Emily v. Bayne
| Decision Date | 15 October 1963 |
| Docket Number | No. 31344,31344 |
| Citation | 371 S.W.2d 663 |
| Parties | Napoleon EMILY, Mary Margaret Emily and Lucy Ann Emily, Plaintiffs-Appellants, v. James R. BAYNE, Maude Bayne, Mercantile Trust Company, a Corporation, and Cornet & Zeibig, Inc., a Corporation, Defendants-Respondents. |
| Court | Missouri Court of Appeals |
Norman Barken, St. Louis, Sheldon D. Grand, Clayton, for plaintiffs-appellants.
Lashly, Lashly & Miller, John H. Lashly, William E. Rulon, Thompson, Mitchell Douglas & Neill, Courtney Shands, Jr., W. Stanley Walch, St. Louis, for defendants-respondents.
DOERNER, Commissioner.
This is an action for fraud and deceit. Plaintiffs seek to recover both actual and punitive damages because of false representations claimed to have been made by the defendants in connection with plaintiffs' purchase of certain real estate from the defendants James R. Bayne and Maude Bayne, his wife. Defendant Mercantile Trust Company was the sales agent for the Baynes, and defendant Cornet & Zeibig, Inc., acted as the real estate agent for plaintiffs. The jury returned a verdict in favor of plaintiffs and against all of the defendants for actual damages of $6,000 and punitive damages of $7,500, and judgment was entered accordingly. The defendants filed separate motions to set aside the judgment and to enter judgment in accordance with their respective motions for a directed verdict at the close of the evidence, as well as individual motions for a new trial. The court overruled the former motions but sustained the motions for a new trial on the grounds that certain instructions given on behalf of plaintiffs were erroneous. Plaintiffs appealed from that order.
The defendants, while defending the action of the trial court in holding the instructions erroneous, severally contend that the court erred in failing to direct a verdict for each of them at the close of the evidence, in accordance with their separate motions for a directed verdict filed at the close of the evidence. Whether or not plaintiffs made a submissible case against all or any of the defendants is a basic question which we will decide under the circumstances here present. Bailey v. Interstate Airmotive, 358 Mo. 1121, 219 S.W.2d 333, 8 A.L.R.2d 710; Gill v. Mercantile Trust Co., Mo.App., 347 S.W.2d 420; Krueger v. Elder Mfg. Co., Mo.App., 260 S.W.2d 349. It is elemental that in passing on that question we view the evidence in the light most favorable to plaintiffs. Chailland v. Smiley, Mo., 363 S.W.2d 619.
The real estate involved in this litigation is known and numbered as 3305 Russell Avenue, in the City of St. Louis. It was originally constructed for use as a one-family residence, but at the time it was purchased by the Baynes in 1957 it had been converted into a multiple dwelling of eight units. After they bought the property the Baynes lived in one unit and rented out the remaining seven, two of which were in what is commonly called the basement. When the Baynes decided to sell they employed the Mercantile Trust, which has a real estate department, as their sales agent. Mercantile Trust placed an advertisement regarding the property in the February 1, 1959 publication of a St. Louis newspaper. Plaintiff Lucy Emily saw the advertisement and telephoned Mrs. Bernadine Murphy, a part-time saleswoman for defendant Cornet & Zeibig, a real estate firm. Mrs. Murphy, since 1953 or 1954, had undertaken to find a suitable piece of real estate for Miss Emily and her brother, plaintiff Napoleon Emily, but up to that time ahd never been able to do so. Through arrangements made with Mercantile Trust, Miss Emily and Mrs. Murphy inspected the property, apparently at some time in the first part of March, 1959. Both before and after that inspection Mrs. Murphy had been in correspondence about the Bayne's real estate with Mr. Emily, who resided in Kansas City. As a result, Mr. Emily came to St. Louis, sometime in March, 1959 and he, his sister, and Mrs. Murphy examined the building. After the inspection Mrs. Murphy volunteered to and did check the zoning at the City Hall. She reported to both Miss Emily and Mr. Emily that the property was in a zone in which multiple dwellings were permitted.
