Heath v. Beck

• Decision Date: 04 June 1918
• Docket Number: No. 15015.,15015.
• Citation: 204 S.W. 43
• Parties: HEATH v. BECK.
• Court: Missouri Court of Appeals

204 S.W. 43

HEATH v. BECK.

No. 15015.

St. Louis Court of Appeals. Missouri.

Submitted on Briefs May 7, 1918.

Opinion Filed June 4, 1918.

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

"Not to be officially published."

Petition by Richard Heath against George Beck. Decree for plaintiff, and defendant appeals. Case transferred to the Supreme Court.

Hans Wulff and John A. Porter, both of St. Louis, for appellant. Geo. H. Brooks, of Webster Groves, and Jos. C. McAtee, of Clayton, for respondent.

PER CURIAM.

The petition in this case is in two counts, the first in equity. In that count it is averred that in consideration of $350, plaintiff had purchased of the defendant a tract of ground, part of United States survey 1953, in St. Louis county, described, as also two strips of ground described, these two strips, as we understand, intended for a roadway connecting the lot which plaintiff bought with certain laid out streets or roads; that as an inducement to have plaintiff purchase the main lot, the defendant had represented to plaintiff that he would lay out and locate this roadway along it and on the remaining portion of defendant's tract so as to give to plaintiff an outlet from his property which he would not otherwise have, over and across the tract owned by defendant. It is averred that on April 13, 1909, "defendant drew up a written agreement, containing the aforementioned conditions, and brought it to plaintiff to sign; that said written instrument did not contain the agreement between plaintiff and defendant with reference to said roadway, but that defendant again represented to plaintiff that he would lay out and establish the same in the manner aforesaid if he (plaintiff) would sign said agreement and pay to him the said $50, and agree to pay the remaining $300 in installments and with interest as aforesaid; that plaintiff, believing the said representations to be true and relying upon the promises of defendant as aforesaid, signed said agreement, paid to defendant the said sum of $50 at said time and afterward paid to him the remaining $300, with interest at the rate of 6 per cent. per annum until paid and that defendant accepted and retained the same." That upon the payment of this balance due, defendant executed to plaintiff a warranty deed to the premises, which was filed for record in the proper office and that at the time of making this last payment and at each and every intervening payment, the defendant always assured plaintiff that he would lay out and establish the roadway before stated, and that, relying upon these promises, plaintiff had accepted the deed, which did not contain the agreement for said roadway; that defendant alterwards, in pursuance of the above agreement, caused a surveyor to make a plat of the tract and to reserve the roadway described but did not file the same of record and had...