Jenni v. Gamel, 41459

• Court: Missouri Court of Appeals
• Writing for the Court: STEWART; KELLY, P. J., and SNYDER
• Citation: Jenni v. Gamel, 602 S.W.2d 696 (Mo. App. 1980)
• Decision Date: 27 May 1980
• Docket Number: No. 41459,41459
• Parties: Robert N. JENNI and Helen A. Jenni, Plaintiffs-Respondents, v. John M. GAMEL et al., Defendants, E. R. B. Land, Inc., a Missouri Corporation, Defendant-Appellant.

Page 696

602 S.W.2d 696

Robert N. JENNI and Helen A. Jenni, Plaintiffs-Respondents, v. John M. GAMEL et al., Defendants E. R. B. Land, Inc., a Missouri Corporation, Defendant-Appellant.

No. 41459.

Missouri Court of Appeals, Eastern District, Division One.

May 27, 1980.

Motion for Rehearing and/or Transfer to Supreme Court Denied

July 18, 1980.

Application to Transfer Denied Sept. 9, 1980.

Benson Cytron, House Springs, for defendant-appellant.

Myron Gollub, Frank Hamsher, St. Louis, for plaintiffs-respondents.

STEWART, Judge.

This case is before us for the second time after a retrial. See Jenni v. E.R.B. Land, Inc., 541 S.W.2d 743 (Mo.App.1976).

In this court-tried case defendant E.R.B. Land, Inc. (E.R.B.), the record owner of certain real estate, appeals from a judgment of the circuit court that in essence impressed a lien upon the real estate to secure an indebtedness owed to plaintiffs as evidenced by a note and unrecorded deed of trust executed by the four Gamel defendants (Gamels).

It is contended by E.R.B. that the trial court erred (1) "in granting plaintiffs a lien for a purported debt because the plaintiffs had not been vigilant in protecting their interest . . . ," (2) in establishing a lien against the interest conveyed by David Gamel because there was no evidence that he had executed a contract to purchase or a note, or other evidence to support the relief granted, (3) in holding that plaintiffs' lien was superior to a $5,000.00 deed of trust because plaintiffs made no such claim in their pleadings.

Our review of this case has been hampered by the fact that we have been furnished with only one of the thirty exhibits used in the case. ¹ We must assume that the exhibits are favorable to the trial court's findings. Paulsen v. Harold Tippett Oil Co., 593 S.W.2d 615 (Mo.App.1980).

Plaintiffs were the owners of a 201 acre farm in Jefferson County. In 1965 they sold one acre to the City of Festus. In July, 1966, they sold 122 acres of the farm to Robert Williams of Sunset Realty Company for $29,000.00. Mr. Williams was making the purchase for Vigus Quarries.

In August of 1966 the plaintiffs negotiated with John M. Gamel and his wife Mildred for the sale of the remaining 78 acres that contained a two story frame house, two garages, smoke house, two chicken houses, dairy barn and stable, large hay shed, corn crib, milkhouse and three machine sheds for $39,000.00. The Gamels arranged for and paid an attorney to draw up the contract of sale, a note and deed of trust. The contract called for a down payment of $5,000.00 with the balance of $34,000.00 to be paid in monthly installments of $219.80 over a period of 25 years. The obligation was to be secured by a note and deed of trust "on said premises, in the form ordinarily used in this State." The parties met at the attorney's home on August 12, 1966 where the contract was executed. John M. Gamel, Mildred Gamel, his wife, and their son John C. Gamel signed the contract. John M. Gamel signed the contract for his son David Gamel. The note and deed of trust were signed in the same manner. The Gamels and plaintiffs received an amortization table. Plaintiffs received the note but they did not receive the deed of trust. The deed of trust was never recorded. Shortly after the day they were in the attorney's home the plaintiffs received a warranty deed to the premises making transfer to the Gamels. They executed the deed before a notary public and delivered the deed to the Gamels in accordance with the instructions contained in a letter from the lawyer.

In order to make the down payment the Gamels borrowed $5,000.00 from John M. Gamel's father for which they executed a note and deed of trust dated November 26, 1966. The deed of trust was subsequently recorded.

The Gamels experienced financial difficulties in 1968. No payments were made upon the $5,000.00 note held by John M. Gamel's parents, John W. Gamel and his wife Halcie. Payments of $5,915.16, of which $1,415.01 was repayment of principal, were made on the Jenni note. The last payment on that note was in October of 1968. There was a principal balance due of $32,584.99 at that time. The Gamels advised Mr. Jenni of their problems and told him that they would try to sell the farm and pay off the note.

