Killian v. Albert Wenzlick Real Estate Co., 23457.

• Decision Date: 07 January 1936
• Docket Number: No. 23457.,23457.
• Citation: 89 S.W.2d 716
• Parties: KILLIAN et al. v. ALBERT WENZLICK REAL ESTATE CO.
• Court: Missouri Court of Appeals

89 S.W.2d 716

KILLIAN et al. v. ALBERT WENZLICK REAL ESTATE CO.

No. 23457.

St. Louis Court of Appeals. Missouri.

January 7, 1936.

Rehearing Denied January 21, 1936.

Appeal from St. Louis Circuit Court; Claude O. Pearcy, Judge.

"Not to be published in State Reports."

Action by Linnet Killian and another against Albert Wenzlick Real Estate Company. From an adverse judgment, the defendant appeals.

Reversed and remanded.

Cobbs & Logan and Walter L. Roos, all of St. Louis, for appellant.

Gus O. Nations, of St. Louis, for respondents.

BENNICK, Commissioner.

This is an action brought by the principals against their agent to recoup a loss alleged to have been sustained by them in and as the consequence of a certain real estate transaction negotiated for them by their agent. The petition counted upon both the fraud and the negligence of the agent as we shall presently show, though in the submission of the case the court restricted plaintiffs to the theory of negligence, and refused their requested instructions based upon the idea of their agent's fraudulent misrepresentations regarding the value of the property acquired. The verdict of the jury was for plaintiffs, and against defendant, in the sum of $6,250; and defendant's appeal to this court has followed in the usual course.

The issues involved on this appeal make the precise averments of the petition of more than the usual importance, and so we quote the petition in its practical entirety, as follows:

"Plaintiffs say that defendant * * * was at all times hereinafter mentioned engaged in business in the City of St. Louis, Missouri, as a real estate agent and broker, and that defendant represented and held itself out to the public * * * as being capable, faithful, and reliable, and offered its services to the public and those in need of the services of an agent or broker in the purchase, sale, and management of real estate upon such pretense and representation, and solicited employment from the public and particularly from the plaintiffs upon the pretense and representation that defendant, if employed as broker or agent, would faithfully represent its principal and plaintiffs in particular as such agent and broker, and as such agent and broker would completely and faithfully guard the interests of its principal and of plaintiffs.

"And plaintiffs say that because of such representation of defendant, prior to June 15, 1929, plaintiffs employed defendant as their agent and broker to represent them as such * * * in the purchase and sale of three certain tracts or parcels of real estate located at and known at 6565 Tholozan Avenue, 6567 Tholozan Avenue, 6571 Tholozan Avenue, in the City of St. Louis, hereinafter called Tholozan Avenue property.

"And plaintiffs say that thereafter plaintiffs * * * purchased said parcels of real estate * * *; that thereafter defendant, still acting as the agent and broker of plaintiffs, negotiated a sale or exchange of said three parcels of real estate, which were then reasonably valued at Nineteen Thousand Five Hundred Dollars ($19,500.00), subject to incumbrances of Thirteen Thousand Ninety Eight Dollars ($13,098.00) for a certain parcel of real estate located at 6415 Michigan Avenue, hereinafter called Michigan Avenue property, in the City of St. Louis; and defendant, acting as agent and broker for plaintiffs * * * represented to plaintiffs that said Michigan Avenue property was a valuable piece of real estate, that it was improved with a modern factory or commercial building, and that it was leased for a period of five years at an annual rental of Eighteen Hundred Dollars ($1,800.00) per year, that the lessee under said lease was a successful business man of long experience in his business and the owner of a successful business on Lafayette Avenue, and that because of such lease the plaintiffs, if they became the owners of such property, would receive Eighteen Hundred Dollars per year as rent of said property for a period of five years, and that the payment of the rent under such lease was secured, and that said Michigan Avenue property, if accepted by plaintiffs in said exchange for their Tholozan Avenue property, would, because of said lease contract and the rental thereupon, produce for plaintiffs as the owners thereof the sum of Eighteen Hundred Dollars per year for five years, and that because of said lease and the secured rental thereunder the reasonable value thereof was Sixteen Thousand Dollars, subject to an incumbrance thereupon of Eight Thousand Dollars ($8,000.00).

