Foege v. Woestendiek

• Decision Date: 06 May 1919
• Docket Number: No. 15439.,15439.
• Citation: 201 Mo. App. 382,212 S.W. 411
• Parties: FOEGE v. WOESTENDIEK
• Court: Missouri Court of Appeals

212 S.W. 411

201 Mo. App. 382

FOEGE v. WOESTENDIEK

No. 15439.

St. Louis Court of Appeals. Missouri.

Argued and Submitted April 9, 1919.

Opinion Filed May 6, 1919.

Rehearing Denied May 22, 1919.

Appeal from St. Louis Circuit Court; Kent K. Koerner, Judge.

Suit by Johanna Foege against Herman Woestendiek and others. From judgment for plaintiff, the named defendant appeals. Affirmed.

Eugene D. Ruth, Jr., and James T. Roberts, both of St. Louis, for appellant.

John C. Robertson, of St. Louis, for respondent. Statement.

REYNOLDS, P. J.

On the 18th day of May, 1915, plaintiff filed her petition in which she named as defendants "the unknown holders of deed of trust recorded in book 2585, page 230, Alfred H. Murphy and Jessie Morris Realty & Investment Company, a corporation, and R. A. Bullock, Trustee." Afterwards an amended petition was filed by plaintiff, in which she named appellant, Herman Woestendiek, as defendant, together with Alfred H. Murphy, the Jessie Morris Realty & Investment Company, and R. A. Bullock, Trustee.

The amended petition alleges, in substance, that on December 10th, 1912, the Jessie Morris Realty & Investment Company, defendant, made and executed a principal note for $4,500 due 3 years after date, and six semiannual interest notes for $135 each and also then made a deed of trust on property described, to secure the same; that a credit of $1,000 was indorsed on the principal note and $30 on each interest note, and on December 11th, 1918, for value received, A. H. Frederick, who was then the legal owner of said notes, transferred and assigned them, together with the deed of trust, to the plaintiff for value; that four of the interest notes have been paid, and the principal note and two of the interest notes remain unpaid. Further, that defendant Woestendiek claims and pretends to own the above described notes and the deed of trust securing the same. Averring that she is the real owner of the unpaid notes secured by the deed of trust, plaintiff prays that the court so decree, and also prays for a decree directing defendant Woestendiek to deliver said deed of trust to her, that defendant Murphy, now owner of the property, bought by him subject to the deed of trust, be ordered to pay the note to her, and for general relief.

The Jessie Morris Realty & Investment Company filed its answer, admitting its incorporation and denied generally the allegations of the petition.

The cause was dismissed as to the "unknown holders" of the deed of trust attacked. The answer of defendant Woestendiek, after a general denial, sets up as new matter that he, Woestendiek, holds the genuine notes and the genuine deed of trust, which he had bought before maturity from the Edward K. Love Real Estate Company and for which he paid $4,500. That defendant further sets up that the money advanced by the Love Company was expended in the erection of the building. To this a general denial by way of reply was filed.

Defendant Murphy made no answer and no order or judgment as to him was entered, he being treated as an unnecessary party.

