Fuchs v. Leahy

• Decision Date: 03 October 1928
• Docket Number: No. 26328.,26328.
• Citation: 9 S.W.2d 897
• Parties: JULIUS J. FUCHS and MARY PHILLIPS, Executors of Estate of ADOLPH ABBEY, v. WILLIAM H. LEAHY, Appellant.
• Court: Missouri Supreme Court

9 S.W.2d 897

JULIUS J. FUCHS and MARY PHILLIPS, Executors of Estate of ADOLPH ABBEY, v. WILLIAM H. LEAHY, Appellant.

No. 26328.

Supreme Court of Missouri. Division One.

October 3, 1928.

Appeal from Circuit Court of City of St. Louis. — Hon. Wilson A. Taylor, Judge.

REVERSED.

Caulfield & Bartlett for appellant.

(1) The foundation of this action, whatever its form, is the alleged fraudulent representation by the dual agent, Altheimer, as to the financial responsibility of Padfield. Keener, Law of Quasi-Contracts 207; Huffman v. Hughlett, 11 Lea (Tenn.) 549. (2) Defendant is not liable to Abbey for the alleged fraudulent representation of Altheimer, it conclusively appearing from plaintiff's own evidence, uncontradicted, that Altheimer was an agent acting in the premises for both parties with their consent, and there being no evidence that Leahy participated in or had knowledge of such alleged fraudulent representation. For this reason it was error to refuse defendant's demurrer to the evidence, and to refuse defendant's Instruction G, and it was error to give plaintiff's Instruction 1, which wholly ignores the fact that the alleged representations were made, if at all, by one acting by consent as agent for both parties and that the defendant did not participate therein. Austin v. Rupe (Tex. Civ. App.), 141 S.W. 547; Ringer v. Wilkins, 183 Pac. 988; 2 C.J. 855; 2 Mechem on Agency, sec. 2140; Walker, Real Estate Agency, 300; Brown v. Trust Co., 71 Kan. 134; Blair v. Baird, 43 Tex. Civ. App. 134; Smith v. Farrell, 66 Mo. App. 8; Pine Mtn. Iron & Coal Co. v. Bailey, 94 Fed. 258; Bank of Milford v. Town of Milford, 36 Conn. 93. (3) Defendant's demurrer to the evidence should have been given, for the further reason that it conclusively appears, from plaintiff's own evidence, uncontradicted, that plaintiff did not rely upon such representations, to his injury. Bryan v. Hitchcock, 43 Mo. 527; Anderson v. McPike, 86 Mo. 293; 26 C.J. 1137, 1140; Elphick v. Hoffman, 49 Conn. 331; Haldom v. Ayer, 110 Ill. 448; Wann v. Scullin, 210 Mo. 487. (4) If the action is for money had and received, then the recovery permitted by plaintiff's Instruction 1, to-wit, the full unpaid balance of the notes, plus interest, was clearly erroneous, for defendant had and received of plaintiff only about $6000 in money. The remainder of the notes represented the difference in the agreed values of the properties exchanged, the value of the property alleged to have gone into defendant's possession. An action for money had and received will not lie to recover the value of property, unless it has been sold or otherwise converted into money or its equivalent. 27 Cyc. 853; Lang v. Friedman, 166 Mo. App. 354; Green v. Whaley, 258 Mo. 530, Haux v. Russell, 10 Mo. 246. And as the verdict followed this instruction in the amount of the award, it is erroneous and grossly excessive. (5) If this be an action for money had and received, then the plaintiff cannot recover, and defendant's demurrer to the evidence should have been given, because the plaintiff has retained and disposed of, for his own use, the real estate on Lindell Boulevard, which, as well as the notes, he received for his Easton and Semple property. The action for money had and received proceeds on the ground of a disaffirmance of the contract and a restitution of the thing given in exchange. And the other party to the contract must be placed in as good a position as he was before the contract was entered into. McGrew v. Smith, 136 Mo. App. 343; Cahn v. Reid, 18 Mo. App. 115; 27 Cyc. 371.

Abbott, Fauntleroy, Cullen & Edwards for respondents.