The Baynes were asking either $31,500 or $32,500 for the property (both figures appear in the evidence). Plaintiffs submitted an initial offer, in an unstated amount, which the Baynes refused. Subsequently plaintiffs submitted a second offer of $27,500, incorporated in a sales contract dated April 6, 1959, which was accepted and signed by the Baynes on April 9. The sales contract was prepared by and is one a printed form of defendant Cornet & Zeibig. It contains the customary sales provisions, and, as the only special agreements typed in, the following:
'This contract contingent upon purchaser obtaining possession of one unit at time of closing this sale.
'Contract further contingent upon reaffirmation by Zoning Commission of zoning for this property being for apartments as represented.'
The sale was closed on July 10, 1959, at the offices of the Title Insurance Corporation in St. Louis. Mrs. Murphy testified that as she, Miss Emily and Mr. Emily were walking to the parking lot immediately after the closing, Mr. Emily told her that Miss Emily didn't want the house and asked her to sell it. Mr. Emily denied that the conversation took place, but admitted that on July 17, 1959, only one week after the closing, he wrote Mrs. Murphy a letter in which he stated that Miss Emily did not like the property and that he would come to St. Louis on July 25 to make arrangements with Mrs. Murphy to place the property on the market.
During the early part of August, 1959, Miss Emily, at Mrs. Murphy's suggestion, went to the City Hall to obtain a '* * * permit to operate the house.' Miss Emily testified that, '* * * they gave me a permit,' but the record does not disclose the nature of the permit she received. Mr. Olin Morrison, a building inspector for the City of St. Louis, who was called as a witness by plaintiffs, stated that at the direction of his superior he inspected the property on August 7, 1959. Whether his inspection preceded or followed Miss Emily's visit to the City Hall is not clear from the evidence. In any event, following his inspection Mr. Morrison notified Miss Emily to make an application for a rooming house permit. She did so. He then made an inspection to determine whether the building complied with the so-called rooming house ordinance, and thereafter wrote Miss Emily recommending that various changes be made, including that, '* * * She was to vacate the two cellar units for occupancy * * *.' Mr. Morrison next visited the building on November 23, 1959, ascertained that his prior recommendations had not been followed, and sent Miss Emily a second letter, '* * * requesting the same items to be done over again.' Mr. Morrison further testified that no rooming house permit had been issued since the time of his first visit. On cross-examination he stated that his records did not show that any complaint had ever been made by the City against the Baynes because of the occupancy of the basement units.
When the Baynes acquired the property in 1957, and when the sale to plaintiffs was closed, the two dwelling units in the basement were rented. The tenants in one unit were Mr. and Mrs. Worster or Wooster, the brother-in-law and sister of Mrs. Bayne, who remained on until December 1, 1961, when they moved. The other tenant was named Adams, but when he moved is not disclosed by the evidence. Miss Emily testified that these two units were not rented at the time of the trial, and that the rental income from the property was then $315 per month.
Additional facts will be stated in the course of the opinion.
The gist of plaintiffs' charge of misrepresentation is contained in the following excerpt from their petition:
The eight elements which must be proven in an action for fraud and deceit, the claim here pleaded, are so well known as not to require enumeration. Bayer v. American Mutual Casualty Co., Mo., 359 S.W.2d 748; Lowther v. Hays, Mo., 225 S.W.2d 708; Wood v. Robertson, Mo., 245 S.W.2d 80; 37 C.J.S. Fraud Sec. 3, p. 215. The first of those elements is that of a representation. Each of the defendants contend that the evidence did not show that he, or anyone on his behalf, made the representations charged in plaintiffs' petition. If it did not, then the motion for a directed verdict of that defendant at the close of the case should have been sustained, for a failure to establish anyone of the essential elements is fatal to a recovery by plaintiffs. Powers v. Shore, Mo., 248 S.W.2d 1; Lowther v. Hays, supra; Orlann v. Laederich, 338 Mo. 783, 92 S.W.2d 190. It seems hardly necessary to add that the burden of proving the charge of fraud was on pliantiffs who asserted it. Shepherd v. Woodson, Mo., 328 S.W.2d 1; Bayer v. American Mutual Casualty Co., supra; Hardwicke v. Hamilton, 121 Mo. 465, 26 S.W. 342.
Because the evidence is different regarding each defendant, the respective contentions of Mercantile, the Baynes, and Cornet & Zeibig will be considered separately, in that order.
The essence of the representation which plaintiffs alleged was made by the defendants was that the building contained eight apartments which could be rented...
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