In early 1969 Halcie Gamel called Mr. Robert Williams and told him she and her husband had a note for $5,000.00 secured by a deed of trust on the real estate that is the subject of this action. She explained that the note was signed by her son, daughter-in-law, and two grandsons; that nothing had been paid on the note and that they needed money but did not want to take legal action against the family members. Mr. Williams contacted the president and sole stockholder of E.R.B. and told him that the note and deed of trust could be purchased for around $3,500.00. Mr. Williams was told to go ahead with the purchase. Mr. Williams purchased the note and deed of trust on behalf of E.R.B. for $3,450.00 on February 5, 1969.

When Mr. Williams delivered the check and received the note and deed of trust he met Mildred Gamel, who advised him that the Gamels were thinking of selling the farm. Mr. Williams as the agent for E.R.B. subsequently negotiated for the purchase of the farm from the Gamels. His contacts were primarily with Mildred Gamel.

Mr. Williams conferred with Mrs. Gamel on two or three occasions. He was aware that only the deed of trust to John W. Gamel and Halcie Gamel was recorded. Mr. Williams was advised that there was still some $32,000.00 due plaintiffs for the purchase of the farm. They agreed that the Gamels would accept $2,000.00 for their "equity" in the property and the purchaser would pay Mr. Jenni the balance due. Mildred Gamel testified that on one occasion while discussing the sale of the property to Mr. Williams' principal she said to him "(n)ow that cancels that five thousand dollar note that you bought from my father-in-law and that pays off Mr. Jenni and that gives us our money for the equity. He said, yes, that is right." Mrs. Gamel showed Williams the amortization table upon which she had made a record of the payments the Gamels had made and indicated the amount still owed. She offered to give him the amortization table. He advised her that the schedule would not be needed because "(w)e would just take care of the whole sum with Mr. Jenni."

Upon reaching this agreement Mr. Williams prepared an option contract to purchase the property which was signed by John M. Gamel and Mildred Gamel. Subsequently Mr. Williams signed the name of the president of E.R.B. on behalf of E.R.B., acknowledged it, and placed it of record. He then prepared three quit-claim deeds and took them to Mr. and Mrs. John M. Gamel. Mr. and Mrs. John M. Gamel signed one of the deeds. Mr. Gamel signed as attorney in fact for his son, John C. Gamel. The third deed was sent to David who was then 22 years of age and living in California. David and his wife executed the deed on February 17, 1969.

There is evidence that Mr. Jenni was advised by Mrs. Gamel that they had a buyer for the farm and that he would get his money in a lump sum. Because Mr. Jenni did not want to be paid in a lump sum, for tax purposes, he called Mr. Williams and Mr. Williams told him to forward the information concerning the payments and balance due. Mr. Jenni then sent a letter to Mr. Williams setting forth the amount of monthly payments and advising him of the balance then due. Mr. Williams returned the letter with a note telling him he would have to speak to the president of the purchaser. E.R.B. refused to recognize any interest of plaintiffs in the farm.

E.R.B.'s first point on appeal reads "The Trial Court Erred in Granting Plaintiffs a Lien for a Purported Debt Because the Plaintiffs Had Not Been Vigilant in Protecting Their Interest, and the Failure to Obtain a Lien Was the Result of Their Negligence."

E.R.B. did not plead the theory it now espouses. The only affirmative defense pleaded by E.R.B. was the statute of limitations. It did not seek to have its answer amended so as to bring this defense to the attention of the trial court. E.R.B.'s requested findings of fact do not cover this defense. The court did not adjudicate the issue. While E.R.B. was not required to file a motion for new trial and it is not restricted because it did so we still do note that no mention of the present theory of defense was brought to the court's attention in that motion. A party may not change his theory of the case upon appeal. We must consider the case on the same theory upon which it was tried in the trial court. Grimes v. Armstrong, 304 S.W.2d 793, 799 (Mo.1957). McIlroy v. Hamilton, 539 S.W.2d 669 (Mo.App.1976). The issue sought to be raised by E.R.B.'s first point is not before us for our consideration.

For its second point E.R.B. contends that the court erred in establishing a lien in plaintiffs' favor on the interest in the real estate that was conveyed to E.R.B. by David Gamel because there is no evidence that David became obligated to plaintiffs or encumbered his interest in the real estate. Plaintiffs rely primarily upon the answer filed on behalf of John M. Gamel, Mildred Gamel, John C. Gamel and David Gamel. The answer admits that "they" executed and delivered a note in the amount of $34,000.00 secured by deed of trust to plaintiffs. Plaintiffs contend that these allegations constitute a conclusive judicial admission by David Gamel that is binding upon E.R.B., even though plaintiffs introduced evidence to the contrary. Plaintiffs cite us no authority for this assertion nor can we find such authority. It is generally held that the admission of a fact in the pleading dispenses with the necessity of proof of that fact. Wehrli v. Wabash Railroad Co., 315 S.W.2d 765, 773 (Mo.1958). The admission of a fact by a party in his pleading however, is not binding upon him when his adversary does not rely upon the...