Groh v. Shelton, No. 8709

CourtMissouri Court of Appeals
Writing for the CourtSTONE; HOGAN, P.J., and TITUS
Citation428 S.W.2d 911
Docket NumberNo. 8709
Decision Date20 May 1968
PartiesAlbert J. GROH and Bessie M. Groh, Plaintiffs-Respondents, v. Oscar SHELTON, Ethel Shelton and Geo. F. Addison, Trustee, Defendants-Appellants.

Page 911

428 S.W.2d 911
Albert J. GROH and Bessie M. Groh, Plaintiffs-Respondents,
v.
Oscar SHELTON, Ethel Shelton and Geo. F. Addison, Trustee,
Defendants-Appellants.
No. 8709.
Springfield Court of Appeals, Missouri.
May 20, 1968.

Page 913

William E. Seay, Salem, for defendants-appellants.

Dorman L. Steelman, Salem, for plaintiffs-respondents.

STONE, Judge.

In this equitable action, plaintiffs Albert J. Groh and Bessie M. Groh, husband and wife, sought to enjoin foreclosure under a certain deed of trust executed by plaintiffs on April 24, 1965, covering and conveying an 80-acre tract in Dent County, Missouri, to defendant George F. Addison as trustee, to secure payment of a promissory note of even date therewith in the principal sum of $1,500 to defendants Oscar Shelton and Ethel Shelton, husband and wife, or their order. At the conclusion of the trial, the temporary injunction was made permanent and defendants were perpetually enjoined from foreclosure. They appeal.

Plaintiffs, who resided in St. Louis, were desirous of purchasing 'a place' (a farm property) in Dent County; and looking toward that end, they asked defendant Oscar Shelton 'to find a place' for them. Defendant Oscar, a resident of Dent County and a 'second or third' cousin of plaintiff Bessie M. Groh, was (so he said) a farm property) in Dent County; and, look-estate. We assume that he did 'not advertise or hold himself out to the public as a real estate broker or dealer' and only 'occasionally' engaged in real estate transactions (V.A.M.S. § 339.010(3)), since admittedly neither defendant Oscar nor defendant Ethel was licensed under V.A.M.S. Chapter 339, 'Real Estate Agents and Brokers,' and we should not presume that either was guilty of intentional wrongdoing. State ex rel. Kugler v. Tillatson, Mo. (banc), 312 S.W.2d 753, 757(7); Sebastian County Coal & Mining Co. v. Mayer, 310 Mo. 104, 111--112, 274 S.W. 770, 772(2); State ex rel. Douglas v. Reynolds, 276 Mo. (banc) 688, 694, 209 S.W. 100, 101(1).

In any event, defendant Oscar undertook to locate a farm property acceptable to plaintiffs, they 'dropped in to see him about three or four times,' and on one occasion (so plaintiff Bessie testified) they drove out and looked at a place but 'didn't like it.' Another place was located in which plaintiffs were interested. However, defendant Oscar reported he 'couldn't get' that place, but at the same time he emphatically recommended the 80-acre tract subsequently purchased by plaintiffs and described in the deed of trust here involved, as evidenced by the following handwritten letter addressed by defendant Oscar to plaintiff Bessie under date of Thursday, April 15, 1965, which (omitting caption and signature) read as follows: 'Dear Bessie I couldn't get the place that you wanted or I mean the one we talked about at or near Gladden. Bessie I found a place of 80 acres in 1/4 mile of 19 highway. Bessie it can be bought for $3,500.00. It has a five room house water in the house and practly (sic) all fenced and Bessie there is over or between $1,000.00 and $1500.00 of saw mill timber on it that will cash right now. Now I must know Saturday sure. There is some terms on this. You see me a Saturday morning early.'

In response to this summons, plaintiffs saw defendant Oscar on Saturday, April 17, 1965, and 'he took them and showed them' the 80-acre tract (hereinafter referred to as the Counts farm), which he had recommended in the above letter. When plaintiffs manifested interest, discussion of the purchase price and terms of

Page 914

payment ensued. Plaintiff Bessie's account of that conversation was: 'Oscar said we had to have $3,500 cash. I told him . . . 'Oscar, we haven't got $3,500.' He up and agreed to loan me $1,000 right away, and I said, 'All I could get is $2,000 cash . . . I will have to borrow another $500.' He said, 'I will have to talk to (defendant) Ethel about the other $500'. . . . He talked to Ethel and he promised to loan us the $1,500 on the place.' Defendant Oscar's testimonial version of the same conversation was: 'I asked them $3,500 for it and they never refused a word. They just bought it but Bessie or both of them said, 'We ain't got but $2,000 to pay down on this.' And I said, 'That is all right. Give me 8% interest and pay me $100 a month until you pay $500 then I will carry the $1,000 for a year or so.''

