Heald v. Erganian, 49838
| Decision Date | 09 March 1964 |
| Docket Number | No. 1,No. 49838,49838,1 |
| Citation | 377 S.W.2d 431 |
| Parties | Hallard HEALD, (Plaintiff) Respondent, v. Nick ERGANIAN and Rose Erganian, (Defendants) Appellants |
| Court | Missouri Supreme Court |
Louis Kranitz, Theodore M. Kranitz, St. Joseph, for appellants.
Merrill M. Steeb, St. Joseph, for respondent.
Action in equity to quiet and determine title to described real estate in the City of St. Joseph, Buchanan County, Missouri, and for partition, with a counterclaim by the defendants for goods sold and delivered to plaintiff. The two counts of the petition and also the counterclaim were tried to the court in one proceeding and the court found that plaintiff Hallard Heald and Nick Erganian were each the owners of an undivided one-half interest in and to the described property; that the property was subject to certain liens in favor of defendant Nick Erganian for purchase money furnished; and that plaintiff was indebted to defendants in the sum of $257.60 on the counterclaim for goods purchased from defendants. The court found that the property could not 'be equitably divided between the parties in kind without a sale' and ordered a sale in partition and a division of the proceeds in accordance with the court's decree. Defendants filed a motion for a new trial, which was overruled and they have appealed.
This court has jurisdiction of the appeal since the decree determined title adversely to defendants (husband and wife) who claimed ownership of the described property and denied that plaintiff had any The subject matter of the action to quiet title consisted of six particularly described lots located in the City of St. Joseph. Four of the lots are referred to as the 'used car lots' and were located at the intersection of Lake and Colorado Streets. The other two lots are referred to as adjoining or near the Erganian store.
interest therein. State ex rel. Brown v. Hughes, 345 Mo. 958, 137 S.W.2d 544, 545; Ray v. Nethery, Mo.Sup., 255 S.W.2d 817, 819.
It was admitted that the 'used car lots' had been conveyed to the defendants (husband and wife) by John E. and Alice A. Smith in August, 1960; and that the two lots adjoining the store had been conveyed to defendants by a deed 'regular in all respects' executed by the Cramer heirs.
Plaintiff alleged that he had entered into an oral contract with Nick Erganian for the purchase and sale of the described real estate, which contract had been repudiated by defendants and that plaintiff was the owner of a one-half interest in the described property subject to certain purchase money liens, as hereinafter stated. The petition described the relationship existing between the parties resulting from the alleged oral agreement and the subsequent conduct of the parties as a joint venture. We think the descriptive term applied to the legal relationship between the parties and resulting from the alleged oral agreement and the conduct of the parties to be wholly immaterial. The existing legal relationship between the parties must be determined from the evidence.
Much of this record consists of the testimony of witnesses who personally appeared before the trial court, although some facts were stipulated as to the deeds and the deposition of one witness was read to the court. In reviewing this case on appeal, we are of course governed by Supreme Court Rule 73.01(d), V.A.M.R. as follows: This rule is particularly applicable to certain assignments of error presented to us on this appeal.
Plaintiff Hallard Heald was engaged in the 'used car' business and he also operated a drive-in theatre in St. Joseph. Nick Erganian owned and operated a grocery store.
