Brigham v. T. D. Judy Inv. Co.

• Citation: 186 S.W. 15
• Decision Date: 03 April 1916
• Docket Number: No. 11909.,11909.
• Parties: BRIGHAM v. T. D. JUDY INV. CO. et al.
• Court: Missouri Court of Appeals

186 S.W. 15

BRIGHAM v. T. D. JUDY INV. CO. et al.

No. 11909.

Kansas City Court of Appeals. Missouri.

April 3, 1916.

Rehearing Denied May 1, 1916.

Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.

"Not to be officially published."

Action by Sarah F. Brigham against the T. D. Judy Investment Company and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Chas. A. Loomis, of Kansas City, for appellants T. D. Judy Inv. Co., T. D. Judy, and G. T. Hendrickson. Ellis, Cook & Barnett, of Kansas City, for appellant Charles E. Washburn. Heidelberger & Houston and T. B. Buckner, all of Kansas City, for respondent.

TRIMBLE, J.

Plaintiff brought this action to recover damages on account of fraud which she charges was practiced upon her. At the time of the occurrences hereinafter related, she was a widow 71 years of age, living in Kansas City, Mo., unacquainted with real estate values, inexperienced in business affairs, and ignorant of the proper methods of effecting transfers of real estate. She was the owner of a farm in Kansas.

The defendant T. D. Judy Investment Company seems to have been a corporation organized to engage in the real estate business. Defendant T. D. Judy was its president, and defendant G. T. Hendrickson was a stockholder and director therein, and also vice president of said company. It is apparent from the evidence that all three of these defendants were very closely associated together in business. They jointly maintained an office in the Westover Building at Thirty-First and Troost, though the main office of the corporation was at 1020 Commerce Building. Judy swore that all of the stock of the company had been returned to the treasury and canceled, and that the company was not doing a real estate business in the summer of 1913, and that the office at Thirty-First and Troost was not a company office. But his codefendant Hendrickson swore that the sign on the door bore the name of the corporation; and the contract which said defendants introduced to prove that Hendrickson's business was separate from that of T. D. Judy or the T. D. Judy Investment Company shows that one half of the rent and telephone expense was borne by "T. D. Judy or the T. D. Judy Inv. Co.," and the other half by Hendrickson. Notwithstanding the fact that this contract provided that the business of Hendrickson should be separate and distinct from that of "T. D. Judy or the T. D. Judy Investment Company," and neither should be entitled to demand pay for what business the other originated nor be liable for the other expenses, still the facts and circumstances in evidence are ample to authorize the jury to find that, so far at least as the transactions involved herein are concerned, all three were engaged in the same common and joint enterprise. These facts and circumstances will, to some extent at least, be disclosed as this opinion proceeds.

The defendant Charles E. Washburn was engaged, for 30 years, in the real estate and loan business in Kansas City, and owned a flat at 410 Wabash avenue. The evidence tends to show that this flat was worth very little over $7,000.

As stated before, plaintiff owned a farm in Kansas. It consisted of 160 acres, on which there was a house and other improvements. She testified it was worth $55 per acre, or $8,800, but her testimony was stricken out because she could not qualify as to values. Defendants offered testimony tending to show it was worth $35 per acre, or $5,600. It had a mortgage of $3,000 on it. Plaintiff desired to trade it for Kansas City property, and, seeing an advertisement in the Kansas City Star of property that was for exchange for farm lands, answered the advertisement.