The owners of the Counts farm were Mr. and Mrs. Virgil Counts, who resided in Iowa. Upon trial, defendant Oscar stated that, shortly prior to Saturday, April 17, he had learned from Virgil's father, Bert Counts, an elderly gentleman 'around 80 years old' who lived in Dent County, Missouri, that the son wanted to sell his farm, and that 'he (Bert) asked me $2,500 . . . he told me that was what Virgil wanted for the place.' 'I (defendant Oscar) told him I would take it. I said, 'As soon as you get the abstract and deed I will pay you in cash, $2,500 cash. '' That only $2,500 would be paid to the Counts was not disclosed to plaintiffs on Saturday, April 17 (or for that matter at any time prior to conveyance of the Counts farm to them); but, as defendant Oscar conceded upon cross-examination, 'I just told them (plaintiffs) it would take $3,500 to buy it and they said, 'Go buy it."

After plaintiffs had dinner at the home of defendants Shelton on April 17, defendant Oscar 'got to studying.' 'Bert (Counts) might be mistaken, maybe he couldn't sell that place. I said, '. . . we will have Ethel, my wife, write the contracts.' She wrote the contracts. I said, 'We will have Bert to sign them. " The handwritten 'contract' dated April 17, 1965, and on that day signed by Bert Counts, defendant Oscar and both plaintiffs, read as follows:

'This agreement made and entered into between Bert Counts first party and A. J. Groh and Bessie Groh his wife second party. In which A. J. Groh and Bessie Groh agrees to purchase farm of 80 acres near Gladden, Mo. from Bert Counts and Oscar Shelton

'In which Bert Counts is to accept a payment of $1,000.00 as earnest money on the price of the farm in which a balance of $2500.00 is due when deed and abstract is made.'

When defendants' counsel pointed out that defendant Oscar was mentioned in the 'contract' and also signed it, plaintiff Bessie explained 'they told me we were buying the place from Virgil Counts, his (Bert's) son . . .. They said Oscar was helping us buy it. We didn't buy it from him, we bought it from Virgil Counts and his wife.' Both plaintiffs insisted that, while they were riding with defendants Shelton, Oscar 'said Bert and Virgil Counts was going to give him $100 for selling the place to us (plaintiffs),' and that there was no 'understanding' about payment of compensation by plaintiffs to defendants Shelton. As plaintiff Bessie put it, 'I wasn't supposed to pay him (defendant Oscar) anything.' Upon trial, there was no assertion by defendants Shelton that they were to have been compensated by plaintiffs, but she Sheltons denied that Oscar had said he was to receive $100 from the Counts.

On Saturday, April 24, 1965, plaintiffs, defendants, Bert Counts and Mr. and Mrs. Virgil Counts met in the law office of defendant Addison in Salem, the county seat of Dent County, for consummation of the sale to plaintiffs. After preparation of the instruments by Mrs. Addison, the Counts farm was conveyed directly to plaintiffs by

Page 915

deed executed by Mr. and Mrs. Virgil Counts, and plaintiffs executed (a) their negotiable promissory note payable to the order of defendants Shelton in the principal sum of $1,500, of which $500 was to be paid in five monthly installments of $100 each and the remaining $1,000 was to be paid one year after date, with interest from date at the rate of 8% per annum, and (b) their deed of trust covering and conveying the Counts Farm to defendant Addison as trustee to secure payment of the aforesaid note. Plaintiffs paid $2,000 directly to Mr. and Mrs. Virgil Counts, and defendant Ethel handed them a check for an amount shortly disclosed to plaintiffs, by happenstance, as having been $500. This was revealed when, after defendant Oscar and Bert Counts had stepped out of Addison's crowded office, Mrs. Addison inquired how many documentary stamps should be affixed to the deed conveying the Counts farm to plaintiffs and Virgil Counts replied '$2,500, that is what I am getting.' By that innocent interchange, plaintiffs first learned that the owners of the Counts farm actually were to receive only $2,500. Plaintiffs' note and deed of trust already had been executed and delivered.

