Feigenbaum v. Bockrath

• Decision Date: 15 January 1946
• Docket Number: 26876
• Parties: FEIGENBAUM v. BOCKRATH et al
• Court: Missouri Court of Appeals

191 S.W.2d 999

FEIGENBAUM
v.
BOCKRATH et al

No. 26876

Court of Appeals of Missouri, St. Louis

January 15, 1946

'Not to be reported in State Reports.'

S. C. Rogers, of St. Louis, for appellant.

Paul M. Patton and Strubinger, Tudor & Tombrink, all of St. Louis, for respondents.

OPINION

HUGHES [191 S.W.2d 1000]

This is a suit by the receiver of Vancoh Realty Company, which claimed to be the purchaser in due course and the holder for value of a promissory note for the principal sum of $ 4,000 dated April 1, 1930, due April 1, 1933, with eight per cent per annum interest from maturity, and which was later credited with $ 1,500 as of June 12, 1934, realized from the foreclosure of a deed of trust on property securing the note, for the balance of which plaintiff sought judgment. In a second count plaintiff sought recovery on an interest installment note for $ 120, bearing the same date as the principal note, and due October 1, [191 S.W.2d 1001] 1932, with eight per cent per annum interest from maturity, and a third count was based on a similar interest note due April 1, 1933.

The facts are not controverted, and are substantially as follows: Defendant, Henry P. Bockrath, is a dentist, and has practiced his profession in the City of St. Louis for forty years; sometime prior to April 1, 1930, Arthur Frentrup, now deceased, who was a real estate dealer, and officed in the same building as did Dr. Bockrath, and was a personal friend of the doctor's, informed the doctor of a tract or lot of ground bounded by Ferguson, Julian and Ursline Avenues that was for sale by the Davis Realty Company, and he took the doctor to the office of the Davis Realty Company where negotiations were entered into, and after at least three meetings of the doctor with Mr. Davis, President of the Davis Realty Company, and Mr. Frentrup, and at two of which meetings Mr. Simon Van Raalte, President of Vancoh Realty Company, was present, the doctor bought the property for a consideration of $ 8,800 and paid in cash $ 4,800, and executed the notes sued on, and four other interest notes, three of which were afterwards paid to the Davis Realty Company. The doctor testified that before he bought the property, while at the Davis offices, 'Mr. Davis was there, and Arthur Frentrup and Mr. Van Raalte were there and talking about the advantages of this particular lot as a filling station, was to lease it for a Phillips oil station for one hundred and twenty-five dollars a month for five years.' And further, 'Well, they said Ferguson Avenue was going to be a connecting link between Page Boulevard and Delmar.' And further, 'Well, Mr. Frentrup and Mr. Davis was telling what a good advantage it was to buy that property, that it was a good location for a filling station, that the improvements were going to be put in very shortly, they were approved, that the highway was going to be built and so many cars pass there per day and all this, and that it would be a wonderful lease to the Phillips for five years if I pay for the station, and I had to build the station according to the specifications of the Phillips Petroleum Company, they would furnish the plans and specifications.'

The evidence further showed that the tract or lot the doctor bought, instead of being suitable for a filling station, was in a restricted area. Where a filling station could not be erected or operated, and that Ferguson Avenue has never been improved as a connecting link, as it was represented to have been designated it would be. The doctor applied to the city authorities for a permit to construct a filling station on the lot, and was denied permission to do so; he then went before the city council and tried to have the restrictions removed, but the council refused to do so. In the meantime, Mr. Davis promised the doctor to have the restrictions removed, and thereafter the doctor paid three of the four interest notes; it does not appear what has become of the fourth interest note.

After defendants had closed the deal for the purchase of the lot and had delivered the notes sued on to the Davis Realty Company, that company negotiated a loan from the Franklin American Trust Company, and...