(1) It has long been the rule in Missouri, as well as elsewhere that where one merely as the agent of another, obtains money or property for the other, the person so receiving the money or property may be sued for it on the original consideration, as the undisclosed principal. Higgins v. Dellinger, 22 Mo. 397; Weber v. Collins 139 Mo. 501; Winslow v. Stone Co., 169 Mo. 243; Manse v. McGuire, 52 Mo. App. 150; Nichols v. Kern, 32 Mo. App. 6; Donner v. Whitecotton, 201 Mo. App. 443. The authorities outside of our own State are to the same effect. Harper v. Tiffin Nat. Bank, 54 Ohio St. 425; Second Baptist Church v. Furber, 109 Ind. 492; Sessums v. Henry, 38 Tex. 37; Chemical Nat. Bank v. City Bank, 156 Ill. 149; Merrill v. Kenyon, 48 Conn. 314; Keller v. Singleton, 69 Ga. 704; Keyton v. Barnett, 116 N.Y. 625; Lovell v. Williams, 125 Mass. 439; Merrell v. Witherby, 23 So. 994; Castle v. Belfast Foundry Co., 72 Me. 167, 17 Ann. Cas. 975. (2) That the action for money had and received lies where money or property is obtained from another by fraud, has long been the established doctrine of this State. Stout v. Hardware Company, 131 Mo. App. 520; Gerardi v. Gardner, 255 Mo. 538; Clifford Banking Co. v. Commission Co., 195 Mo. 262; Case note to Martin v. Hutton, 36 L.R.A. (N.S.) 602; Walton v. Chalmers, 205 S.W. 92; Dobson v. Winner, 26 Mo. App. 335; Crigler v. Duncan, 121 Mo. App. 391. (3) The contract having been executed and Leahy having received the property and money, he cannot repudiate his liability on the theory that the agency was a dual one. 1 Mechem on Agency (2 Ed.) 894, sec. 1222; Wharton on Agency, sec. 244; Storey on Agency, sec. 310; U.S. Rolling Stock v. Atlantic Ry. Co., 34 Ohio St. 450; 21 R.C.L. 932, sec. 111; Wheeler Mfg. Co. v. Aughey, 144 Pa. St. 398; 27 A.S.R. 638; Kent's Commentaries, 616; Daley on Agency, 172; 21 R.C.L. 893, secs. 64, 65, 66; 2 Mechem on Agency (2 Ed.) 1593, secs. 2025, 2137. (4) It is well settled that, when persons by mutual agreement fix a value to property, they are bound by it. The law will not in such case permit either party to dispute the value as settled by them. If parties definitely settle upon and agree to the value of their respective properties for the purpose of sale one to the other, no inquiry concerning actual values is permissible, as these are put beyond question by those having to determine the worth thereof for themselves and thereby fix the measure of damages in event of a breach. Boyce v. Gingrich, 154 Mo. App. 202; Thornton v. Moody (Tex. Civ. App.), 24 S.W. 331; Haywood v. Haywood, 42 Me. 229, 66 Am. Dec. 277; Harrington v. Wells, 12 Vt. 505; Parsons v. Johnson, 50 N.Y. Supp. 782; Fagin v. Hook (Iowa), 105 N.W. 159.

RAGLAND, J.

This case comes to the writer for opinion on reassignment. It is an appeal from the Circuit Court of the City of St. Louis. The respondent, Adolph Abbey, has died pending the appeal, and the cause has been revived in the name of his executors. In the statement and opinion which is to follow he will be referred to as plaintiff, and the appellant Leahy as defendant.

The petition on which the cause was tried, after setting forth that on the 13th day of October, 1920, plaintiff was the owner of certain real estate on Easton and Semple Avenues in the city of St. Louis and that on said date defendant was the owner of certain other real estate on Lindell Boulevard in said city, proceeded as follows:

"Plaintiff says that on October 13, 1920, he entered into a contract with one Russell T. Padfield for the exchange of said properties, and it was agreed that the Lindell Boulevard property, subject to deeds of trust aggregating $41,000, should be exchanged at the price of $60,000 for the Semple and Easton Avenue property, which was then subject to deed of trust for $16,500, $602 interest on said deed of trust and $525 taxes, at the price of $45,000, leaving a balance due plaintiff of about $9500, as the difference in the values of said properties, and it was further agreed that plaintiff should advance or loan to the person owning the Lindell Boulevard property the sum of $6000, in cash, and that said person would give his notes to plaintiff in a sum sufficient to cover both the $6000 advanced or loaned and the $9500, the difference aforesaid, and pursuant to this arrangement, on or about October 22, 1920, the plaintiff conveyed or caused the Easton and Semple Avenue properties to be deeded to Padfield, and the said Padfield caused said Lindell Boulevard property to be conveyed to C. Youdel, trustee for plaintiff, and the plaintiff then and there advanced or loaned to Padfield the said sum of $6000, and the said Padfield gave to plaintiff his promissory notes for $15,500 to cover said cash advanced and the difference between the properties exchanged, and the said Padfield secured the same by a second deed of trust on the Semple and Easton Avenue property.

"Plaintiff says that the defendant, his agents and servants, for the purpose of inducing him to advance said sum of $6000 and accept the notes of Padfield for said sum and for the said $9500 difference falsely and fraudulently represented to plaintiff that Russell T. Padfield was the true and lawful owner of a large amount of property, including said Lindell Boulevard property, and that the said Padfield would receive as his own the $6000 advanced, and that the said Padfield was a rich man, perfectly solvent and able to pay and satisfy the notes given for the $6000 cash advanced, or loaned, as well as the notes for $9500, representing the difference in the exchange of properties, and further for the purposes aforesaid said defendant, its agent and servants, falsely and fraudulently represented to plaintiff that the Lindell Boulevard property was of the cash value of $60,000.

"Plaintiff says that he believed said representations to be true, relied thereon, and was deceived thereby, and induced to pay out and advance the said sum of $6000 in cash to said Padfield, and to convey the Semple and Easton Avenue property to him and accept the notes of the said Padfield for the sum of $6000 cash advanced, and for $9500, the difference owing to him on account of the exchange of said properties.

"Plaintiff further states that said Padfield was a straw man used by Leahy and has repudiated the entire transaction, and announced...