Glitzke v. Ginsberg

• Decision Date: 11 February 1924
• Docket Number: No. 23205.,23205.
• Citation: 258 S.W. 1004
• Parties: GLITZKE v. GINSBERG
• Court: Missouri Supreme Court

258 S.W. 1004

GLITZKE v. GINSBERG

No. 23205.

Supreme Court of Missouri, in Banc.

February 11, 1924.

Appeal from Circuit Court, Jackson County; Samuel A. Dew, Judge.

Action by G. H. Glitzke against Max Ginsberg. Judgment for plaintiff, and defendant appeals. Affirmed.

I J. Ringolsky, M. L. Friedman, Ringolsky & Friedman, and William G. Boatright, all of Kansas City, for appellant.

Thurman L. McCormick, of Kansas City, for respondent.

RAGLAND, J.

This is a suit to compel the specific performance of a written contract for the exchange of real estate in Kansas City.

On and prior to June 26, 1920, the plaintiff was the owner of a frame residence known as 2617 East Twenty-Second street, subject to a mortgage for approximately $2,500, together with certain furniture and fixtures therein contained, and the defendant was the owner of a frame residence located at 1848 Agnes avenue. According to the terms of the contract, plaintiff agreed to convey to the defendant the property at 2617 East Twenty-Second street, subject to the mortgage, and to transfer and deliver to him the furniture and fixtures therein, and defendant, in consideration thereof, agreed to convey to plaintiff, clear of incumbrance, the property at 1848 Agnes avenue and to pay him the sum of $2,500 in cash.

The contract and tender of full performance was duly pleaded in the petition. The answer contained a general denial, an averment that defendant did not own the property at 1848 Agnes avenue as alleged in the petition, and a plea that the contract set out in the petition was obtained through fraud. With respect to this last the allegations were, in effect, that the agreement orally entered into by the plaintiff and defendant was that plaintiff would convey his property clear of incumbrance to defendant, upon a conveyance by the latter of his property clear and the payment of $2,500; that defendant was illiterate and unable to read, and plaintiff's agent, taking advantage of that fact, falsely represented that the written contract, which had been prepared by him, was in accordance with the terms that had been agreed upon orally; that defendant was induced to sign the contract by means of the false representation; and that he repudiated it as soon as he discovered the fraud. The reply was a general denial.

One Engleman, connected with the Bellew Investment Company, was the agent of each of the parties for the purpose of negotiating a sale or exchange of his property On Saturday, June 25, 1920, Engleman took plaintiff to defendant's property where he inspected it. Defendant was not present, but it had been arranged that he was to go to plaintiff's house for the purpose of examining it on the afternoon of the next day, Sunday. Defendant and his wife went to plaintiff's premises pursuant to the arrangement. They found there plaintiff, Engleman, and one Dr. Lowe. While they were looking at the property, a friend of defendant, one Friedman, came along, and at defendant's request examined the premises with him. He gave defendant his opinion as to the difference in the values or plaintiff's house and the defendant's and went away. An offer of exchange on the part of plaintiff had been previously communicated to defendant by Engleman. After Friedman had gone, defendant made a counter offer which was accepted. Engleman thereupon prepared a contract in duplicate on blank forms which he had. After they were filled out, they were signed by the plaintiff and the defendant, and each took one of the duplicate originals.

That the written contract correctly set forth the terms of the exchange that apparently had been agreed upon orally was so clearly established by the great preponderance of the evidence that it would subserve no purpose to set out the testimony of the witnesses as to the preliminary negotiations. However, on the second day after the execution of the contract defendant took it to a banker and asked him to read and explain its provisions. On being advised, as he says, that it required him to take the plaintiff's property subject to a mortgage, he at once repudiated the contract.

Plaintiff after tendering performance of the contract filed a notice of lis pendens, on July 13, 1920, and two days later instituted this suit. On July 19th, following, defendant by warranty deed in which his wife joined conveyed his property to his married daughter, Sylvia Cohen.

During the trial and while defendant was examining his witness Friedman, this occurred

"Q. Are you familiar with property in Kansas City? A. Yes, sir; I have got property of my own.

"Q. What is the value—

"Mr. McCormick (interrupting): I object to that. The value of the property has not been gone into on direct examination or case in chief, and it is not within the issues of this case.

"The Court: Sustained."

The trial court found the issues for plaintiff and decreed:

"That the defendant * * * within ten days * * * (should) execute and deliver to the plaintiff * * * warranty deed, with the usual covenants, conveying to the plaintiff and his heirs the land" which the written contract provided should be so conveyed, and that in addition thereto he pay the plaintiff the sum of $2,500.

The judgment was rendered January 15, 1921.

After the judgment had gone against him, defendant employed the counsel who represent him in this court, and through whom, on January 19, 1921, he filed a motion for a new trial. In addition to the conventional grounds usually found in such motions, it contained the following:

"Because the contract sued on is void. * * * "Because of newly discovered evidence as same appears in the affidavits hereto attached and made a part hereof."

Three affidavits were filed with the motion. One of these was that of J. A. Siemon, the banker to whom defendant had submitted the contract when seeking an explanation of its provisions. In this affidavit Siemon stated that after examining the contract, at defendant's request, he called the Bellew Investment Company over the telephone, and that some one there told him that if the contract required defendant to take plaintiff's property subject to a mortgage, a mistake had been made; he also stated that he was in attendance as a witness during a part of the time the trial was in progress, but was finally excused by defendant's counsel, subject to being called when wanted. The other two affidavits were with respect to the values of plaintiff's and defendant's properties. Afterward, on January 23d, with leave of court, defendant filed his own affidavit to the effect that on the date that the written contract between him and plaintiff was signed the property therein described as his was occupied by him as his homestead, and was in fact his homestead. Thereupon the motion for a new trial was argued by counsel for both sides and duly submitted. It was taken under advisement by the court who requested counsel to brief two points (1) Whether defendant could avail himself of the defense of homestead without having pleaded it; and (2) whether the subsequent conveyance by defendant and his wife to their daughter had the effect of rendering such defense nugatory, regardless of whether pleaded or not. On February 28, 1921, the court without any indication of its views as to the questions raised overruled the motion.

Defendant prosecutes this appeal from the judgment decreeing specific performance. Al appellant here, he contends that the judgment...