Harper v. Barket, KCD
| Decision Date | 11 October 1977 |
| Docket Number | No. KCD,KCD |
| Parties | Sophie HARPER, Trustee for Norman Harper, and L. M. Shapiro, M.D., Respondents, v. Alexander J. BARKET, Appellant. 29174. |
| Court | Missouri Court of Appeals |
Michael B. Shteamer, Kansas City, for appellant.
Leonard B. Rose, David R. Frensley, William J. Shapiro, Kansas City, for respondents.
Before TURNAGE, P. J., and WASSERSTROM and SOMERVILLE, JJ.
This suit is to recover on two notes executed by the defendant. The trial court took the case from the jury and entered judgment for plaintiffs at the close of all the evidence. Defendant appeals.
The parties were the owners of stock in Staff Investment Company which owned two doctor buildings in the 700 block on East 63rd Street, Kansas City, Missouri. In 1972, defendant purchased the shares of all four of the other stockholders, making part payment by certain notes. Those notes to plaintiffs were later superseded by the promissory notes now in suit, which came due May 31, 1974.
Defendant admits execution of the notes, non-payment at the due date, due demand by plaintiffs, and failure by him to pay. He nevertheless attempts to defend on the basis of alleged fraud on the part of the sellers. At the trial, he offered to testify that the buildings at the time of sale had been mismanaged and poorly maintained; that a large new medical building nearby was being proposed at the time of the stock purchase; that a number of important tenants in the Staff Investment Company building had given letters of intent to take leases in the proposed new medical building; that many of the leases in the Staff Investment Company building had expired; that plaintiffs knew of the foregoing facts but that defendant was not active in the management of Staff Investment Company and was unaware of those facts; that the sellers of the stock had displayed to him rent rolls of tenants in the building which were misleading; that the Staff Investment Company building by reason of the facts mentioned was of much less value than defendant believed at the time of his purchase; and that he would not have made said purchase had he been aware of the true facts.
Plaintiffs objected to that offer of proof on the grounds that: (1) fraud was not adequately pleaded under Rule 55.15; and (2) defendant had neither tendered back the stock purchase consideration nor counterclaimed for damages and therefore had not properly invoked either of the two alternative remedies available in a case of fraud. Defendant contends that the sustaining of that objection by the trial court was improper that the jury should have been permitted to...
To continue reading
Request your trial
-
Rosenblum v. Jacks or Better of America West Inc., 51392
...also Clayton Brokerage Co. v. Pilla, 632 S.W.2d 300 (Mo.App.1982); Stadium Bank v. Milton, 589 S.W.2d 338 (Mo.App.1979); Harper v. Barket, 557 S.W.2d 455 (Mo.App.1977); Yeager v. Wittels, 517 S.W.2d 457, 465 In the case at bar, Jacks or Better never prayed for rescission of the transaction ......
-
McKeage v. Bass Pro Outdoor World, L.L.C.
...# 310, p. 43). A plaintiff "'may not pursue or attempt to intermingle'" remedies which are "'wholly inconsistent.'" Harper v. Barket, 557 S.W.2d 455, 457 (Mo. Ct. App. 1977) (quoting Auffenberg v. Hafley, 457 S.W.2d 929, 935 (Mo. Ct. App. 1970)). TMBC alleges that rescission is wholly incon......
-
Slater v. KFC Corp.
...received and sue on the contract, or he may return what he has received and sue for rescission and restitution. E. g., Harper v. Barket, 557 S.W.2d 455, 457 (Mo.App.1977). KFC incorrectly asserts, however, that by electing to sue on these agreements Slater affirmed all the contractual terms......
-
Dickemann v. Millwood Golf & Racquet Club
...the purchase and recover the purchase price, or (2) he could affirm the purchase and seek damages for the tort. Harper v. Barket, 557 S.W.2d 455, 457 (Mo.App. 1977). He could not take both positions. This doctrine of election of remedies rests upon the policy that a litigant may not insist ......