Briece v. Bosso

• Decision Date: 03 February 1942
• Docket Number: 25683
• Citation: 158 S.W.2d 463
• Parties: LEO T. BRIECE and MARY B. BRIECE, Respondents, v. LOUIS A. BOSSO and ARMAND R. BOSSO, Appellants
• Court: Missouri Court of Appeals

158 S.W.2d 463

LEO T. BRIECE and MARY B. BRIECE, Respondents, v. LOUIS A. BOSSO and ARMAND R. BOSSO, Appellants

No. 25683

Court of Appeals of Missouri, St. Louis

February 3, 1942

Appeal from Circuit Court, City of St. Louis. Hon. Robert J Kirkwood, Judge.

REVERSED AND REMANDED.

SUTTON COMMISSIONER. Hughes, P.J., and McCullen and Anderson, JJ concur.

OPINION

Sutton, COMMISSIONER.

This is an action brought by plaintiffs, who are husband and wife, to recover of defendants damages for fraudulent misrepresentation of the value of Lot 14 in Block 12 of Pennsylvania Park No 1, in St. Louis County, transferred to plaintiffs in exchange for Lot 9 of Van Horn's Subdivision at Crescent, in St. Louis County.

The trial, with a jury, resulted in a verdict in favor of plaintiffs for $ 2400 as actual damages and $ 2600 as punitive damages. Judgment was accordingly given for $ 5,000. Defendants appeal.

The deal transferring the properties was consummated on August 28, 1929. This action was commenced on May 19, 1938.

Defendants assign errors here for the refusal of their instructions in the nature of demurrers to the evidence. They put their assignments on the ground that the action is barred by the statute of limitations, section 862, R. S. 1929, Mo. St. Ann., sec. 862, p. 1143, which provides that an action for relief on the ground of fraud shall be barred in five years after the cause of action shall have accrued, the cause of action in such case to be deemed not to have accrued until the discovery by the aggrieved party, at any time within ten years, of the facts constituting the fraud.

The evidence shows that plaintiffs employed as their agents the defendants to sell the Crescent property. Defendants were at that time realtors doing business in the City of St. Louis as partners under the name of Louis A. Bosso and Son.

The Pennsylvania Park lot was unimproved. The Crescent property consisted of about one-fourth of an acre of ground and a five-room house. The house was built for the purpose of a clubhouse. Plaintiff Leo T. Briece testified that the property was worth $ 2,000 in 1929. He built the house in 1926. The property was located near the Meramec River. It was shown by witnesses testifying on behalf of defendants that the cost of the labor and materials for building the house new in 1929 would have been about $ 1200. Plaintiff Leo T. Briece also, testified that, though he originally employed defendants to sell the Crescent property, he afterwards told them he would trade the property for a building lot near St. Louis, that is, a lot suitable to build a house on, and told them to keep their eyes open for such a lot. Defendants purchased the Pennsylvania Park lot from Frank Rees. It was conveyed to Armand R. Bossy and Helen I. Bosso by deed dated July 25, 1929, and filed for record July 27, 1929, the consideration as expressed in the deed being $ 100 and other valuable considerations.

Armand R. Bosso and Helen I. Bosso, his wife, conveyed the lot to George Lawson by deed dated July 26, 1929, and filed for record July 27, 1929, the consideration as expressed in the deed being $ 1.

George Lawson by deed of trust dated July 26, 1929, and filed for record July 27, 1929, conveyed the lot to Adolph Bosso as trustee for Armand R. Bosso and Helen I. Bosso, wherein it is recited that said George Lawson had executed and delivered to said Armand R. Bosso and Helen I. Bosso three promissory notes, aggregating $ 1500, given "for part purchase money."

The amount paid by defendants for the Pennsylvania Park lot was $ 1150. This was evidenced by the written contract for the purchase of the lot made on July 18, 1929, seven days prior to the execution of the deed therefor. The contract was made in the name of Louis A. Bosso as the purchaser. On the same day that the contract was executed Louis A. Bosso wrote Leo T. Briece as follows:

"If you have not done, anything with what you have lined up. I accidentally ran across deal which might work out better than what you have shown.

"This party has a 55 ft. lot on the East side of McCready Avenue just South of Bruno Avenue. McCready is one block West of the Big Bend Road in Pennsylvania Park. The street is made and sewers are in.

"He has this lot priced at $ 3000.00 which is just a little bit less than $ 55.00 per foot. I think I can get him to allow $ 1500.00 for your club house and he will take back a 1st Deed of Trust for $ 1500.00, 3 years at 6%.

