Gruenewaelder v. Wintermann

Decision Date10 September 1962
Docket NumberNo. 1,No. 48934,48934,1
Citation360 S.W.2d 678
PartiesLouise B. GRUENEWAELDER, now known as Louise B. Howe, Appellant, v. Ewald L. WINTERMANN et al., Respondents
CourtMissouri Supreme Court

Robert Kratky, James B. Herd, St. Louis, for appellant.

Biggs, Hensley, Curtis & Biggs, Ward Fickie, William C. Dale, Jr., St. Louis, for respondent, Security-Mut. Bank and Trust Co.

Bryan, Cave, McPheeters & McRoberts, R. H. McRoberts, R. H. McRoberts, Jr., St. Louis, for respondents, Ewald L. Wintermann and Edmee Wintermann.

DALTON, Judge.

On November 25, 1957, plaintiff, Louise B. Gruenewaelder, instituted this action in the Circuit Court of the City of St. Louis, to recover $150,000 actual damages and $150,000 punitive damages from Ewald L. Wintermann, Edmee Wintermann, and the Security Mutual Bank and Trust Company, a corporation of St. Louis, Missouri (formerly known as the Mutual Bank and Trust Company), on the theory that defendants had entered into a conspiracy to defraud her of certain mining property located in the State of North Carolina and had so defrauded her.

When the pleadings were completed, the defendants filed a joint motion for summary judgment and offered evidence in support of it in accordance with the provisions of Supreme Court Rule 74.04(e), V.A.M.R. The joint motion was sustained by the trial court and plaintiff's petition was dismissed with prejudice. Plaintiff has appealed.

Under Supreme Court Rule 82.12, the parties have stipulated that the appellate transcript shall consist only of the pleadings, affidavits and exhibits necessary to the trial court's determination of defendants' joint motion for summary judgment. Supreme Court Rule 74.04, with reference to summary judgments, in part, provides: '(c) * * * Judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law. * * * (h) In no case shall a summary judgment be rendered on issue triable by jury or the court without a jury unless the prevailing party is shown by unassailable proof to be entitled thereto as a matter of law.'

Defendants' joint motion for summary judgment was based on the theory that plaintiff's action was barred by the five-year statute of limitations, to wit, Section 516.120 RSMo 1959, V.A.M.S., and the court so held. That section, in part, provides: 'Within five years: * * * (5) An action for relief on the ground of fraud, the cause of action in such case to be deemed not to have accrued until the discovery by the aggrieved party, at any time within ten years, of the facts constituting the fraud.'

Appellant insists that 'the pleadings, exhibits, and memoranda before the trial court failed to show by unassailable proof that the appellant knew of the respondents' conspiracy or of the acts of the conspirators in furtherance of the conspiracy' for more than five years preceding the filing of her petition; and that respondents' affirmative defense of the statute of limitations presented a jury issue. Appellant says that defendants have not sustained the burden of proof required under Rule 74.04 because the issues presented 'may not be conclusively determined by an examination of the pleadings, exhibits, and memoranda submitted by the respondents'; and that 'any doubt as to the existence of an issue of fact for a jury's determination necessarily precludes a finding in favor of movants.' Appellant also contends that respondents failed to show by unassailable proof that the last item of damage sustained by the appellant pursuant to the conspiracy of the respondents was sustained at a time more remote than the five-year statutory period governing actions for conspiracy to defraud. Appellant relies upon Section 516.100 RSMo 1959, V.A.M.S., which provides that 'the cause of action shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment, and, if more than one item of damage, then the last item, so that all resulting damage may be recovered, and full and complete relief obtained.'

