Brueckle v. Pechan

• Citation: 21 S.W.2d 903
• Decision Date: 03 December 1929
• Docket Number: No. 20834.,20834.
• Parties: BRUECKLE v. PECHAN et al.
• Court: Court of Appeal of Missouri (US)

21 S.W.2d 903

BRUECKLE v. PECHAN et al.

No. 20834.

St. Louis Court of Appeals. Missouri.

December 3, 1929.

Rehearing Denied December 17, 1929.

Appeal from St. Louis Circuit Court; George E. Mix, Judge.

"Not to be officially published."

Action by Eva Brueckle against Andrew Pechan and others. Judgment for plaintiff, and defendants Poser and Kriz appeal. Reversed as to the appealing defendants.

Louis E. Trieseler, of St. Louis, for appellants.

E. E. Rudolph, of St. Louis, for respondent.

HAID, P. J.

This action was instituted to have a first lien declared in favor of plaintiff upon certain real estate known as 3501-03 Indiana avenue, in St. Louis, or that plaintiff have judgment for the sum of $5,500 against all of the defendants, who, it is alleged, conspired to and did defraud the plaintiff of that sum. Judgment was rendered in favor of plaintiff for the sum mentioned and $500 punitive damages, and defendants Wilbur Poser, and Beulah Poser, and August Kriz appeal.

The first contention made is that the petition does not state facts sufficient to constitute a cause of action against the appealing defendants. No attack was made upon the pleading in the trial court, either by motion or demurrer, and the only objection we find in the record is that at the close of the plaintiff's case the appealing defendants asked a dismissal on the ground that the plaintiff had failed to make a case against them.

The petition alleged, among other things, that Andrew Pechan was in the real estate business; that the other defendants were closely related to him, and at all times mentioned in the petition were connected with him in certain business deals, and more particularly with the one with the plaintiff; that on or about November 23, 1925, the defendants conspired and acted together to deprive and defraud the plaintiff out of $5,500 by agreeing among themselves to accept said sum from her, with the promise to make and give her a first deed of trust on the Indiana avenue property; that in furtherance of said plot and conspiracy the defendant Pechan accepted $5,500 from her; that the other defendants knew of this fact, and consented and conspired together to obtain said money; that it was agreed that defendant Pechan was to sign a receipt for the money in such a way as to lead plaintiff to believe it was to be handled by Thomas F. Pechan, and that one of the latter's receipts was used and signed, with the name Thomas F. Pechan stamped on same and signed "Per Andrew Pechan"; that plaintiff believes and alleges the fact to be that all of defendants got said $5,500, and that all of them did and still own said property.

Under the rule that, after answer is filed and the issues tried, the petition is to be liberally interpreted, and every reasonable inference indulged in favor of the pleader, the petition in this case was sufficient, even if it may be said to be a defective statement of the cause of action. Steffen v. Stahl (Mo. App.) 273 S. W. 118, loc. cit. 121; Hardy v. Lewis Automobile Co. (Mo. App.) 297 S. W. 169, loc. cit. 170; Doty v. Western & Southern Life Ins. Co. (Mo. App.) 16 S.W.(2d) 712, loc. cit. 713; Weber v. Terminal R. R. Ass'n (Mo. App.) 20 S.W.(2d) 601.

The defendants have cited a number of cases in support of their proposition, among others, Remmers v. Remmers, 217 Mo. 541, 117 S. W. 1117, Harelson v. Tyler, 281 Mo. 383, 219 S. W. 908, and Darrow v. Briggs, 261 Mo. 244, 169 S. W. 118; but an examination of those cases discloses that in each of them a demurrer was filed, attacking the sufficiency of the pleading. The first point, therefore, must be determined against the contention of the defendants.

