Blanke v. Miller

• Decision Date: 12 April 1954
• Docket Number: No. 43567,No. 2,43567,2
• Citation: 364 Mo. 797,268 S.W.2d 809
• Parties: BLANKE et al. v. MILLER et al
• Court: Missouri Supreme Court

Page 809

268 S.W.2d 809

364 Mo. 797

BLANKE et al. v. MILLER et al.

No. 43567.

Supreme Court of Missouri, Division No. 2.

April 12, 1954.

Motion for Rehearing to Modify Opinion or to Transfer to

Court en Banc Denied June 14, 1954.

Allen H. Whittington, St. Louis, for appellants Miller.

Oliver F. Erbs and Donald E. Lasater, St. Louis, for appellant Fred C. Schuepfer Inv. & Realty Co.

Henry Ebenhoh and Walter S. Berkman, St. Louis, for respondents.

BARRETT, Commissioner.

This is an action to rescind a real estate transaction, the sale and purchase of four lots, to cancel notes and a deed of trust executed in part payment of the purchase price, and to recover the partial payments actually made upon the stipulated purchase price. The action in rescission is by the purchasers, Robert and Irma Blanke, against the vendors, Sophia C. and Frank E. Miller, and a real estate broker, the Fred C. Schuepfer Investment & Realty Company. The trial court found, as the plaintiffs claimed, that the broker, as agent for the vendors, misrepresented the location of the lots, that the plaintiffs purchased the lots in reliance upon the misrepresentation and, accordingly, the court decreed that the Blankes reconvey the lots to the Millers, cancelled the notes and deed of trust, and entered a judgment against both the vendors and their broker for the payments made on the purchase price, $2,890.85, together with interest in the sum of $115.60. Upon the Millers' cross-claim against the broker, the court entered judgment in their favor in the sum of $500 for commissions paid and attorney's fees. The defendant vendors and the broker have perfected separate appeals from the judgment and decree, the broker claiming that the court erred in rescinding the transaction and in entering judgment against it in favor of their principals, the vendors claiming that the broker was the agent of both parties and that there was no evidence to support a judgment against them. The vendors also assert that the $500 award to them is grossly inadeauate and that they are entitled to a decree against the broker indemnifying them for the full amount of their loss occasioned by the broker's wrongdoing.

Mr. and Mrs. Miller owned lots 4, 5, 8, 9, 10 and 11 Boulevard Frontage in St. Louis County. On February 23, 1948, they entered into a written listing contract with the Fred C. Schuepfer Investment & Realty Company, authorizing the sale of the lots for the price of $2,000 for each lot. Thereafter Schuepfer's employees, Mrs. Beckmann and Mr. Hogenmiller, accompanied by Mrs. Miller, who had then furnished the company with a plat of the lots, inspected the lots and placed 'for sale' signs upon lots 8, 9, 10 and 11. According to them, there were no signs north of Florence Street in the addition. Lot 12, owned by some other person, was north of Florence Street and Schuepfer had that lot for sale, but they did not place any signs on that lot. In July 1948 Robert Blanke, a truck driver for the Overland Iron & Metal Company, saw the Schuepfer 'for sale' signs on lots facing on Lindbergh. He was interested in a level plot of ground on a highway for the purpose of developing a service station and a truck-stop restaurant, and, upon seeing the signs, called the company office and talked to Mrs. Beckmann. Mrs. Beckmann denies it, but Robert said that she called in a few days and they met at the property and she pointed out its location to him, and told him that 'it consisted of four lots, three lots forty feet, one lot 35 feet, that was supposed to be a corner lot.' He says that they walked over the ground where the 'for sale' signs were and they saw the stakes 'except the stakes for the north corner' which they were unable to locate. He identified a photograph, his exhibit one, as a picture of the lots Mrs. Beckmann pointed out to him. (During the greater part of the trial the parties tried this case, and particularly the indentity of the lots represented and sold, with reference to two photographs. The Blankes' exhibit one which they claim is a photograph of the lots shown by the agents as the Millers' lots and which they claim they thought they were purchasing, and defendants' exhibit six which is a photograph of the lots actually owned by the Millers, upon which the agents say they placed their signs, and were in fact the lots shown and sold to the Blankes.) Robert said, 'I think the property was a little hazy in Mrs. Beckmann's mind,' and in a few days Mrs. Beckmann came by the Blankes' home with her associate, Mr. Hogenmiller, and they again visited the lots.

On this occasion, according to both Robert and Irma, Mr. Hogenmiller definitely pointed out the lots where the 'for sale' signs were located, north of what was to become Florence Street, as the four lots owned by the Millers. It was then that he was informed that the price of the four lots was $8,000. In a few days, August 4, 1948, they came by his home again and he informed them that the price was too high and they suggested that he propose a price and they would submit it to the owners. He offered to pay $7,000 for the four lots and accordingly they drew up and he and his wife signed a contract to purchase and made a down payment of $350. They later returned the contract signed by Mr. and Mrs. Miller and on September 20th the transaction was 'closed,' the Blankes made an additional payment of $861.45, and executed installment notes totalling $5,900, secured by a deed of trust on the land to the Millers. Thereafter Robert and Irma made twenty-seven payments of $62.20. Robert claims that he did not discover that he had been sold the wrong lots until December 1950, before receiving a deed to the lots. He was driving along Lindbergh one day and saw a man constructing a road across what he though was one of his lots and, upon challenging the man, learned for the first time that his lots were not the ones represented by Mrs. Beckmann and Mr. Hogenmiller. He immediately called the Schuepfer office and was advised that Mrs. Beckmann and Mr. Hogenmiller were no longer employed by the company and that he should get an admission from Mrs. Beckmann that she had made a mistake.

Proceeding with this advice, he caused his friend, Whiteman, who did not testify, to pose as a prospective purchaser, and called Mrs. Beckmann and told her that he had a purchaser and asked her to handle the sale for him. Mrs. Beckmann asked Mrs. Miller to accompany her and they met the Blankes and Whiteman at the lots. And again, he said, she 'proceeded to show him the same property she showed me * * * The property on that picture, and I talked to Mrs. Miller and Mrs. Miller said Mrs. Beckmann is showing that man the wrong property, my property is down here.' Mrs. Beckmann, nevertheless, insisted that Mrs. Miller was wrong and did not know the location of her property. Mrs. Miller says that Mrs. Beckmann asked her to go along 'so she wouldn't make any mistake in knowing where the property was, because it had been 27 months since she had been out there * * * and if she didn't rember I went along to show her.' Her version of the crux of this episode was that, for the first time, she met the Blankes and 'they introduced Mrs. Beckmann to Mr. Whiteman as a prospective buyer and she was talking to Mr. Whiteman and I was...