This is not an offer but can be probably worked out along those lines. When you get to town take a look at this lot. You can't miss it because it is just back of a house that is on the corner of Big Bend and Bruno. Lays nice and level and all in all looks like an equitable trade may be put through. Let me hear from you as soon as possible after you have seen the lot. If you do not quite understand this letter, get in touch with me."

This letter was signed, "Louis A. Bosso and Son by Louis A. Bosso."

Leo T. Briece testified that pursuant to Bosso's request he looked at the lot and then went, to Bosso's office where the trade suggested by Bosso was discussed; that Bosso advised him that the lot was worth $ 50 a front foot based on a fifty-five foot front, and he decided to make the trade; that he did not then know about the values of St. Louis County property, and that he relied solely on Bosso's advice as to the value of their Pennsylvania Park lot in making the trade.

On July 26, 1929, Louis A. Basso wrote Leo T. Briece as follows:

"I an enclosing you Contracts for Exchange for the Lot on. McCready Avenue. If you will notice the lot is wider in the rear than in front and has a good depth. Read it carefully as it gives your club house clear for the equity in this lot. Kindly sign both contracts where "X" mark is and return same to me. I will then forward them and have them approved by the other side. However, it may take some time to locate the party as he is touring North and changes his address. However, just as soon as I get them back from you, I will immediately send them ahead, to where I think he will hit next. I had him out at your club house yesterday morning and it doesn't

look so good on account of weeds being so high on the place. The screens are laying around and it isn't very presentable. However, this man Dwyer, who has a store opposite the dance hall gave it a good value and this helped it along."

This letter was signed, "Louis A. Bosso and Son by Louis A. Bosso."

It will be observed that the letter was written on the day following the execution of the deed of Frank Rees to the Bossos and on the same day that the deed of the Bossos to George Lawson and the deed of trust of George Lawson to the Bossos were executed. Lawson was an impecunious newspaper vender, and was not at the time touring in the North or elsewhere.

The duplicates of the contract forwarded with the letter to Leo T. Briece were signed by him and his wife end returned to defendants.

The contract provided that the Crescent property should be conveyed free and clear of encumbrances in exchange for the Pennsylvania Park lot subject to a deed of trust for $ 1500.

By deed dated August 28, 1929, and filed for record on the same day, George Lawson conveyed to Leo T. Briece and Mary B. Briece his wife, the Pennsylvania Park lot, subject to said deed of trust for $ 1500, the consideration as expressed in the deed being $ 10 and other valuable considerations, and Leo T. Briece and Mary B. Briece, his wife, by deed dated August 28, 1929, and filed for record August 30, 1929, conveyed the Crescent property to George Lawson, the consideration as expressed in the deed being $ 10 and other valuable considerations. George Lawson never owned the Pennsylvania Park lot. He was a mere straw party for the Bossos He conveyed the Crescent property by deed of trust, dated August 29, 1929, and filed for record August 30, 1929, to Adolph Bosso as trustee to secure the payment of a promissory note for $ 750 payable to Armand R. Bosso. He then conveyed the property by deed dated August 29, 1929, and filed for record August 30, 1929, to Louis A. Bosso and Katie Belle Bosso, his wife, the consideration as expressed in the deed being $ 1.

Defendants sold the notes given by Lawson and secured by his deed of trust on the Pennsylvania Park lot to Otto Brinkmeyer, and in due time plaintiffs paid the notes. Brinkmeyer testified for--defendants that he went and looked at the Pennsylvania Park lot before he purchased the notes, and figured that the lot, in July and August, 1929, was worth about $ 2400.

A certificate of title to the Pennsylvania Park lot was furnished by the Land Title Insurance. Company of St. Louis, which contained a recital that the fee simple title was vested in George Lawson, except, among other things, "a deed of trust executed by George Lawson to Adolph Bosso, trustee for Armand R. Bosso and Helen I. Bosso, dated July 26, 1929, and filed for record July 27, 1929, to secure part purchase money $ 1500." Briece testified that he read this certificate of title before the trade was completed by the execution of the deeds. He also testified that Bosso told him that George Lawson owned the Pennsylvania Park lot, and that he did not say who George Lawson was; that he did not see any of the deeds other than the deed of George Lawson to him and his wife; that some time in 1931 he learned from Louis A. Bosso that he then owned the Crescent property that Bosso told him he had purchased the property from Lawson; that he did not then know, and never could find out, who Lawson was.

The Pennsylvania Park lot has a frontage on McCready Avenue of fifty-five feet. Its depth is 141 feet, and its width at the rear is 77 feet.

Don A Morrill testified for plaintiffs...