Green Acres Enterprises, Inc. v. Nitsche

• Decision Date: 22 June 1982
• Docket Number: No. WD,WD
• Citation: 636 S.W.2d 149
• Parties: GREEN ACRES ENTERPRISES, INC., a Missouri corporation, Plaintiff-Respondent, v. Myrle Linn NITSCHE, Respondent-Appellant, v. W. K. JENKINS, Appellant-Respondent. 32585.
• Court: Missouri Court of Appeals

Page 149

636 S.W.2d 149

GREEN ACRES ENTERPRISES, INC., a Missouri corporation, Plaintiff-Respondent, v. Myrle Linn NITSCHE, Respondent-Appellant, v. W. K. JENKINS, Appellant-Respondent.

No. WD 32585.

Missouri Court of Appeals, Western District.

June 22, 1982.

Roy Bash, Katherine J. Rodgers, Kansas City (Watson, Ess, Marshall & Enggas, Kansas City, of counsel), for appellant W. K. Jenkins.

Darold W. Jenkins, Independence, for respondent Myrle Linn Nitsche.

Before KENNEDY, P. J., and CLARK and MANFORD, JJ.

MANFORD, Judge.

This is an action in ejectment. Judgment was entered in accord with the jury verdict. The judgment is reversed and the cause remanded.

It is necessary initially to explain the origin of this case and to describe the respective relationships of the parties. This action commenced under a petition in ejectment by original plaintiff Green Acres Enterprises, Inc., against original defendant Myrle Nitsche. Defendant Nitsche filed his answer, counterclaim and third party petition, and named W. K. Jenkins defendant in the third party petition. At the close of all the evidence, the trial court directed a verdict in favor of the original plaintiff (Green Acres Enterprises, Inc.) on the original defendant's (Nitsche's) counterclaim. The remainder of the cause was submitted to the jury and the jury returned two verdicts. Verdict number one found in favor of original plaintiff (Green Acres Enterprises, Inc.) and against original defendant (Nitsche) for the loss of rents and profits in the sum of $25,000.00. The record before this court fails to reveal any judgment entry upon that verdict. In the second verdict the jury found in favor of the original defendant (Nitsche-as third party plaintiff) against third party defendant (Jenkins) in the sum of $138,686.52 actual damages and.$1000.00 punitive damages. The trial court entered judgment upon this verdict and designated it as final for purposes of appeal. Following the judgment entry, third party defendant (Jenkins) filed an alternative motion requesting the court to set aside this verdict and to direct a verdict in his favor or to grant him a new trial. Jenkins filed this appeal following the denial of his motion. Hereafter, the parties to this appeal will be referred to by their trial party designation (Jenkins-defendant -appellant), (Nitsche-plaintiff -respondent).

In summary, defendant alleges the trial court erred (1) by permitting the admission of evidence on the issue of fraud, instructing the jury on the issue of fraud and exercising jurisdiction to enter judgment for damages upon the issue of fraud because such a theory was not pleaded, (2) by submitting the issue of fraud because the evidence failed to support the requisite elements for a claim of fraud, and (3) by submitting an instruction that failed to conform to MAI 23.05.

The record reveals that plaintiff and his wife (wife deceased at time of trial) owned approximately 1290 acres of farmland in Bates County, Missouri. As to 400 acres of the land there existed a first deed of trust held by the Security State Bank of Fort "The signors of this agreement made & entered into this day agree as follows:

Scott, Kansas. The amount due under the deed of trust was $141,313.48. Due to delinquency, Security State Bank sought foreclosure on the 400 acres and the date of sale was set for February 16, 1979. Near the date of the foreclosure sale (February 16, 1979) plaintiff and his wife met with defendant and discussed possible refinancing of the indebtedness on all of plaintiff's properties. The record reveals an unsuccessful attempt by the defendant to secure financing for plaintiff. On the sale date (February 16, 1979) plaintiff was successful in forestalling the sale by securing an injunction. In other proceedings, Security Bank was successful in dissolving the injunction and a new date of sale was set for April 20, 1979. The record reveals that the parties had no contact between February 16, 1979 and April 20, 1979. On the morning of April 20, 1979 plaintiff's wife contacted defendant, informed defendant of the impending sale and asked defendant to help them. Upon this contact the parties discussed how the foreclosure sale might be avoided. This meeting took place in defendant's automobile and resulted in a handwritten agreement which the parties signed after talking by phone with their attorneys. This handwritten agreement was the focal point at trial and remains so on this appeal. The handwritten agreement reads as follows:

1. Myrle and Clydene Nitsche will deed 400 acres of land in Bates Co., Mo. to W. K. Jenkins or assigns.

2. W. K. Jenkins or assigns agree to pay off the mortgages to the Security State Bank of Fort Scott, Kansas.

3. W. K. Jenkins or assigns agree to give Myrle and Clydene Nitsche an option to purchase the same 400 acres for six months for the amount of money payed (sic) plus 25,000.00 on or before six months from above date.