Plaintiff testified that in July or August, 1960, he had a conversation with Mr. Erganian at the meat counter in defendants' store about the property located at the intersection of Lake and Colorado, and suggested that it was a good buy and that he was going to buy it, since plaintiff had to move his business from its then location. Mr. Erganian said that he was also interested in buying property in south St. Joseph. He suggested that, if plaintiff would find suitable property, they could buy it and they 'would be partners.' Plaintiff told him that he already had the deal worked out on the Lake Street lots and Mr. Erganian stated that, if he would furnish the money and that if we 'would sell the lots at a profit, we would split, or any other property we bought or sold or leased, whatever we made off it, we would split the money.' As stated, plaintiff had contacted the owner of these lots before this discussion and the deal was consummated at the E. L. Smith office. Plaintiff had discussed the matter with Mr. Erganian three or four times and advised him 'that the lots were tax title property.' The price agreed on was $1000 but eventually only $900 was paid. The reduction in price was the result of plaintiff's negotiation with the owner and the recognition by the parties that the tax title would have to be quieted and determined. Plaintiff testified: 'Title to the After the property was purchased plaintiff took possession of it and had certain advertising signs owned by the Hargrove Advertising Company removed, the property graded and graveled and a used car sales office built thereon. Subsequently, plaintiff and Mr. Erganian negotiated with one George Herring with reference to building a building on the property to house a laundromat and to lease the property to an operator. Plans were drawn and figures obtained at Mr. Erganian's request, but ultimately the proposition was rejected. Plaintiff testified: 'Nick told Mr. Herring that we had the plans for the building and the cost of it and that Nick and I would have to discuss it and we would let him know about building the building.' Although plaintiff was using the Lake Street lots during this period he did not pay any rent and no rent was demanded of him and nobody requested possession of the property.
lots were put in Mr. Erganian and his wife's names because I had no collateral.' Plaintiff delivered defendant Erganian's $900 check, received the deed and took it to defendants.
Subsequently, one Hubert Munsell wanted to acquire the Lake Street Property and he had a conference with plaintiff and Mr. Erganian. Mr. Munsell offered $3500 for this property, less Munsell's fee of $200. Mr. Erganian told Mr. Munsell at the conference that whatever plaintiff decided to do would be all right with him. Later, Mr. Erganian told plaintiff that he felt they could get the $200 if they waited a while, and, if so they would sell; however, the purchaser did not increase the bid and the property was not sold. At that time Mr. Erganian had invested approximately $1350 in these lots and plaintiff wanted them sold and the profits divided. Thereafter, plaintiff signed a contract with the Hargrove Advertising Company to reinstall some signs on the lots. He also collected the rent and Mr. Erganian was not consulted. Plaintiff paid no taxes on these lots, since the taxes were paid by the Hargrove Advertising Company.
Thereafter, in the spring of 1961, plaintiff located a piece of property on King Hill at Kansas Avenue which he thought was suitable to buy. It belonged to one Robert L. King. Plaintiff discussed the purchase of this property with Mr. Erganian, since the property could be acquired for $3300 and leased back to King for $75 per month. Mr. Erganian wanted to inspect the property and did so with plaintiff. Mr. Erganian said it was a good deal and that 'we will buy it.' He gave plaintiff $100 in cash to close the deal. However, when plaintiff went back to see Mr. King, King said he would have to discuss the proposition with his wife. As a result, the deal could not be closed and plaintiff returned the $100 to Mr. Erganian.
Thereafter, Mr. Erganian told plaintiff that he would like to own the two lots on the north of his store since he wanted the property for a parking lot. He told plaintiff that he had tried to buy the property some four years earlier but could not. He asked plaintiff to find out who owned the property and if it could be purchased. Plaintiff contacted the owners and negotiated with them on the price, had the deed prepared, naming defendants as grantees, and the deal was closed in the office of plaintiff's attorney, and in the presence of Mr. and Mrs. Cramer, plaintiff and Mr. Erganian. When they met together plaintiff introduced Mr. Erganian to Mr. and Mrs. Cramer as Mr. Erganian made no objection to the statement in his presence that 'he is my partner.' The payment of $2000 was made with Mr. Erganian's check.
Subsequently, plaintiff asked Mr. Erganian to sell the respective properties they had acquired and Mr. Erganian admitted that he owed plaintiff money and offered to pay plaintiff $1500 for his interest in the properties they had acquired, but no payment was made.
On cross-examination of plaintiff it appeared that it was a part of the original deal to have the title to the Lake Street lots quieted and determined in the name of Mr. Erganian and his wife. Suit was brought by attorney Don Pierce. Plaintiff's present counsel represented the unknown defendants in that action. Plaintiff was not a party to that suit and did not pay the court costs, cost of publication, nor the attorney's fee, but plaintiff had consulted the attorney, ascertained the cost of a quiet title suit and had obtained a...
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