"And plaintiffs say that relying fully upon the skill, knowledge, and advice and the said representations of their said agent, and acting by and through said agent, they exchanged their Tholozan property for the Michigan Avenue property * * * and they paid to defendant as their agent as and for their services as such the sum of Twenty One Hundred Ninety Eight Dollars and Forty-one Cents ($2,198.41).

"And plaintiffs say further that all of the representations of defendant hereinbefore mentioned respecting said Michigan Avenue property were false and untrue; that as defendant then well knew, or by the exercise of reasonable care, skill, and diligence as plaintiffs' agent and broker, could have known, said property was not and is not worth Sixteen Thousand Dollars ($16,000.00), and is and was practically worthless, and was not worth the Eight Thousand Dollars for which it was then incumbered, that as defendant well knew, or by the exercise of reasonable care, skill, and diligence could have known, said Michigan Avenue property was not leased to a successful or experienced business man, but was occupied by a minor, that the lease contract thereon had been executed by the minor, who had neither business experience nor property, business, or money with which to pay the lease rent, and whose contract to pay the lease rent was invalid and unenforceable against him because of his minority; and that as defendant well knew, or by the exercise of reasonable care, skill and diligence could have known, the payment of the lease rent had not been secured. That defendant made said representations and each of them to plaintiffs knowing the same to be false, or without exercising ordinary care, skill, and diligence to ascertain whether or not the same were true, and for the purpose and with the intent to cause plaintiffs to rely thereupon and to exchange their Tholozan Avenue property as hereinbefore related.

"Plaintiffs say that because of the premises they have lost their Tholozan Avenue property and the Twenty One Hundred Ninety Eight Dollars and Forty-one Cents so paid to defendant, and that the equity in the Michigan Avenue property is and was worthless, and that the loss of plaintiffs is due directly to the misconduct, false representations, and negligence of defendant hereinbefore described.

"Wherefore, plaintiffs pray judgment against defendant in the total sum of Eighty Six Hundred Dollars and Forty-one Cents ($8,600.41), with interest on Twenty One Hundred Ninety Eight Dollars and Forty-one Cents from August 15, 1929, and costs."

Thus it is to be observed, as we have already indicated, that the petition commingled in one count a cause of action for fraud and misrepresentations of the agent with a cause of action for negligence of the agent in the discharge of its obligations to its principals. Plaintiffs insist that the gravamen of their charge was one of fraud and deceit, and we have no doubt that they did so intend. However they did nevertheless allege negligence, as but a casual reading of the petition will disclose; and though denying any such original purpose, yet in the course of their brief they are frank enough to admit that a cause of action for negligence, even if not set up in the usual fashion, is at least to be inferred from the allegations of the petition, regardless of the more elaborately stated charge of willful fraud. Of course the petition, inasmuch as it did set out the two distinct theories of defendant's liability for the injurious consequences of the one transaction, should have been drawn by plaintiffs in two counts (Myers v. Adler, 188 Mo.App. 607, 176 S.W. 538), but since the two theories are not contradictory or destructive of one another, the imperfection of their improper blending in one count of the petition was waived by defendant in answering to the merits without an attack upon the petition by proper motion. Sebek v. Wells (Mo.App.) 18 S.W. (2d) 518; Hartz v. Page, 224 Mo.App. 83, 20 S.W.(2d) 701; Hart v. Horine (Mo. App.) 34 S.W.(2d) 524.

The answer which was filed was in the form of a general denial; and with the issues thus joined, the case came on for trial, resulting in a verdict and judgment for plaintiffs, as has been heretofore disclosed.

The nature of the transaction in which defendant purported to act as agent for plaintiffs may, in a general way, be gathered from the facts stated in the petition regarding the relationship existing between and the dealings had by the parties, and for the purposes of this appeal no further reference to the facts of the case will be required, the sufficiency of the evidence to have made a case for the jury not being questioned.

Defendant's chief claim of error is directed to the giving of plaintiff's instruction No. 1, which was as follows: "The Court instructs the jury that the defendant owed the plaintiffs the duty to exercise reasonable skill and ordinary care and diligence to correctly ascertain and accurately report to plaintiffs the facts about the Michigan Avenue property; and by reasonable skill and ordinary care and diligence is meant that degree of skill ordinarily possessed and employed by persons of common capacity and engaged in the same business, and the care and diligence which persons of common prudence are accustomed to use about their own business and affairs; and if you find from the evidence that defendant did not exercise such care, skill, and...