4. W. K. Jenkins or assigns agree to lease to Myrle and Clydene Nitsche for the term of the option for one dollar and other considerations.

5. Myrle and Clydene Nitsche agrees to have insurance for liability for the operation of the lease and will hold W. K. Jenkins or assigns harmless for any claims.

s/ W. K. Jenkins

s/ Myrle L. Nitsche

s/ Clydene Nitsche"

After executing this handwritten agreement the parties proceeded to the First National Bank of Butler in Butler, Missouri. At the bank they met with Allen Davis, Vice-President and Cashier of the bank. The record fails to disclose by whose appointment Davis was authorized to act for the Security State Bank, but it is clear from the record that the parties willingly accepted Davis' role as agent for Security State Bank. At the meeting with Davis the sum due to satisfy the first deed of trust was determined and the figure was $141,313.48. After this figure was determined, plaintiff and his wife executed a warranty deed to the 400 acres. In exchange, defendant secured a check from the First National Bank payable to plaintiff, his wife and Security State Bank in the sum of $141,313.48. This check was then endorsed over by plaintiff and his wife to Security State Bank. ¹ Davis testified to the preparation of the warranty deed. He stated that the name of the grantee (Green Acres Enterprises, Inc.) was inserted prior to execution of the deed. This fact was disputed by the plaintiff who charged that the space for the named grantee was left blank. Davis also testified to the preparation of the check. He disclaimed any knowledge of any agreements, or discussions of any agreements between the parties. Davis notarized the signature of plaintiff and his wife to the deed. Events following the meeting with Davis are disputed by the parties. Defendant testified that the parties left the meeting with As can be observed from the above agreement, plaintiff had a six months option to purchase the property "... for the amount of money payed plus $25,000 ..." Following the events of April 20, 1979 the parties again met and plaintiff and his wife indicated to defendant that they had obtained a loan for the purpose of exercising their option under the April 20, 1979 agreement. A handwritten note pertaining to this matter written by plaintiff's wife was admitted into evidence. Dated June 29, 1979 and addressed to the defendant the note read:

Davis and that all three proceeded to the county court house, paid taxes due on the property and proceeded to have the deed recorded. The warranty deed bears the official recording by the Recorder of Deeds, Bates County as of 11:00 a. m., April 20, 1979. The deed was recorded in Book 522 at page 295. Plaintiff testified upon leaving the meeting with Davis, that defendant returned plaintiff and his wife to their automobile at the Butler, Missouri airport and that neither of them accompanied the defendant to the court house.

"From the desk of

MYRLE L. NITSCHE FARMS

ROUTE THREE

BUTLER, MISSOURI 64730

6-29-79

Friday 3:15 p. m.

Mr. Jenkins

The men are to be at our farm tomorrow to go over our loan.

Sorry am late getting back.

Will contact you later.

Thanking you,

Clydene"

Following the recited note the record reveals that plaintiff and his wife consulted an attorney in Nevada, Missouri and following that conference executed an affidavit to which they attached a copy of the April 20, 1979 handwritten agreement. Plaintiff and his wife then caused this affidavit with the handwritten agreement attached, to be recorded in the office of the Recorder of Deeds of Bates County, Missouri. The affidavit (minus the acknowledgment of signature plus the recording certification) reads as follows:

"AFFIDAVIT

RE: The West Half (W 1/2) of the Northeast Quarter (NE 1/4) of Section Thirteen (13) and the Southwest Quarter (SW 1/4) of the Southeast Quarter (SE 1/4) of Section Twelve (12), all in Township Forty (40) of Range Thirty-Two (32); and

The West Half (W 1/2 of the Southwest Quarter (SW 1/4) and the West Half (W 1/2) of Lot One (1), of the Northwest Quarter (NW 1/4) of Section One (1), and the East Half (E 1/2) of the Southeast Quarter (SE 1/4), and the Northwest Quarter (NW 1/4) of the Southeast Quarter (SE 1/4), and the Northeast Quarter (NE 1/4) of the Southwest Quarter (SW 1/4) of Section Two (2), all in Township Forty (40) of Range Thirty-Two).

TO WHOM IT MAY CONCERN:

Comes now Myrle L. Nitsche and R. Clydene Nitsche and on their oath state that the attached contract dated April 20, 1979, is the original contract entered into between themselves and W. K. Jenkins on April 20, 1979 and that they have performed all obligations of the contract and intend to assert their right to performance under said contract which by this reference is incorporated herewith.

s/ Myrle L. Nitsche

s/ R. Clydene Nitsche"

The record reveals subsequent events which included plaintiff filing a bankruptcy proceeding in the United States District Court (W. D., Missouri) pursuant to Chapter XII of the United States...