Plaintiff testified, in substance, that she had known Mr. Frederick for a number of years; that he had made a loan of $3,500 for her on certain property on Newstead Avenue, in the city of St. Louis, which she called the "Gossel loan"; that early in December, 1912, about the 6th or 7th, Frederick called her up and told her that the parties wanted to pay this Gossel loan and asked her to bring down her papers. She took these papers to Mr. Frederick's office and left them and afterwards went down there and Frederick told her that the loan had been paid and he (Frederick) had the proceeds, of the loan. Plaintiff further testified that she told Mr. Frederick that she did not want the $3,500 to lay idle and would like a new investment as soon as possible; that Frederick told her that he did not have any deeds of trust for $3,500 at hand that he could give her, and suggested that she come back in a few days; that she returned to Frederick's office on December 10th, 1912, and Mr. Frederick then told her that the Jessie Morris Realty & Investment Company was intending to put up some flats on a lot on Eads Avenue and that he thought it was a good loan for her. She further testified that Frederick told her that while the note was for $4,500, he would indorse a credit of $1,000 on it so as to reduce it to $3,500, the amount she had to loan, and this was accordingly done then and there. She testified that Frederick further stated that the company, meaning the Jessie Morris Realty & Investment Company, would put up the additional $1,000, as they were going to build the flats. She further testified that Mr. Fernich, who was the vice-president of the company, and the architect, showed her the blueprints of the proposed improvement and described to her fully what the Jessie Morris Realty & Investment Company intended to do touching this improvement of that property; that the notes were brought out and Mr. Frederick thereupon indorsed the credit of $1,000 on the principal note, reducing it to $3,500, and a credit of $30 on each of the interest notes, reducing them to $105; that he showed her the deed of trust, which she read, and thereupon took the principal note reduced to $3,500 and the six interest notes reduced to $105 each from Frederick, in payment of the amount due her from Frederick on account of his collection of the Gossel loan of $3,500. Plaintiff further testified that when she took the notes, she left the deed of trust with Mr. Frederick for the purpose of having him record it for her; that she returned some time later and got a certificate of title to the property and that Frederick gave her the recorder's receipt card, showing that the deed of trust had been filed for record, and that later on, some time in January, 1913, she went to Mr. Frederick's office and he gave her the deed of trust. This deed of trust was offered in evidence by plaintiff and is ipsissima verba the same as the deed of trust held and claimed by defendant Woestendiek. Each of these deeds of trust appear to have been executed by the Jessie Morris Realty & Investment Company; each is dated December 10th, 1912; each is given to R. A. Bullock, trustee for W. E. Dearth; each describes the same property and each appears to be given to secure a principal note for $4,500, due in three years after date, and six interest notes, each for the sum of $135, being for interest on the principal note.

Plaintiff testified that she drew $75 on account of the Gossel loan, on December 10th, from Frederick, and exhibited a receipt from him of that date. She also produced a number of receipts showing that she had received money from time to time from A. H. Frederick, which had been charged to her on Frederick's books. Plaintiff's receipts showed that she had been paid by Frederick $745. There had been, as it appears, $5 paid on the unpaid interest note, making it $100. Plaintiff testified that she got these advances from time to time from Frederick and when they amounted to the sum of an interest note, she would deliver the interest note to him; that she had all of her dealings with Frederick and that the interest notes were never paid her by anyone except A. H. Frederick.

Plaintiff further testified that she took her notes and the deed of trust and put them in her box where she kept her papers at home, and that she made no further inquiry touching these papers, except to collect the interest from Frederick, until there was an expose in the newspapers of Frederick's transactions, and that she thereupon made inquiry and found that the deed of trust which she had on the property and which had secured her notes, as a matter of fact, never had been recorded.

Plaintiff also testified that she knew that this was a building loan and knew that the buildings were being erected by the Jessie Morris Realty & Investment Company, who owned the property, as the certificate of title showed the title to that property at the time to be in the Jessie Morris Realty & Investment Company.

Walter Niehaus testified that he was bookkeeper and cashier for Frederick; that the office of the Jessie Morris Realty Company was that of Frederick; that he (witness) was secretary of that company, holding one share of stock to act as secretary; did not know "offhand" who owned the stock of the company but knew that Frederick owned the greater portion of it.

William E. Dearth testified that he had formerly been with Frederick; that the Jessie Morris Realty & Investment Company was a company of Frederick's. Witness was salesman for Frederick and sometimes party to deeds of trust; his name was used in the notes plaintiff held and was put there at Frederick's request, and he (witness) indorsed them; does not remember who he turned them over to; evidently put them on Frederick's desk or took them to Frederick's bookkeeper; was a "straw man" to carry the title.

Morris Fermich testified that he was vice-president of the Jessie Morris Realty & Investment Company; that Frederick was president and Walter Niehaus secretary of that company; that its name was partly taken from his name; that he recalled Mrs. Foege coming there and that he showed her the blueprints and explained to her the nature and character of the improvements that the Jessie Morris Realty & Investment Company intended to put upon that property.

The deposition of A. H. Frederick was taken on behalf of plaintiff. He deposed that he had sold plaintiff a deed of trust on some property on Eads Avenue for $3,500, the deed of trust originally securing a note for $4,500 and interest notes for $135 each; that the principal note was credited as of date December 10th with $1,000; that he had delivered these notes to Mrs. Foege about the time they were dated; that the books of the Frederick Real Estate Company and of the Jessie Morris Realty & Investment Company were kept together, and the transactions which he...