Landsbaum v. Janet Realty Co.

• Decision Date: 07 December 1920
• Docket Number: No. 16214,16214
• Citation: 226 S.W. 604
• Parties: LANDSBAUM et al. v. JANET REALTY CO.
• Court: Missouri Court of Appeals

226 S.W. 604

LANDSBAUM et al. v. JANET REALTY CO.

No. 16214

St. Louis Court of Appeals. Missouri.

December 7, 1920.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

"Not to be officially published."

Action by David Landsbaum and Harry Waxman against the Janet Realty Company. From judgment for plaintiffs, defendant appeals. Reversed.

McLaren & Garesche and E. E. Waxman, all of St. Louis, for appellant.

Joseph Boxerman, of St. Louis, for respondents.

ALLEN, J.

This is an action instituted before a justice of the peace to recover the sum of $350 and interest on a contract alleged to have been made with these plaintiffs by the defendant corporation. The statement, or "petition," filed before the justice of the peace charges that on April 20, 1914, defendant corporation agreed in writing to sell to plaintiffs a certain lot of ground in the county of St. Louis for the sum of $500, payable $10 cash and the balance in monthly installments of $10 each; that the defendant "further agreed in writing to refund to plaintiffs the money which they have paid on account of the above lot within 36 months from April 20, 1914, less and except interest, if purchase is not satisfactory." A copy of said contract was filed with the petition as an exhibit. It is further alleged that plaintiffs paid on account of the purchase of said lot $350, and interest and taxes, and that within 36 months after April 20, 1914, to wit, on April 12, 1917, and thereafter, plaintiffs notified defendant, both orally and in writing, that they were not satisfied with the lot, and demanded of defendant the payment of said $350, but that defendant has failed and refused, and still fails and refuses, to refund the same to plaintiffs. Judgment is prayed for $350, with interest at 6 per cent. from April 12, 1917.

It does not appear that defendant filed any pleading. Plaintiffs prevailed before the justice of the peace, and on defendant's appeal to the circuit court, and a trial there de novo, before the court and a jury, there was a verdict and judgment for plaintiffs as prayed, from which defendant prosecutes the appeal before us.

The evidence shows that on and prior to April 20, 1914, defendant corporation, Janet Realty Company, owned certain lots of ground in West Walnut Manor, in St. Louis county, and that the David P. Leahy House & Home Company, a corporation, was defendant's agent for the sale of said lots. Plaintiff Landsbaum testified that he and his coplaintiff went to West Walnut Manor to look at these lots, after having seen an advertisement of the sale thereof in a newspaper, and that there they met one P. A. Smith, representing the David P. Leahy House & Home Company, who showed them the lots; that plaintiffs thought that the prices asked were too high, and started to leave the place, when, in passing a "little office out there," they saw Mr. Leahy, and that after a little conversation with him Leahy said:

"I will tell you what I will do with you; if you think that this ground ain't going to increase in a couple of years, I will give you a guarantee contract, and if you are not satisfied in thirty-six months we will give you your money, less your interest."

And the witness said that he asked Leahy if he would "put that down in writing," and Leahy said he would, telling plaintiff to come to his office the following Monday evening. And the testimony of this plaintiff is to the effect that on the following Monday he and his coplaintiff went to an office on Chestnut street, in the city of St. Louis, where said Smith prepared the written contract here in question. That contract, omitting portions unimportant here, was as follows:

"This agreement made and entered into by and between Janet Realty Company, a corporation, * * * party of the first part, and Harry Waxman and David Landsbaum, * * * parties of the second part, witnesseth that party of the first part has this day agreed to sell to the parties of the second part, the following described real estate, situated, lying, and being in the county of St. Louis, state of Missouri, viz.:

"Lot 18, block 5, of West Walnut Manor, * * for the sum of five hundred ($500.00) dollars, payable as follows, to wit: Ten ($10.00) dollars cash, the payment of which as earnest money is hereby acknowledged, and four hundred ninety ($490.00) dollars in monthly installments of ten ($10.00) dollars per month, * * * all payments to be made at the office of David P. Leahy House & Home Company, 8th & Chestnut streets. * * *

"Time is expressly made the essence of this contract, and, if the party of the second part shall fail for thirty days after any amount becomes due to pay same, then this contract shall become null and void, and the party of the first part shall retain all payments made as liquidated damages, and may sell said property to other parties for its own benefit. If the title is defective, and not perfected within a reasonable time after notice of such defect, all payments are to be refunded.

