Godwin v. Graham
| Decision Date | 13 March 1950 |
| Docket Number | No. 1,41246,Nos. 41110,s. 41110,1 |
| Citation | 360 Mo. 418,228 S.W.2d 789 |
| Parties | GODWIN v. GRAHAM et al. (two cases) |
| Court | Missouri Supreme Court |
Green, Hennings, Henry & Evans, St. Louis, Shifrin & Shifrin, St. Louis, for appellant. John R. Green II, Gideon H. Schiller, St. Louis of counsel.
Clarence M. Barksdale, Jackson F. Adams, St. Louis for respondent.
Respondent sued appellant and many others alleging, in substance, that he had an option to purchase the Park Manor Hotel in St. Louis for the sum of $149,000.00; that appellant, in writing, agreed to either purchase the hotel through respondent for $168,750.00 or to go into partnership with respondent in the purchase of it; that appellant failed to perform this agreement and fraudulently, in conspiracy with others, permitted respondent's option to be forfeited and purchased the hotel for his own account in fraud of respondent and contrary to the agreement. The petition prayed equitable relief declaring respondent to be a partner in the title, for the appointment of a receiver and for an accounting. Appellant's answer and cross-bill admitted the execution of the agreement; denied that respondent had a valid option; denied that appellant was guilty of fraud or conspiracy; alleged that respondent had obtained the agreement by misrepresentation, and that it was void; that respondent was estopped by having terminated the agreement and that respondent had an adequate remedy at law. The answer and cross-bill prayed for the dismissal of the petition; that the court try and determine title and vest the same in appellant.
Appellant's father, Isaac Graham, was a defendant and filed a general denial.
All defendants except appellant and Isaac Graham were dismissed. The case went to trial against appellant and his father, resulting in a decree finding defendants guilty of fraud, declaring respondent to be a partner in the title, appointing a receiver and requiring defendants to make an accounting. Isaac Graham did not appeal.
The record of the trial is long and replete with conflicting testimony, but out of the maze of contradictions and discrepancies the following facts emerge. From and after June, 1942, respondent had an option or contract to purchase the hotel and had deposited with the corporation owner or its agent the sum of $5,000.00 as earnest money. This contract, originally procured for respondent by a real estate agent named Willson, was amended from time to time by mutual consent until on April 27, 1943, and for many months prior thereto it stated a total purchase price of $149,000.00, or $144,000.00 above respondent's deposit. During much of this time appellant, through his agent, Klein, had been negotiating with respondent for the purchase of the hotel.
The time for closing respondent's option was extended from time to time. Appellant's evidence indicates that this was due in part at least to the inability of respondent to procure the necessary financing. Other reasons were that respondent was in the Army and absent from St. Louis; also a suit was pending by the lessees against the hotel company which alone was sufficient to prevent closing the deal until April 24, 1943, when that suit was settled. Whatever caused the delay, the evidence is overwhelming that respondent's option was in force on the morning of April 27, 1943. On the afternoon of that day appellant bought the hotel on his own account.
In the spring of 1943 representatives of the hotel company were pressing for a speedy settlement with respondent. Appellant's evidence is that April 27 had been set as the definite and final date for closing, although respondent testified that Glaeser, one of the company's agents, had assured him of a reasonable time after that date. This was denied by the agent.
In April, 1943, respondent was a Captain in the Army and appellant was a Lieutenant in the Navy and both were stationed in or near Washington, D. C. On April 24, appellant called on respondent at his office in the Pentagon Building and they entered into the following agreement:
'Agreement.'
'April 24, 1943.'
'It is agreed between Grover Godwin and Robert W. Graham that the said Robert W. Graham will deposit immediately with the Lawyers Title Company in St. Louis, Missouri, the sum of Thirty Thousand Dollars ($30,000.00), of which Twenty-Five Thousand Dollars ($25,000.00) is to be paid to the Metropolitan Trust Company of Chicago, Illinois, as part purchase of the Park Manor Apartment Building at 5560 Pershing Avenue, St. Louis, Missouri, and Five Thousand Dollars ($5,000.00) will be returned to the said Grover Godwin. The said Robert W. Graham may have the option to purchase the said property from Grover Godwin for the sum of One Hundred Sixty-Eight Thousand Seven Hundred Fifty Dollars ($168,750.00) and to pay said Grover Godwin all cash or, in place of all cash, to give Grover Godwin a second deed of trust in the sum of Fifteen Thousand Dollars ($15,000.00) to be payable Five Hundred Dollars ($500.00) a month in principal with six percent interest, subject to a first deed of trust which the said Robert W. Graham will procure and pay for in the amount not to exceed One Hundred Twenty-Five Thousand Dollars ($125,000.00), interest and principal to be not more than Twelve Thousand Dollars ($12,000.00) a year, or said Robert W. Graham may have the right to elect to go into partnership with the said Grover Godwin in the ownership of said property, and each will endeavor to secure financing, in this event said Grover Godwin to be repaid expense money of Twenty-Two Hundred Dollars ($2,200.00) and property to be financed by a first and second deed for as much as possible, and for the balance a third deed of trust in the sum of Thirty Thousand Dollars ($30,000.00) or less is to be given to said Robert W. Graham. The equity above these three mortgages to be held jointly by said Grover Godwin and Robert W. Graham.
s/ Grover Godwin.
s/ Robert W. Graham.'
Respondent assisted in obtaining leave for appellant and priority for him on a plane to St. Louis. Appellant, with the above agreement in his pocket, boarded a plane that day, but was delayed at Pittsburgh and did not arrive in St. Louis until the next day, Sunday, April 25. On Sunday afternoon he sent the following telegram to respondent:
Respondent replied by wire as follows:
Appellant saw his agent Klein on Monday afternoon. On Tuesday morning, April 27, Glaeser, trust officer of a Chicago trust company acting as corporate agent of the hotel company, and Hershenson of Chicago, attorney for the hotel company, arrived in St. Louis with the express purpose of selling the hotel that day. They went direct from the train to the office of Klein, appellant's agent, where they conferred with appellant and Klein and were informed of the agreement existing between appellant and respondent. Later the same morning appellant, Klein, and the Chicago men went to the office of Lloyd, an officer of Lawyer's Title Company. There they were joined by Willson, the Chicago real estate agent who had procured the original purchase agreement for respondent. Appellant testified:
Then ensued two telephone talks with respondent in which each of the persons named above joined in from time to time over extensions of the telephone. One call lasted for sixty-four minutes. It is impossible to fully recount just what was said; the participants testified to conflicting versions. It seems that some of the Chicago men insisted that the Godwin deal could be closed only by the immediate payment of the entire purchase price. Respondent Godwin claimed that Glaeser had promised him a reasonable time to close the deal, if a deposit of $25,000.00 be made, and urged appellant to make the deposit of $30,000.00 called for by their agreement. Appellant refused to do that because, he says, he was uncertain that he could obtain sufficient financing to complete the deal. Hershenson testified that appellant had offered to deposit $30,000.00 [with some adjustments] that morning if they got more time; The hotel company representatives were somewhat fearful that, by forfeiting respondent's option, they would violate the provisions of the Soldiers and Sailors Relief Act. Respondent says that after much urging he agreed to accept a third deed of trust for $15,000.00 under certain conditions, and the next day executed and mailed two...
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