The immediate reaction of plaintiff Bessie was (in her words) that 'I was so mad I couldn't hardly even stand to talk to them (defendants Shelton).' After she returned to St. Louis she consulted an attorney there and, within a month or so, plaintiffs employed their present counsel at Salem. Pursuant to his advice, plaintiffs thereafter paid to defendants Shelton $500 on the principal sum of the $1,500 note, together with interest on that $500 and a $25 collection fee to attorney Addison. When plaintiffs refused to pay the remaining...

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20 practice notes
  • Vandivort v. Dodds Truck Line, Inc., No. 8853
    • United States
    • Missouri Court of Appeals
    • July 23, 1969
    ...v. Bank of Neosho, 120 Mo. 161, 169, 25 S.W. 372, 374; Thomas v. Fitch, Mo.App., 435 S.W.2d 703, 708(5, 6); Groh v. Shelton, Mo.App., 428 S.W.2d 911, 913(1). See Lipscomb v. Talbott, 243 Mo. 1, 35, 147 S.W. 798, 807(8); Fitzgerald v. Barker, 85 Mo. 13, 20--21; C.I.T. Corporation v. Straub, ......
  • Resolution Trust Corp. v. Gibson, Civ. A. No. 92-0140-CV-W-8-6.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • September 10, 1993
    ...and subject to his control, and consent by the other so to act." Leidy v. Taliaferro, 260 S.W.2d 504, 505 (Mo. 1953); Groh v. Shelton, 428 S.W.2d 911, 916 (Mo.App.1968); Dillard v. Rowland, 520 S.W.2d 81, 90 (Mo.App. 1974). An agency relationship may be established by consent manifested in ......
  • In re Seizure of $82,000 More or Less, No. 99-0715-CV-W-5.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • November 1, 2000
    ...with Missouri's position that an agent must account for any profits he acquires during the agency relationship. Groh v. Shelton, 428 S.W.2d 911, 916 (Mo.App.1968). This case is also factually distinguishable from Kalyvakis, 181 F.Supp. at 36-37 where a steward on a steamship found property ......
  • Corrigan v. Armstrong, Teasdale, Schlafly, Davis & Dicus, No. 59165
    • United States
    • Court of Appeal of Missouri (US)
    • January 7, 1992
    ...... and in all respects to act with the utmost good faith, fidelity and loyalty in the interest of [Mr. Corrigan]." Groh v. Shelton, 428 S.W.2d 911, 916 (Mo.App.1968). To be perfectly frank "and make a full disclosure", however, simply means that Armstrong had the duty to grant Mr. Corrigan......
  • Request a trial to view additional results
20 cases
  • Vandivort v. Dodds Truck Line, Inc., No. 8853
    • United States
    • Missouri Court of Appeals
    • July 23, 1969
    ...v. Bank of Neosho, 120 Mo. 161, 169, 25 S.W. 372, 374; Thomas v. Fitch, Mo.App., 435 S.W.2d 703, 708(5, 6); Groh v. Shelton, Mo.App., 428 S.W.2d 911, 913(1). See Lipscomb v. Talbott, 243 Mo. 1, 35, 147 S.W. 798, 807(8); Fitzgerald v. Barker, 85 Mo. 13, 20--21; C.I.T. Corporation v. Straub, ......
  • Resolution Trust Corp. v. Gibson, Civ. A. No. 92-0140-CV-W-8-6.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • September 10, 1993
    ...and subject to his control, and consent by the other so to act." Leidy v. Taliaferro, 260 S.W.2d 504, 505 (Mo. 1953); Groh v. Shelton, 428 S.W.2d 911, 916 (Mo.App.1968); Dillard v. Rowland, 520 S.W.2d 81, 90 (Mo.App. 1974). An agency relationship may be established by consent manifested in ......
  • In re Seizure of $82,000 More or Less, No. 99-0715-CV-W-5.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • November 1, 2000
    ...with Missouri's position that an agent must account for any profits he acquires during the agency relationship. Groh v. Shelton, 428 S.W.2d 911, 916 (Mo.App.1968). This case is also factually distinguishable from Kalyvakis, 181 F.Supp. at 36-37 where a steward on a steamship found property ......
  • Armstrong v. Republic Realty Mortg. Corp., Nos. 78-1501
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • September 18, 1980
    ...So sedulously is this principle guarded that all departures from it are esteemed frauds upon the confidence bestowed." Groh v. Shelton, 428 S.W.2d 911, 916 Undisputed evidence shows that Republic after becoming Fortune's special agent (1) secretly urged CAC to raise to $36,000 the $9,000 pr......
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