Leesemann v. Schulte

• Decision Date: 04 March 1930
• Docket Number: No. 21014.,21014.
• Citation: 24 S.W.2d 1083
• Parties: LEESEMANN v. SCHULTE.
• Court: Missouri Court of Appeals

24 S.W.2d 1083

LEESEMANN v. SCHULTE.

No. 21014.

St. Louis Court of Appeals. Missouri.

March 4, 1930.

Appeal from St. Louis Circuit Court; Erwin G. Ossing, Judge.

"Not to be officially published."

Action by F. E. Leesemann against William B. Schulte. Judgment for defendant, and plaintiff appeals.

Affirmed.

Herbert E. Barnard and Taylor R. Young, both of St. Louis, for appellant.

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

BENNICK, C.

This is an action upon a promissory note for $2,000, dated August 11, 1927, executed by defendant, and made payable to plaintiff or his order ninety days after the date thereof. After a trial of the issues, judgment was rendered for defendant, from which, following the refusal of his motion for a new trial, plaintiff has duly appealed.

Plaintiff was the owner of a bakery in the city of Hermann, Mo., and, in the summer of 1927, he advertised in the St. Louis Post-Dispatch for a buyer of his business. In response to the advertisement he received several letters, as well as a telephone call from a party who represented himself to be speaking for the United Sales Company, in St. Louis, which was later shown to be a brokerage concern engaged in the sale of business establishments, with offices in the Wainwright Building in said city.

Negotiations followed, and on July 12, 1927, plaintiff entered into a written contract with the United Sales Company through S. E. Weisstein, one of its officers, by the terms of which he agreed to sell his bakery for the sum of $2,000, and to pay such company a ten per cent. fee for its services in securing a purchaser; the sum of $100 being advanced as a retainer.

On the afternoon of August 11, 1927, Weisstein called plaintiff over the telephone, and advised him that he would come to Hermann that night, and would bring defendant with him as a prospective purchaser of the bakery. Shortly before nine o'clock, Weisstein and defendant arrived on the scene, and, after considerable discussion as to the advantages and disadvantages of the trade, the sale was made, defendant giving plaintiff the promissory note in suit, secured by a third deed of trust on certain real estate owned by defendant in the city of St. Louis, and situated at 4125 Blow street.

Contemporaneously with the execution of the note, a written contract was entered into between plaintiff and defendant, covering the terms of the sale, and providing that plaintiff should deliver to defendant a bill of sale for the fixtures, stock, good will, and business owned and conducted by him; that he should deliver to defendant a full and complete list of the outstanding accounts, as required by the bulk sales law, and should pay and discharge all of such accounts in full; that defendant should execute the promissory note, secured by deed of trust as heretofore stated; and that, in the event of the failure of defendant to pay such note at its maturity, plaintiff should become the owner of the property described in the deed of trust, and the note should thereupon be canceled.

On November 18, 1927, the present suit was filed. Suffice it to say of the petition that it was in the regular form for an action upon a promissory note. In his answer, defendant admitted the execution of the note, but pleaded the existence of the written contract hereinbefore referred to, and set up that, in accordance with the terms thereof, at the maturity of the note, he had conveyed the Blow street property in St. Louis to plaintiff by quitclaim deed, and that such conveyance was in full payment of his indebtedness for the bakery. The answer concluded with a prayer for the cancellation of the note. In his reply, plaintiff alleged that the agreement and contract for the sale of his bakery had been procured as the result of the fraudulent acts and misrepresentations of defendant in particulars which we shall hereinafter consider, in consequence of which he prayed judgment on the note, and further prayed the court to cancel and hold void the contract of exchange, and to decree the quitclaim deed void and of no force and effect.

The burden of plaintiff's complaint on this appeal is that the decree should have gone in his favor, and not for defendant, because of the fraud worked upon him by the latter in securing his assent to the trade.

The charge of fraud upon which plaintiff has based his right to relief was that defendant and his own agent, Weisstein, were jointly engaged in the management of the United Sales Company (thus evidently implying, but not alleging, a conspiracy between the two); that he asked for time to consider the merits of the transaction, but was rushed and coerced into signing the contract, upon the pretext that defendant expected to catch the next train back to St. Louis; that he was assured that defendant was a well-known and reliable St. Louis business man; and that he was told that the Blow street property was a valuable piece of real estate, worth the sum of $6,800, subject to two deeds of trust for the total sum of $4,500, and situated in a well-located subdivision, with the streets, alleys, and sidewalks finished and paid for.

With regard to the hint of a conspiracy, it was shown that defendant owned one share of stock in the United Sales Company, although his own activities were but very perfunctory in the management thereof, and that he and Weisstein had had certain former business dealings together at and prior to the time of the acquisition by defendant of the Blow street property, when Weisstein had represented him in the exchange of his South Grand boulevard property therefor; but there was no proof whatsoever of any conspiracy between the two, the fact being that defendant's own experiences with Weisstein had in some instances been unfortunate. As opposed to the idea of a prearranged design to defraud the plaintiff, it appears from plaintiff's own testimony that, when the parties came together in his bakery, Weisstein spent the greater part of...