Janus v. Olive Street Terrace Realty Co.

• Decision Date: 06 June 1917
• Docket Number: No. 14747.,14747.
• Citation: 196 S.W. 81
• Parties: JANUS v. OLIVE STREET TERRACE REALTY CO.
• Court: Missouri Court of Appeals

196 S.W. 81

JANUS v. OLIVE STREET TERRACE REALTY CO.

No. 14747.

St. Louis Court of Appeals. Missouri.

June 6, 1917.

Rehearing Denied June 29, 1917.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

"Not to be officially published."

Suit by Frank W. Janus against the Olive Street Terrace Realty Company. From a judgment for plaintiff, defendant appeals. Affirmed.

D. D. Holmes, of St. Louis, for appellant. Emerson E. Schnepp, of St. Louis, for respondent.

ALLEN, J.

On May 2, 1911, plaintiff and the defendant corporation entered into a written contract for the sale by defendant to plaintiff of two lots of ground in St. Louis county, to wit, lots 9 and 10 of block 5, fronting upon "George street," in Olive Street Terrace, a subdivided tract in St. Louis county, for the sum of $1,200. Plaintiff paid defendant $60 in cash, and by the terms of the contract agreed to pay the remainder of the purchase price in monthly installments for which he executed a series of promissory notes for $20 each, bearing interest at the rate of 5 per cent. per annum, payable to the American Trust Company, the trustee in a certain deed of trust to which the lots were subject. The trust company indorsed upon the contract an agreement to release the lots from the lien of the deed of trust when the purchase price had been paid. By the contract defendant covenanted to convey the lots to plaintiff by warranty deed upon full compliance by plaintiff with the terms of the contract to be performed by him. Prior to the institution of the suit, filed on November 15, 1913, plaintiff paid to the trust company the sum of $702.74 under the contract. Thereafter, and prior to the trial below, he paid six additional notes of $20 each, with the interest due thereon. Two of these six notes, due in December, 1913, and January, 1914, respectively, were paid to the trust company; the remaining four, falling due in February, March, April, and May, 1914, respectively, appear to have been paid at the office of the defendant, but they had not been indorsed to defendant by the trust company to which they were made payable.

The suit is one in equity seeking the rescission and cancellation of the contract, a recovery of the sums paid to defendant by plaintiff thereon, and the cancellation and delivery to plaintiff of the notes remaining unpaid, or if negotiated by defendant to a holder for defendant without notice, then a recovery of the amount for which plaintiff would remain liable thereon, on the ground of fraud alleged to have been perpetrated upon plaintiff by defendant through its agent.

The averments of the petition respecting the fraud alleged to have been perpetrated upon plaintiff are as follows:

"Plaintiff further states that immediately prior to entering into said contract defendant by its duly authorized agents, upon his inquiry, represented to and informed plaintiff that the aforesaid George street, upon which the aforesaid lots face or front, was laid out as and was a street of the width of Backer street, an adjoining street, and the usual width of the other streets of the said Olive Street Terrace, to wit, forty (40) feet, and that dwelling houses were to be erected on both sides of said George street facing or fronting on it; that said George street was not at said time a constructed street, nor was there anything on the site of said street, nor was there a plat thereof accessible to plaintiff to fix the width of said street, determine its true kind of construction or whether the front or rear of the lots on the side of said street opposite the aforesaid lots 9 and 10 faced or bordered on said George street, but, believing and relying upon the aforesaid representations and information of defendant as to the said George street and the width and kind thereof, and desiring said lots upon which to build a house to be used by himself as a home, he entered into said contract with defendant and made the payments as aforesaid.

"Plaintiff further states that the aforesaid representations and information given him by defendant were untrue in this, that the aforesaid George street on which the said lots 9 and 10 fronted is and was at said time a narrow street or alley 20 feet in width without any sidewalks, utterly inadequate for general street purposes, unfitted by reason of its narrow construction as a street upon which to build a house or erect a home, by reason thereof the aforesaid lots 9 and 10 are and were of little or no value for residence purposes, and are now unsalable, and by reason thereof houses are now being constructed on the opposite side of the street from said lots with the rear parts thereof and the sheds of said lots fronting upon said George street, thereby further depreciating the value of said lots, all which said facts defendant, by and through its agents, well knew at the time of making the aforesaid representations, but wrongfully and fraudulently made said untrue representations and gave said wrongful information regarding said street to plaintiff for the purpose of inducing plaintiff to enter into said contract and thereby cheat and defraud him of the purchase price thereof," etc.

The answer of defendant, admitting the execution of the contract and the payment by plaintiff of the sums thereby required to be paid by him, denies the making of the false representations alleged, and denies that at the time of the execution of the contract no plat was accessible to plaintiff whereby to determine the width and character of George street, averring that a plat of "Oliver Street Terrace" was then of record, showing that street to be 20 feet in width, and likewise a plat of the "W. L. Musick subdivision," an adjoining tract, showing that the lots therein abutting on George street—i. e., on the side thereof opposite to that upon which were located the lots purchased by plaintiff—did not front upon or face that street. And it is further averred that prior to entering into the contract plaintiff visited the premises in question; that two houses were in course of construction in said adjoining subdivision on lots abutting on George street, which houses did not front on George street, but faced the other way; and that plaintiff "saw, or by the exercise of reasonable care could have seen," that houses to be built on George street opposite to his lots were not to face that street. And it is averred that all the facts concerning the location of the lots purchased by plaintiff, the width of George street, and the frontage of the opposite lots, were made known to plaintiff at the time of the execution of the contract; and that all the facts concerning the same were available to plaintiff and could have been ascertained by him by a consultation of the aforesaid plats of record.

Plaintiff purchased the lots for the purpose of building thereon a home. He testified that he answered an advertisement of defendant, and that an agent of defendant came to see him; that later, and shortly prior to the execution of the contract, plaintiff went with the agent to examine the property which defendant was selling; that the land was "an open field," with nothing to indicate the width of "George street"; and that he saw nothing to make it appear that the lots across the street did not face thereon. Respecting the representations of the agent as to the width and character of "George street" plaintiff testified that, in response to his inquiry, the agent said that the street was to be like others to which he pointed, the width and character of which were apparent. The plats and the testimony show that all of the other streets of defendant's tract, parallel with "George street," are 40 feet wide, while those of the adjoining subdivision are either 50 or 60 feet in width. However, what is termed George street is in fact a narrow way or alley, but 20 feet wide, in the rear of the lots abutting thereon in the adjoining subdivision. But it appears that plaintiff did not learn this until some time in the summer of 1913; and that upon making this discovery he and his brother interviewed the president of defendant company. Plaintiff testified that defendant's...