Along in the first part of July, 1913, the defendant Hendrickson came to plaintiff's home, bringing with him her letter. He introduced himself, telling her he had received her letter and gave her his business card, which had on it the name of the T. D. Judy Investment Company and also his name with the address "1020 Commerce Bldg. Kansas City, Mo." (which was the main or uptown office of the company), and also had on it the words "South Office, 206 Westover Bldg., 31st St. & Troost Avenue," together with the telephone numbers of both offices. He told her he represented some one who owned a flat in the city who had a relative who wanted to go on a farm, and this owner would therefore sell or trade his city property. He further told her the flat was on Prospect avenue. This was southwest of where plaintiff lived and in a portion of the city which suited plaintiff. The next day he came in an automobile and took plaintiff to look at the property he had, but, instead of taking her on Prospect avenue, went in another direction and took her to the flat at 410 Wabash avenue, the property owned by the defendant Washburn. Hendrickson showed her this property; the two being there about 20 minutes. He told her it was worth $15,000, and that there was a "straight loan" on it of $7,000. He praised and "bragged up" the property in various ways and asked her what she thought of it. She said she would not have anything to do with it until her eldest son looked at the property. This son was superintendent of the Helping Hand Mission in the north end of the city, but was unacquainted with realty values. Hendrickson at once ascertained from plaintiff his address, and the next day went to see him and took him to look at the property, telling him his mother wanted him to see it. The record is not entirely clear as to just when her son reported to her. The evidence shows that he was busily engaged in his own affairs, taking time to see his mother only whenever he could find the time to do so. He says that he did not make a report to her about the property for perhaps a week after he had gone to see it. If this was the case, then, according to plaintiff's testimony, whatever report he did make to her was after she had tied herself up with the contract and deed as hereinafter related. At certain places in the old lady's testimony it would seem, from what she says, that her son did see her shortly after he looked at the property and advised her to get somebody else beside him to look at it. In another place she says she had not received a report from her son on the property at the time she signed the contract and deed. The son says he told her he did not think the property was worth as much as $15,000. He had no definite idea of its value. And further on he said he told her he did not believe any one would lend $7,000 on the property, although he had said prior to this that he did believe it at the time Hendrickson was showing him the property and told him there was a $7,000 loan on it. From this, and from the fact that the old lady says her son "was terribly worked up over it" when she told him what she had done, it is fair to infer that the son did tell her, shortly after seeing the property, that she had better get somebody else to look at the property before doing anything, and that the time he told her he didn't think the statement that there was a loan of $7,000 on it was true, was at the time he was "terribly worked up" over what she had done, which, of course, was then too late since it was after she had signed the contract and executed the deed. At any rate plaintiff says she told Hendrickson that her son had told her to get somebody else to examine the property for her.

At the time of his second visit to plaintiff's home, Hendrickson, who was a young man in his early 20's, told plaintiff that she greatly resembled his mother, so much so that he was going to bring his mother's picture out to show her. From that time on throughout the negotiations that ensued, Hendrickson called her "mother" and, by complimenting her and her boys, speaking of their good behavior and fine reputation, by taking her out riding and offering to do so at times and by taking her in his automobile to prayer meeting, talking about church affairs, and by other pleasant and agreeable ways, ingratiated himself into the old lady's favor and confidence.

On the 11th of July, 1913, he came again to her home, and wanted her to sign a contract to take the flat. Plaintiff told him she didn't want to sign the contract till she had learned something about its value. He assured her it was worth all he had told her, that there was a straight loan on it of $7,000, and that there was a rule among people who dealt in such things to make no loan on property for more than 40 per cent. of its value, and this showed what the property was worth. Plaintiff told him that she could not "save herself" unless she could get $12,000 for the property, and he said to her, "Oh if you will give me all I can get over $12,000, I will make at least $1,500." And he assured her he could sell it for her and make some money for himself. He induced her to agree to make him her agent to effect the trade of her farm for the flat, she to pay him $150 commission, and the man who owned the flat to pay him a like sum. She did not tell him to draw up a contract, but he drew a blank form from his pocket and proceeded to prepare it for her signature. He did not tell her who owned the flat, but always spoke of him as the man who owned the flat. Plaintiff, believing and relying upon his representations, signed said contract.

It is not definitely certain just how much of this contract was filled out at the time plaintiff signed it. It is certain that Washburn had not signed it at that time, because he did not sign it until after the deal had been closed and the exchange of properties had been consummated. And Hendrickson admits he inserted a certain clause in the contract afterwards to which he says plaintiff consented. When introduced in evidence, however, this contract dated July 11, 1913, was between "Sarah F. Brigham, party of the first part, and Chas. Washburn, party of the second part, and G. F. Hendrickson, agent." By it first party agreed in...