Herold v. Pioneer Trust Co.

• Decision Date: 12 June 1922
• Docket Number: No. 14438.,14438.
• Citation: 242 S.W. 124,211 Mo. App. 194
• Parties: HEROLD et ux. v. PIONEER TRUST CO.
• Court: Missouri Court of Appeals

242 S.W. 124

211 Mo. App. 194

HEROLD et ux. v. PIONEER TRUST CO.

No. 14438.

Kansas City Court of Appeals. Missouri.

June 12, 1922.

Appeal from Circuit Court, Jackson County; Thad. B. Landon, Judge.

Action by Charles W. Herold and wife against the Pioneer Trust Company. Verdict and judgment for the plaintiff, and the trial court sustained defendant's motion for a new trial, and the plaintiffs appeal. Affirmed.

Ed E. Aleshire and V. E. Phillips, both of Kansas City, for appellants.

Scarritt, Jones, Seddon & North, of Kansas City, for respondent.

BLAND, J.

Plaintiff recovered a verdict and judgment in the sum of $687.50. The trial court sustained defendant's motion for a new trial giving as a reason therefor "that the court erred in refusing to direct a verdict for defendant as requested by defendant," and plaintiffs have appealed. Defendant at the close of plaintiffs' evidence offered an instruction in the nature of a demurrer to the evidence, which the court overruled. Defendant did not put on any testimony, but the case was submitted to the jury upon instructions for both parties. Plaintiffs offered no instruction upon any theory of recovery, but contented themselves with having the court give an instruction on the measure of damages.

The facts show that plaintiffs were husband and wife and defendant a corporation having a real estate department. Defendant had for sale a lot having a duplex house situated thereon in Kansas City, Mo. This property was owned by a nonresident, a Mrs. Frances Thomas. Schutzel, an employee of the defendant, showed the lot to plaintiffs and represented that it extended back to the center of a vacant alley. Plaintiffs purchased the property, and on July 8, 1919, a contract of sale was executed wherein it is recited that the premises were to be conveyed by Porter Thomas, that the contract was being made by him as principal, and that the property extended to the center of a vacant alley. The purchase price was $5,500; $100 was paid and receipted for, and $900 was to be paid in cash on delivery of a deed. The property was to be conveyed subject to a deed of trust to secure $4,500. The contract was signed as follows:

"Porter Thomas, by Pioneer Trust Co., Agents, by Emil J. Schutzel. Charles W. Herold. Lillian M. Herold."

Porter Thomas was the husband of Frances Thomas, and apparently acting as her agent in the transaction. Upon the signing of the contract plaintiffs moved into the house and made a change in the heating plant. An abstract of title was furnished plaintiffs' attorney, who examined it and found a deed of trust which he required should be released. This objection was fully met. The examining attorney then found the title to be acceptable, and that Mrs. Thomas was the owner of the property described in the abstract. However, such description did not cover 27½ feet of ground that was required to bring the lot back to the middle of the alley. The house was situated upon the land actually owned by Mrs. Thomas, and no part of it was on the 27½ feet not so owned. The examining attorney, not seeing the contract, assumed that his clients were purchasing only the amount of property described in the abstract of title.

On the last week of August the transaction was finally closed up in the office of plaintiffs' attorney. Plaintiffs, being engaged and not being able to attend to the matter, sent the mother of plaintiff Lillian M. Herold to close the transaction. After certain adjustments were made a check was given by Mrs. Cameron, the mother, for the net balance of $900 and a deed from Mrs. Thomas and husband delivered to Mrs. Cameron. This deed covered the property described in the abstract, but not as much as that described in the contract. Mrs. Cameron took it home, and on an examination of it plaintiffs found that it did not cover the amount of land they had bought. They took the matter up with Mr. Schutzel, who said that there was a mistake, and that it should be corrected. Plaintiffs' attorney called upon defendant, and was told by an agent of the defendant that, if the parties were not satisfied and would return the deed, defendant would return the $1,000 upon surrender of the contract, provided that plaintiff would waive any damages. Plaintiffs refused to do this, and this suit resulted. The warranty deed to the property was recorded on September 8, 1919.

We are unable to ascertain from the petition on what theory this suit is bought. The petition pleads, to a great extent, merely evidentiary matter and contains contradictions of a destructive nature. The petition is undoubtedly subject to demurrer, and it is doubtful if it can be construed even after verdict as stating any cause of action. However, the petition does ask damages "by reason of their (plaintiffs') not getting the land described in defendant's contract with them, to wit, 27½ feet."

The evidence, however, does not sustain any theory which would render defendant liable. From plaintiffs' brief we assume that they are attempting to recover on the theory that defendant sold them the 27½ feet of ground without any authority from Mrs. Thomas, and that defendant was guilty of false representations as to the amount of land contained in the lot and would be liable even though it had authority to sell the 27½ feet of which Mrs. Thomas had no title. Of course, there could be no recovery against the defendant in a suit upon the contract itself as the contract purported to have been made by the defendant as agent. Byars v. Dooer's Adm'r, 20 Mo. 283, 285; Hotel...