Chandler v. Guenther

• Decision Date: 20 February 1934
• Docket Number: No. 5309.,5309.
• Citation: 69 S.W.2d 962
• Parties: CHANDLER et al. v. GUENTHER.
• Court: Missouri Court of Appeals

69 S.W.2d 962

CHANDLER et al. v. GUENTHER.

No. 5309.

Springfield Court of Appeals. Missouri.

February 20, 1934.

Rehearing Denied April 3, 1934.

Appeal from Circuit Court, McDonald County; Emery E. Smith, Judge.

"Not to be published in State Reports."

Action by R. B. Chandler and another against J. A. Guenther. Verdict in favor of plaintiffs. From an order granting a new trial, plaintiffs appeal.

Affirmed and remanded.

O. R. Puckett, of Pineville, and Ruark & Ruark, of Neosho, for appellants.

J. T. Pinnell and Lon Kelley, both of Pineville, and A. R. Dunn, of Neosho, for respondent.

ALLEN, Presiding Judge.

The plaintiffs, who are appellants herein, alleged in their petition that on the ____ day of September, 1931, they, as owners of an equity in certain real estate in McDonald county, Mo., orally agreed to exchange their equity in said land, together with $600 in cash to be paid by appellants to respondent, in consideration of the transfer by respondent to appellants of a ten-acre tract in or near Anderson, Mo., clear of incumbrance.

Appellants executed and acknowledged a deed in blank to their land and contend that they delivered the same to respondent and that it was accepted by him, but that he failed and refused to comply with his part of the oral agreement for exchange. Thereupon appellants sued respondent for $2,800, the alleged value of their equity in the land mentioned in their deed. Respondent's answer was a general denial.

Upon a trial by jury the following verdict was returned: "We the jury find the issues in favor of the plaintiff for the sum of $2,800.00."

The evidence upon the part of appellants, by R. B. Chandler, was, in substance, as follows: "I bought my orchard from Mr. Guenther in 1915. I couldn't meet my obligation, on account of this Mr. Guenther told me in the spring that it was too bad for both of us and later on he goes to work and forecloses and during that time he knew that I had been trying to sell and that it was for sale. Mr. Tracey had a man that wanted to buy a farm and brought him out to look at the place and he agreed to take it at $15,000.00. We got together fixing up the papers. Mrs. Chandler was in the east, we had to send the deed to New York City, when it came back Mr. Guenther and his wife met me at Mr. Tracey's office and agreed on a deal. I was to get the Chambliss place for $600.00, plus the equity in my farm. Mr. Guenther and his wife signed a deed to the Chambliss place, put it in his pocket and said he wanted Mr. Tandy to see it. Mrs. Chandler and I both signed the deed and we delivered to Guenther. He never paid us anything. The difference between the mortgage against it and the reasonable market value of my place was $2,850.00."

Cross-examination: "I didn't have any deal with Armstrong who was giving $15,000.00 for my place. My agent Mr. Tracey done the talking. Armstrong said that when everything was out of the way he would come back and close the deal. He did come back but he did not close the deal."

Richard Chandler, son of plaintiff, testified: "I was present at the transaction that my father just testified about. The deed my father and mother signed was turned over to Mr. Guenther. He took it and went away and later that day he came in with his wife and made a deed to the Quality-Row property, but he didn't deliver that deed. The next morning I was passing Tracey's and he or Mr. Sealey called me in and said, `Dick, you have left some of your papers and it was the deed we delivered to Guenther,' I saw Mr. Guenther that afternoon and asked him what was wrong and he said `the deal is all off.'"

W. G. Tracey testified: That he was in the real estate business and practice of law. He drew the papers; the deed from Chandler was to be made in blank. Mr. Guenther took the deed to the bank to let them look it over. Guenther did not say why he wanted the deed from Chandler examined by the bank. Mr. Guenther or the bank was to receive $4,000.00 and convey the Quality-Row property to Chandler. Armstrong did not close the deal nor pay the $4,000.00 and Mr. Guenther did not receive that sum of money.

O. A. Tandy, cashier of the Bank of Anderson, said Mr. Chandler had sufficient means to obtain the $600 if the deal went through. Mr. Guenther left a deed to some property north of town to be delivered to Chandler when the $3,400 was paid. It was never paid. There being no reason, as we deem, for quoting the testimony upon the part of respondent or for setting out herein the many reasons urged by him as grounds for a new trial, we shall consider only the reasons stated by the trial court for sustaining the motion, which were as follows: "Motion for new trial sustained on account of the form of the verdict and on account of newly discovered evidence."

The objection to the form of the verdict appears to have been abandoned by respondent. In the brief of appellants our attention was directed to the omission of the letter "s" from the word plaintiff in the verdict, but, from the two cases cited in appellants' brief, it is conclusive that such omission furnished no ground for a new trial. Brickell v. Fleming (Mo. Sup.) 281 S. W. 951, loc. cit. 958; Borkowski v. Janicke, 170 Mo. App. 610, 157 S. W. 125.

Newly discovered evidence was given by the trial court as an additional ground for...