The next point raised by the appealing defendants is that the evidence fails to support the charge of conspiracy and fraud, so far as said defendants are concerned. The following contains a summary of the evidence appearing in the record before us:

The testimony of the plaintiff is that, prior to the transaction in question, she had some business with Andrew Pechan; that he knew she had a little money, and wanted to give her a deed of trust, and begged her to put up a deposit — he said he had a deed of trust. He gave her a receipt for $5,500, noting it was for a deed of trust on the piece of property on Indiana avenue, and told her the property was not quite clear, that it would take a short time to clear it; that she heard nothing more until she learned the property was sold and a deed of trust placed on it, and ascertained that Mr. and Mrs. Poser were the owners of the property; that, the deed of trust not having been turned over to her, she asked the Posers concerning the matter, and Mr. Poser replied, "I don't know a thing about that piece of property; my Uncle Kriz knows that;" that Mr. Poser asked whether she knew him, and she replied in the affirmative; that she inquired of Mr. Kriz, and he told her he did not know a thing about this piece of property; that it belonged to Andrew Pechan, and if he had known she was transacting business with him he would have told her that Pechan was a crook; that she demanded the money of Andrew Pechan several times, and was informed by the latter that he could not pay it on those occasions, but to see him later, when he had the money; that Andrew Pechan admitted owing the money every time she demanded it of him; that the amount was paid to Pechan by plaintiff; that she never received the deed of trust, and had never received the return of any of the money. The receipt given plaintiff was dated November 23, 1925, recited the receipt of $5,500 "to make first deed of trust on property 3501-03 Indiana Avenue," and was signed "Thomas F. Pechan, by A. F. Pechan." The witness further testified that the Posers lived on Meramec street; that the Indiana avenue property was rented to tenants; that Mr. Kriz was a clerk in the office of Andrew Pechan; that Mr. Poser stated that Mr. Kriz owned the property, and Kriz said Andrew Pechan was dealing with him (Kriz); that she did not know what Andrew Pechan did with the money he received from her; that she did not know by whom the office of Pechan Real Estate Company was operated.

Everett Brueckle testified that he was in the Posers' house in 1926, and asked him if he knew anything concerning the deed of trust on the property at 3501-03 Indiana avenue, and the latter said he did not, and "I said, it is the property that is — Mr. Pechan is the owner of the property as I understood," and that Poser "said he didn't know anything about it; his Uncle Mr. Kriz could tell me something about it; he was working there"; that witness called on Mr. Kriz, and was informed that it was too late to do anything about the property; it had already been fixed; it belonged to Pechan.

Harry Hagemann testified that he had control of the Indiana avenue property, collected the rent, and saw to the repairs; that he represented the nine heirs who were the owners of the property; that he placed the property for sale with the Hosek Realty Company; that negotiations for the sale of the property were carried on for some time, due to the fact that there were some minor children and certain proceedings were necessary in the probate court. Witness presented a statement of account rendered by the Hosek Realty Company, showing the debits and credits and amount received by the Hagemann estate, together with a statement of account with Wilbur and Beulah Poser, which latter statement showed earnest money of $150 paid in September, 1925, cash from Wilbur Poser $1,866.65, and cash from Thomas F. Pechan, d. of t. $5,000, which, with the other items, showed the entire consideration of the sale and other charges. Defendants admitted that the sale was made to Wilbur Poser and wife. Plaintiff offered in evidence a deed by Ida E. Hagemann, curatrix, to Wilbur and Beulah Poser, dated December 23, 1925, acknowledged the same day, recorded March 11, 1926, for a consideration of $777.76; also a deed of trust from Wilbur Poser and wife to Thomas F. Pechan, party of the second part, and Andrew Pechan, party of the third part, for $5,000, dated February 24, 1926, acknowledged the same day, and filed for record February 25 1926; also a general warranty deed from Louis G. Hagemann et al. to Wilbur Poser and wife, dated December 30, 1925, and filed for record March 11, 1926; also a quitclaim deed from E. Hagemann, widow of John Hagemann, to Wilbur Poser and wife, dated December 30, 1925.

Charles J. Hosek testified that along in the fall of 1925 Mr. and Mrs. Poser wanted to buy the property, gave his firm earnest money on it, and his firm submitted the proposition to the Hagemann heirs, the owners of the property, and the latter decided to accept the price offered; that after the earnest money contract had been signed Mr. Poser informed him that he needed $5,000, but witness told Mr. Poser that his firm could not handle the loan; that Mr. Poser then asked him if it would...