Krueger v. Licklider

• Decision Date: 12 June 1934
• Docket Number: No. 31649.,31649.
• Citation: 76 S.W.2d 113
• Parties: KRUEGER et ux. v. LICKLIDER et al.
• Court: Missouri Supreme Court

76 S.W.2d 113

KRUEGER et ux. v. LICKLIDER et al.

No. 31649.

Supreme Court of Missouri, Division No. 1.

June 12, 1934.

Rehearing Overruled September 18, 1934.

Motion to Transfer to Banc Overruled November 16, 1934.

Appeal from Circuit Court, St. Louis County; Julius R. Nolte, Judge.

Suit by Walter W. Krueger and wife against Arnold R. Licklider and others. From an adverse judgment, plaintiffs appeal.

Affirmed.

Taylor R. Young, of St. Louis E. Mcd. Stevens, of Clayton, and Cullen, Fauntleroy & Edwards, of St. Louis, for appellants.

Max Sigoloff and A. L. Grattendick, both of St. Louis, for respondents.

STURGIS, Commissioner.

This is a suit to cancel and declare void a second deed of trust on a tract of improved land in St. Louis county, and for damages based on defendants' fraud. The money judgment prayed is for $18,000, and that same be declared a lien on certain real estate of the defendants and same be sold to satisfy such judgment. It is also asked that still another tract of real estate be divested out of defendants and vested in plaintiffs, and that a further judgment for $10,000 be rendered against defendants "as punitive damages or smart money." Ancillary relief by way of an injunction and appointment of a receiver to preserve the property during the litigation was also asked. The suit is said to be in equity, and we need not discuss the petition further than to say, as this court once remarked, that in some respects at least "this is a long call on a court of equity." The answers of the various defendants are more extraordinary than the petition, as such answers enumerate sixteen grounds properly reached, if at all, by demurrer or motion, as, for example, that the petition does not state facts sufficient to constitute a cause of action; that several causes of action have been improperly united; that the petition does not state facts entitling plaintiffs to the equitable relief prayed for and shows that plaintiffs have an adequate remedy at law; that it appears on the face of the petition that all of the defendants are not necessary parties, and that there is a defect of parties defendant; also that the court has no jurisdiction of the subject-matter; that it appears from the petition that there is a misjoinder of causes of action, legal and equitable, etc. No question on the pleadings, however, was so presented to the court as to call for a ruling, and the case was tried and submitted on the facts as an equity case. The court heard the facts and entered judgment for defendants dismissing plaintiffs' bill and for costs. Plaintiffs have appealed.

The trial court evidently tried the case with little reference to the pleadings, or rather considered the pleadings as sufficient to authorize an inquiry into the whole transaction complained of, and we will do the same. The record here consists of near seven hundred printed pages, and we will have to condense it as best we can. The fraud complained of grows out of a real estate deal primarily between plaintiff Walter W. Krueger and defendant Arnold R. Licklider, and they will be referred to as plaintiff and defendant, respectively. The defendant was engaged in the real estate business in St. Louis, doing business and contracting in the name of Licklider Realty & Construction Company. In addition to buying and selling real estate for others on a commission basis, collecting rents, managing properties, etc., the defendant was engaged in building on and improving real estate as a building contractor. The plaintiff, Walter W. Krueger, owned a store building on South Broadway in the city of St. Louis in which he conducted a grocery store and meat market, all of which he concluded to sell. We will refer to this as the St. Louis property. As the result of negotiations and contract, defendant sold to plaintiff four lots fronting on Natural Bridge road in St. Louis county and built thereon for plaintiff a building, the first floor of which was to be used for business purposes and with living apartments above, for a total price of $67,000, taking plaintiff's St. Louis property in part payment at $15,000. It is in connection with this transaction that plaintiff alleges fraud was perpetrated on him by defendant entitling him to the relief prayed for.