Plaintiff's petition, filed November 25, 1957, alleged that she had been the owner of a mineral lease on a tract of mineralbearing land in North Carolina; that in 1946 she conveyed to Ewald L. Wintermann a 3/8 interest in said mineral lease in consideration of funds advanced by him as a co-adventurer; that she subsequently acquired title to the mentioned real estate; that in purchasing the property she had incurred a mortgage debt in an approximate amount of $30,500, which she was financially unable to liquidate; that, thereafter, Ewald L. Wintermann and his wife, Edmee Wintermann, aided and abetted by Edward C. Schmidt, who was acting as President of the Mutual Bank and Trust Company, fraudulently and by scheme and device perpetrated acts whereby the Wintermanns obtained title to said land and totally excluded plaintiff from the ownership thereof; that prior to January 30, 1951, plaintiff had a possible buyer for a part of her land for $125,000 'which would have enabled her to adjust and satisfy the existing indebtedness owed by her for the balance of the purchase price paid for the aforesaid tract of land and provide her, in addition thereto, funds for developing said property'; that Ewald L. Wintermann, 'who was then participating with her as co-adventurer,' opposed the sale (and apparently refused to release or sell his 3/8 interest in the mineral lease) and told her that, if she would convey a half interest in the land to him, he would, because of his influence, be able to negotiate a loan of $65,000 from the respondent bank; that with the money so obtained she could pay off the balance of the purchase price of the land in question; 'that pursuant to the trust invested with the defendant, Ewald L. Wintermann, by virtue of the co-interest they had in said property' (and because he told her that he would pay her $5,000 for a half interest in the mentioned land and that they would then be able to obtain a joint loan of $65,000 from the respondent bank in return for notes and a deed of trust on the property, and that the proceeds of such loan could be used to satisfy her $28,000 purchase mortgage debt and interest and have the balance for their further joint use), she accepted the proposal and conveyed a half interest in the property to Wintermann. She further alleged that she was told by said Schmidt that the bank was making a joint loan to her and her husband and to both of the Wintermanns and that it would be a twelve-month loan.

Plaintiff alleged that, on January 30, 1951, the Wintermanns and said Schmidt, who was then acting for defendant bank, 'induced and persuaded plaintiff and her then living husband to execute' a note for $65,000, with 11 interest notes, and to secure said purported loan by a deed of trust on the North Carolina property; and that these notes and the deed of trust were also signed by the Wintermanns to whom plaintiff had deeded a one-half interest in the mentioned property; however, plaintiff also alleged that she 'believed she was obtaining' the loan.

Plaintiff further alleged that Ewald L. Wintermann and Edward C. Schmidt then and there stated and represented to plaintiff that by the execution of said notes and deed of trust plaintiff would receive $5,000 as 'the proceeds from a check of that amount' from Ewald L. Wintermann 'as additional payment to her to the moneys previously advanced to her for signing said deed of conveyance to defendant, Ewald L. Wintermann, of said undivided one-half interest in and to said real property situated in Buncombe County, North Carolina; and that, after payment of the mortgage debt from the proceeds of said loan, the balance of said funds derived from said loan of Sixty Five Thousand Dollars ($65,000.00) would be deposited in a joint account which plaintiff and defendant, Ewald L. Wintermann, maintained with the defendant, Mutual Bank and Trust Company.'

Plaintiff further alleged that defendant bank did not make a joint loan to her and the Wintermanns, as represented to plaintiff, but instead secretly made a $65,000 loan to Ewald L. Wintermann personally, at which time he executed his own individual note for $65,000 dated January 30, 1951, and due in four months; that the defendant bank 'never did make a joint loan in the sum of Sixty Five Thousand Dollars ($65,000.00) to plaintiff and defendants, Ewald L. Wintermann and Edmee Wintermann, but in truth and fact made said loan to Ewald L. Wintermann only, and delivered the proceeds of said loan to Ewald L. Wintermann only, and delivered the proceeds of said loan on his own individual promissory note to the said defendant, Ewald L. Wintermann, without the knowledge and consent of plaintiff; that said defendants, on the pretext of having made a joint loan to plaintiff and defendant, Ewald Wintermann, as aforesaid, recorded and had recorded with the Register of Deeds of Buncombe County, North Carolina, the Deed of Trust executed on January 30, 1951, by plaintiff, * * * and thereby created a lien and encumbrance on plaintiff's said property in the sum of Sixty Five Thousand Dollars ($65,000.00)'; that said notes and deed of trust were 'falsely and fraudulently obtained by defendants, Ewald L. Wintermann and Edmee Wintermann in order that, when the said loan of Sixty Five Thousand Dollars ($65,000.00) was made secretly and separately by defendant, Ewald L. Wintermann, such Deed of Trust could be, and which was, used by defendants and recorded as aforesaid as if a loan had actually been made to plaintiff and defendants, Ewald L. Wintermann and Edmee Wintermann; that defendants fraudulently and falsely concealed and...

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