Hauschild v. Davis

• Decision Date: 06 November 1944
• Docket Number: No. 38981.,38981.
• Parties: HAUSCHILD v. DAVIS et al.
• Court: Missouri Supreme Court

183 S.W.2d 66

HAUSCHILD v. DAVIS et al.

No. 38981.

Supreme Court of Missouri, Division No. 1.

November 6, 1944.

Appeal from Circuit Court, Morgan County; Walter M. Dinwiddie, Judge.

Action by Lina Hauschild against Joseph R. Davis and others to cancel a deed and recover other consideration given in an exchange of lands, in which defendants filed a counterclaim. From a judgment of dismissal, plaintiff appeals.

Affirmed.

William J. Becker, of Clayton, for appellant.

A. J. Bolinger, of Versailles, and Frank W. Jenny, of Union, for respondents.

HYDE, Judge.

This is an action to cancel a warranty deed to real estate and to obtain return of other consideration given in an exchange of lands. The court found against plaintiff and dismissed her petition; also finding against defendants on their counterclaim. Plaintiff has appealed.

It is not contended that plaintiff had any actual interest in the transaction. Apparently she was only a straw party for her brother, Richard Mederacke, a contractor and builder, who owned the land herein involved, located on the Lake of the Ozarks and called Echo Valley Lodge. This was a tract of 105 acres in Morgan County, upon which Mederacke had built tourist cabins and operated a lake resort. J. R. Davis, hereinafter referred to as defendant, owned a filling station at Villa Ridge in Franklin County on U. S. Highways 66 and 50, upon which there was also a two story restaurant building with sleeping rooms for truck drivers. On August 28, 1942, the parties entered into a contract whereby defendant agreed to convey the filling station property to plaintiff, for which defendant was to receive the conveyance of the Morgan County land, and a second deed of trust on apartments in St. Louis upon which there was an unpaid balance of $5160; and plaintiff was to also execute a note for $10,000 payable $100 per month, secured by a deed of trust on the Franklin County property. Deeds were made in accordance with this contract on September 10, 1942, and Mederacke went into possession of the filling station. The $9000 insurance policy on the restaurant building expired on December 31, 1942. Mederacke did not renew it and the building burned on January 18, 1943, without insurance. Mederacke was also delinquent on the principal payments and defendant commenced foreclosure of the filling station mortgage on February 12, 1943, which was completed on March 6, 1943.

The deed of trust executed by plaintiff on the filling station property required plaintiff "to keep the improvements on said premises insured against loss by fire and windstorm in such amounts as party of the third part may direct, with loss payable clause to parties of the third part." It also contained the following additional provision: "In the event that the gasoline filling station located on the property above described is forced to close on account of any order of the U. S. Government, or any of its agencies, directly affecting said business, then the principal payments on said note will be tolled until said business can be reopened and the interest only will be due, and payable during such period. All unpaid principal will be due in any event not later than September 10, 1947."

Plaintiff's petition seeks to set the transaction aside on the ground of fraudulent representations alleged to have been made by defendant concerning the business done at the filling station. There is a sharp conflict in the testimony on this issue and on other matters occurring before and after the trade. The filling station was rented by defendant to John Cook on the basis of one cent per gallon of gasoline sold. Defendant operated the restaurant himself. Mederacke testified that defendant told him that the station did a business of 55,000 to 60,000 gallons per month and also said that the restaurant did a gross business of $2500 to $2700 per month. According to Mederacke, defendant proposed the deal and had the contract prepared. According to defendant, Mederacke proposed the deal before he had ever seen his Morgan County land. He said that Mederacke urged the trade and got him to visit his resort. It was shown that the contract was prepared at an office in St. Louis where Mederacke was acquainted; that his attorney was present when the deeds were prepared; and that this attorney had the provision, about tolling principal payments in the case of government regulations closing the filling station, inserted in the trust deed. Defendant's testimony was that he told Mederacke that the filling station was selling from 35,000 to 38,000 gallons per month, bringing him a monthly return of about $350. He said that he showed Mederacke the book on the restaurant business and that it showed about $2000 per month. The records of the State Oil Department show gasoline sales as follows: In January (1942) the gallons received were 32,347; in February, 32,402; in March, 43,441; in April, 40,002; in May, 49,187; in...