 922, 926--927(1--4), (5--7); Sadler v. Schmidt, Mo.Sup., 263 S.W.2d 35, 40(10, 11).
In concluding that a submissible case was made, we have considered the deposition testimony of Norma Adkison offered by respondents. Appellants objected that there was not a sufficient showing of a situation, under § 492.400, RSMo 1969, V.A.M.S., Civil Rule 57.29, V.A.M.R., permitting the reading of the deposition. Plaintiffs had taken the deposition of the witness for discovery purposes on March 27, 1969. The witness stated that at that time she lived in North Kansas City. Her deposition testimony showed that the witness had moved frequently during the preceding three years, following her divorce from the Adkisons' son. She had lived in Jackson and Platte Counties in the meantime and had spent some time in the State of Kansas.
Her deposition was offered on the grounds that at the time of the trial, in October, 1969, she had gone to Kansas, and therefore her deposition was admissible under subparagraph (1) of § 492.400, subd. 2, supra, authorizing the use of a deposition upon a showing that '* * * the witness resides or is gone out of the state; * * *.' The evidence relied upon to show such fact was testimony of the defendants that for four weeks prior to the trial, they got in touch with the witness by telephone at a 'Kansas number.'
In the circumstances of this case, we cannot say that the trial court's permission to use the deposition was an abuse of its discretion. Myers v. Karchmer, Mo.Sup., 313 S.W.2d 697, 701(1--3). The frequency of changes of residence by the witness would justify the reception of her deposition...
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