Health v. Beck

• Decision Date: 03 May 1921
• Docket Number: No. 15015.,15015.
• Citation: 231 S.W. 657
• Parties: HEALTH v. BECK.
• Court: Missouri Court of Appeals

231 S.W. 657

HEALTH v. BECK.

No. 15015.

St. Louis Court of Appeals. Missouri.

May 3, 1921.

Rehearing Denied June 7, 1921.

Appeal from Circuit Court, St. Louis County; G. A. Wurdeman, Judge.

"Not to be officially published."

Action by Richard Heath against George Beck. Judgment for plaintiff, and defendant appealed to the Court of Appeals, which transferred the cause to the Supreme Court (204 S. W. 43), but the cause was subsequently retransferred to the Court of Appeals (225 S. W. 993). Affirmed.

Hans Wulff and John Porter, both of St. Louis, for appellant.

George H. Brooks, of Webster Groves, and Joseph C. McAtee, of Clayton, for respondent.

BIGGS, C.

This cause, having been transferred to the Supreme Court (204 S. W. 43), was retransferred here, as that court concluded after an examination of the record that title to real estate was not involved (225 S. W. 993). In the Supreme Court opinion referred to, the substance of the pleadings and issues in the cause are stated thus:

"The petition is in two counts. The first alleges that respondent bought from appellant a parcel of land in St. Louis county for a money consideration of $350, and bought it upon the representation that appellant would plat the rest of the same tract in such manner as to afford respondent an outlet from his parcel to a roadway running over appellant's property and connecting with a public road; that upon this representation appellant finally prevailed upon respondent to purchase the parcel mentioned at the price stated, payable in installments; that a written agreement was drawn which embodied the contract to purchase, except that it did not contain the agreement concerning the roadway appellant has promised to secure to respondent; that appellant repeated his assurances and thereby induced respondent to sign the agreement as presented; that in November, 1909, respondent made final payment, and appellant executed and delivered to him a warranty deed to the land; that upon the receipt of each installment and the final payment appellant repeated his assurances and representations, and respondent relied thereupon in making the payments and in accepting the deed, which did not contain an agreement for the roadway; that appellant caused the tract he retained to be surveyed and a plat to be made which showed a roadway as orally agreed, but did not file the plat, and afterward sold the property without reserving a roadway and without notifying the purchaser of the existence of the oral agreement therefor. It is then alleged that respondent's property is valueless without the roadway; that appellant's failure to reserve an outlet for respondent's benefit was in fraud of respondent's right, and respondent is without an adequate remedy at law; that the representations were made to deceive respondent and defraud him and accomplished that purpose; that a reformation of the written agreement to cause it to include the provision concerning the outlet is necessary in order to prevent appellant from succeeding in working a fraud upon respondent. The prayer is for such a reformation of both the agreement and the deed.

The second count incorporates or purports to incorporate the facts set up in the first count, and then states that, `relying upon the promise of defendant to furnish him an outlet and roadway to said premises as therein described, plaintiff purchased from defendant a strip of land,' which the petition then describes, `and paid him therefor the sum of $350. Plaintiff states that, contrary to the said agreement and the terms thereof, defendant has failed and refused and still fails and refuses to furnish him with said outlet; that he as sold the property over which it was to be established to one Wolff, without notifying the said Wolff of the said agreement; that the said property is valueless; and that by reason of the premises plaintiff has been damaged in the sum of $350,' for which judgment is prayed. On the first count the trial court reformed the agreement and the deed as prayed. On the count for damages the court rendered judgment for respondent for $300."

The so-called equity count and the second count which sounds at law for damages were tried separately. After a hearing on the !first or equity count there was a decree for respondent reforming the agreement and deed, after which appellant filed a motion for a new trial. Later on the cause was heard on the second count for damages, and the court, as stated, rendered judgment for respondent on that count.

Thereafter a motion for new trial being overruled, the appellant brings the cause here by the short method of appeal, but failed to file in this court a certified copy of the decree rendered on the equity count as required by section 1479 of the R. S. of 1919, but did file a certified copy of the judgment for damages rendered on the second count. The court's decree, however, is copied in appellant's abstract of the record. Under such circumstances, the only judgment properly before us for review is the judgment for damages on the second count of the petition. The certified copy of the order granting the appeal filed here...