Chapman v. Kraehe

• Decision Date: 07 January 1930
• Docket Number: No. 20883.,20883.
• Citation: 22 S.W.2d 845
• Parties: CHAPMAN v. KRAEHE et al.
• Court: Missouri Court of Appeals

22 S.W.2d 845

CHAPMAN v. KRAEHE et al.

No. 20883.

St. Louis Court of Appeals. Missouri.

January 7, 1930.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

"Not to be officially published."

Action by Sarah R. Chapman against Oliver R. Kraehe and others. Judgment for defendants, and plaintiff appeals. Affirmed in part, and in part reversed and remanded.

Charles A. Lich, of St. Louis, for appellant.

Thomas I. Krauska, of St. Louis, for respondents.

BENNICK, C.

This is a suit in equity for the rescission of an executed contract for the exchange of certain parcels of real estate by and between plaintiff and defendants. The decree of the court was that plaintiff's bill be dismissed; and from the judgment rendered, plaintiff has duly appealed.

On November 22, 1927, plaintiff, a widow, entered into a contract in writing with defendants Walter and Mamie Emling, husband and wife, whereby plaintiff agreed to exchange property owned by her at 3208 St. Vincent avenue, in the city of St. Louis, subject to a first deed of trust for $2,000, for certain tenement property owned by defendant Walter Emling at the southeast corner of Third and Sidney streets, in the city of St. Louis, known as 222-230 Sidney street, and 2600-2610 South Third street, subject to a first deed of trust for $7,500, and a second deed of trust for $4,500. The contract provided for an even exchange of equities, and the respective deeds were executed on December 9, 1927. While the exact status of defendant Kraehe is not entirely clear, it would appear, and he admits for his own part, that he was the agent for the Emlings in the transaction; and the evidence further discloses that immediately after the trade between plaintiff and the Emlings was closed, Emling permitted Kraehe to take over the St. Vincent avenue property for the sum of $2,000, in lieu of the payment to him of a commission for his services.

After identifying the defendants, and giving a description of the two parcels of land involved in the trade, the petition continued as follows:

"That plaintiff executed said contract of exchange upon the representations made by the defendants that the equity in the property lastly herein described was of the reasonable value of $5,800.00, and that the improvements thereon were safe and sound; that plaintiff accepted the representation of the defendants as aforesaid as being true, but in the exercise of ordinary care for her protection she personally viewed said lastly described property and the improvements thereon, and saw nothing patently wrong; that thereafter, to-wit, on the 9th day of December, 1927, plaintiff, relying on the representations of the defendants as aforesaid, executed a deed at the instance of the defendants Emling to the defendant Kraehe to her real property as firstly herein described, and accepted in exchange therefor a deed from the defendants Emling to the property herein secondly described.

"That prior to plaintiff's entering into the said contract of exchange with defendants Emling, the improvements on the property herein secondly described were condemned as being unsafe by the authorities of the City of St. Louis, Missouri, and dangerous to persons using or occupying the same, and that a warning of such danger was given to the general public by the posting of notices on said improvements; that the aforesaid fact was at all times herein mentioned known to all of the defendants but was unknown to plaintiff, and the defendants, in fraud of plaintiff, kept her in ignorance of such fact; and that the defendants, in furtherance of the fraud practiced on plaintiff as aforesaid, without authority from the City of St. Louis, removed the warning notices posted by the City of St. Louis on the said improvements as aforesaid; by reason whereof the said notices did not come under the observation of plaintiff when she personally viewed the improvements on said property as aforesaid.

"Plaintiff states that at the time the exchange of property was consummated she delivered a warranty deed to the St. Vincent property to the defendant, Kraehe, the name of grantee having been omitted therefrom, and that at said time defendant, Kraehe, informed plaintiff that the title to this property would be taken in his own name, and that plaintiff thereupon instructed said defendant to insert his name in said deed as grantee, but plaintiff states that contrary to her advice and instructions instead of inserting his own name therein, he inserted the name of Dorothy Kraehe, said Dorothy Kraehe taking the record title to said property as a straw person for and on behalf of the said defendant, Oliver Kraehe.

"Plaintiff states that as a direct result of fraud practiced by the defendants on plaintiff, plaintiff parted with and suffered the loss of her real property wherein her equity was of the reasonable value of $5,800.00; and she is without adequate remedy at law.

"The premises considered plaintiff prays:

"I. That the exchange of real estate made between the parties as aforesaid be set aside and for naught held.

"II. That the title to the property firstly described herein be vested out of the defendant, Kraehe, and re-vested in the plaintiff, Sarah R. Chapman.

"III. That by way of alternative a money judgment be rendered in favor of Sarah R. Chapman in the sum of $5,800.00 plus interest from November 22, 1927, to date at the rate of 6 per cent.

"IV. That the property secondly described and known as 222-230 Sidney Street and 2600-2610 South Third Street be impressed with a lien in plaintiff's favor to secure the collection of such money judgment as may be rendered in her favor, and that the property firstly described and known as 3208 St. Vincent Street likewise be impressed with a lien until such time as said money judgment shall have been liquidated and satisfied.

"V. That the court will enter such further orders, judgments, money judgments and decrees affecting the premises as to the court shall seem meet, proper and expedient."

The joint answer of the Emlings was a general denial. Kraehe answered separately, denying generally the averments of plaintiff's bill, and specially that the Sidney street property had been condemned prior to the date of the exchange, or that he had made any representations to plaintiff in regard to the value or condition thereof; and then alleging that plaintiff had not relied on any representations of defendants in regard to the condition of the property; that instead she had relied upon her own judgment and upon that of her agent; and that by her acts and conduct subsequent to the transaction she had affirmed and ratified the same.

The reply was in the conventional form.

The evidence disclosed that negotiations were begun through William A. Baldridge, who was plaintiff's agent, and defendant Kraehe, who represented the Emlings under an arrangement whereby he himself was to acquire the St. Vincent avenue property from Emling upon the payment to him of the amount of his equity in it, as has been heretofore pointed out. The contract for the exchange was drawn upon a printed form, and was signed at the instance of the respective agents, by plaintiff on the one part, and by Mr. and Mrs. Emling on the other.

Upon the signing of the contract, it seems that Kraehe suggested that plaintiff and Baldridge should inspect the Sidney street property; and they did make such an inspection a day or so afterwards. This property consisted of several separate buildings, and plaintiff found that the flooring in one of such buildings was torn up, but she was told by the men who were working on the job that they were only engaged in making repairs to the floor. Plaintiff testified that the walls appeared to her to be in a very good condition, and Baldridge stated that while he observed that the walls bulged a little, he noticed that they had been braced, and consequently concluded that they were all right.

It will be recalled that the contract for the exchange had been signed on November 22, 1927. On the following December 9th, plaintiff and Mr. Emling met for the first time in Kraehe's office, where the deeds were executed; Emling and his wife conveying their interests in the Sidney street property to plaintiff, and plaintiff conveying the St. Vincent avenue property to Emling, who in turn conveyed it to Kraehe. An adjustment of rents, taxes, and insurance was made at the time, but nothing was said by either of the parties about the...