Plaintiff claims that in this transaction he was not dealing with defendant as a stranger and at arm's length, but that a relation of trust and confidence existed between them. The facts as to this are that plaintiff had never had personal acquaintance with defendant Licklider or had any dealings with him, except that plaintiff some time previous had put on the market a vacant lot in St. Louis at a fixed price and defendant, in connection with another real estate firm, found a satisfactory purchaser and they divided the commission. That deal was ended and had no connection whatever with the transaction now in question, except, perhaps, that plaintiff learned of defendant and his business in that way. When, therefore, plaintiff decided to sell his South Broadway property in St. Louis, he listed the same with defendant through one of his salesmen, Ebeling, to be sold at $22,000 on a 5 per cent. commission. Ebeling informed defendant of his having this property for sale. Not finding a buyer for cash after a short time, Ebeling suggested to plaintiff a trade or exchange of property, and to that end showed plaintiff two separate pieces of property at different times with a view of working up a trade. Plaintiff, however, did not become interested, and these matters were dropped. It was while looking at one of these properties that plaintiff first met the defendant. In the course of his work as salesman for defendant, Ebeling learned that defendant was interested in building up and selling lots in a new suburban addition to St. Louis on the Natural Bridge road in St. Louis county, and suggested to plaintiff that defendant might make him a proposition in connection with property there that would be profitable and enable him to dispose of his South Broadway property in St. Louis at an advantage. Ebeling made a like suggestion to defendant with the result that defendant drew up in writing a contract proposition which plaintiff later accepted and signed, the substance of which was that defendant would build for plaintiff, on four designated lots on Natural Bridge road, in St. Louis county, a certain kind of a building for a total price, including the land, of $67,000, and take in part payment plaintiff's South Broadway property at $15,000. We will later discuss this contract and the evidence as to defendant's actual fraud in making and carrying out the same, but what we are now concerned with is whether there was anything in the relation of the parties to each other of a fiduciary nature that prevented their dealing with each other as strangers and at arm's length. We think not. The bare fact that defendant in the usual course of business had some time before shared with another real estate agent the usual commission of 5 per cent. for effecting the sale of a vacant lot owned by plaintiff as an independent and collateral transaction, and the fact that plaintiff had listed with defendant through one of his salesmen this Broadway store and stock of groceries for sale at a fixed price on a commission basis, and that plaintiff had been shown by defendant's salesman two pieces of real estate with a view to a possible trade, does not, we think, show a relation of trust and confidence such as would continue and inhere in a subsequent transaction where the parties openly acted as adversary contractors.

In this connection we also note that plaintiff, who claims to have been overreached and defrauded, had long been a resident and engaged in business in St. Louis. He had been fairly successful in business and was operating another grocery store and meat market in another part of the city. He was acquainted with St. Louis and the metropolitan area adjacent thereto extending into St. Louis county. He knew the lines of business development, and, when it was suggested that he invest in lots with a business building thereon on the Natural Bridge road in a new addition called Bel Nor, in St. Louis county, it was not a venture in a strange land.

When it was first suggested to plaintiff that he invest in this new business venture, the building on the corner of two streets in St. Louis was pointed out to him, and the proposition was to build for him a new building like that one on these lots on the Natural Bridge road. That building was there for his inspection, and a reference to it was made in the subsequent contract. It was suggested that plaintiff go out and see these lots on which the new building was to be erected, and he did so and by prearrangement met the defendant there. Plaintiff was doubtless correct in saying that defendant was profuse in pointing out the advantages of this location and the bright prospects for further development and raise in prices. Defendant also assured plaintiff that there would be no trouble in renting the proposed building at good prices when the same was completed. In a few days thereafter defendant drew up a written proposition which would become a contract when accepted and submitted same to plaintiff, telling him to look it over, consult his wife, and he would see him again in a few days. Plaintiff says that he made up his mind not to sign this contract after considering it, and that he told his wife to return it to defendant unsigned. When defendant saw plaintiff again, however, they talked the whole matter over, went over the terms of the contract, and plaintiff and his wife signed it. Plaintiff testified, however, that he did so after he said to defendant, "Do you mean that you will put up this building at a cost to you at $67,000.00, including the ground?" and defendant said that he did not want to make a dime on the building. Asked if the defendant said anything as to the value of the property...