"Witness our hands and seals this 20th day

                of April, 1914.        Janet Realty Company
                                        "By J. A. Collins
                                        "David Landsbaum
                                        "Harry Waxman."
                

"It is agreed to make refund of money paid on account of principal on above purchase contract within thirty-six months from date of contract, April 20, 1914, less and except interest, if purchase is not satisfactory.

                        "David P. Leahy House & Home Co
                                 "By P. A. Smith."
                

The testimony of plaintiff Landsbaum is that when this contract had been prepared by Smith the latter signed the instrument, at the bottom thereof, in behalf of the David P. Leahy House & Home Company; and that it was then signed by J. A. Collins in behalf the place on the instrument where the defendant company's name appears; and that the plaintiffs thereupon signed.

The testimony of plaintiff Waxman is substantially the same as that of his coplaintiff so far as concerns the facts surrounding the execution of this instrument. It maybe noted, however, that this witness says that, in regard to the agreement to refund the purchase price to plaintiffs, appearing at the bottom of the instrument, he said to Smith: "How is it you signed that Leahy House & Home Company?" And the witness stated that Smith said: "That will be all right; you don't need to worry about that part of it. We will take care of that all right."

When this instrument was first offered In evidence by plaintiffs below, in support of the allegations in the petition that the defendant company had thereby agreed in writing to refund the purchase price of the lot to plaintiffs, the trial court excluded the contract on the ground that it appeared on the face of the instrument that the defendant corporation had not obligated itself to refund the purchase price, but that such obligation was one of the David P. Leahy House & Home Company alone. Subsequently, however, testimony for plaintiffs was admitted, over defendant's objections, as to transactions between plaintiffs and defendant after demands made upon the latter by the former for the return of the purchase price, in March and April, 1917.

Plaintiff Landsbaum testified that plaintiffs first went to Mrs. Collins, the J. A. Collins who signed the foregoing instrument in behalf of the defendant corporation, and that she referred them to Leahy; that Leahy, after some delay, referred plaintiffs to "the president," Mr. McLaren, and that plaintiffs went to him. As to this interview the witness Landsbaum said:

"Well we went up to see him the same day and we explained the situation to him, and he looked over the contract, and he says, `The contract is good,' he says; but he tried to make us believe that he never had anything to do with them, but that he would settle up with us, if we wanted to settle, without taking it to court. And I threatened him that we would take it to a lawyer, and he advised us not to go to an attorney."

Subsequently the witness stated that Mr. Garesche was president of the defendant corporation, and, over defendant's objections, he was permitted to testify to an interview with Garesche and McLaren as follows:

"And they agreed that they would give us one hundred dollars and pay us fifty dollars a month. And I said I would accept a proposition of that kind, and I asked him if they should give me notes for the fifty dollars, payable every month, at (I per cent. interest; and then he said, `We won't give you no interest or notes; you will have to take our word for it;' and I said, `We have been paying you interest on our money, and we are entitled to our interest.' And he says, `No; we wouldn't do nothing like that.'"

Plaintiffs' evidence shows that they engaged counsel, who made written demands upon defendant, and who had an interview with McLaren, representing defendant corporation. Over defendant's objections he was permitted to testify that McLaren said that the money would be paid to plaintiffs as soon as the defendant company could do so, and a few days later said that the best that the company could do would be to make part payment, paying the balance later, and that plaintiffs' counsel asked...