Leimkuehler v. Wessendorf

• Decision Date: 07 June 1929
• Docket Number: 26360
• Citation: 18 S.W.2d 445,323 Mo. 64
• Parties: Frank Leimkuehler, Henry Ritterbusch, John Peuster, Administrator of Estate of A. C. Peuster, Christ Zimmerman and Hugo Teckemeyer v. George Wessendorf, T. M. Ehlers, Roy Burgard, Lot A. Doughty and E. P. Roberts, Appellants
• Court: Missouri Supreme Court

18 S.W.2d 445

323 Mo. 64

Frank Leimkuehler, Henry Ritterbusch, John Peuster, Administrator of Estate of A. C. Peuster, Christ Zimmerman and Hugo Teckemeyer v. George Wessendorf, T. M. Ehlers, Roy Burgard, Lot A. Doughty and E. P. Roberts, Appellants

No. 26360

Supreme Court of Missouri

June 7, 1929

[Copyrighted Material Omitted]

Appeal from Saline Circuit Court; Hon. Robert M. Reynolds Judge.

Affirmed.

James & Shook, Com P. Storts, W. H. Meschede and Lyons & Ristine for appellants.

(1) The court erred in giving the plaintiffs' instruction number one, which purported to cover the entire case and direct a verdict for the plaintiffs. (a) Because if said instruction is an instruction authorizing the plaintiffs to recover because of the fraud and deceit of the defendants, it does not properly declare the law applicable to fraud and deceit but rather assumes fraud on the part of the defendants. Lindsay v. Mining Co., 244 Mo. 438, 453; Allen Estate Assn. v. Boeke & Son, 300 Mo. 575; Green v Edmonds, 245 S.W. 378. (b) Because if said instruction purports to authorize a recovery for the plaintiffs against the defendants on the ground that the defendants were agents for the plaintiffs and made a secret profit, then the measure of damages is wrong, because the measure of damages in such case would be the amount actually received by the plaintiffs less whatever commission the plaintiffs had received. Herron v. Smith, 285 S.W. 544; Busse v. White, 302 Mo. 672; Degonia v. Railroad, 224 Mo. 564. (c) Because said instruction authorizes a recovery against all of the defendants if they assisted Wessendorf and Ehlers in said exchange, regardless of what capacity they were working in, and, of course, the defendants, Burgard, Doughty and Roberts would not be liable to the plaintiffs as agents if they were volunteers, or if they were acting for their own benefit, or if they were acting for the owners of the Garden City property, or if they were acting for the agents of the Garden City people, although, they might assist in the trade or exchange. Land & Lumber Co. v. Chrisman, 204 Mo. 371; Devero v. Sparks, 189 Mo.App. 505. (d) Because said instruction makes the act of each defendant the act of the other defendants without requiring the jury to find that they were all agents for the plaintiffs or that they conspired together, and does not define what fact would constitute a conspiracy or concerted action. Menx v. Haller, 179 Mo.App. 472. (e) Because said instruction confused and intermingled two causes of action, namely, a cause of action for fraud and deceit and one on the theory that defendants were agents of the plaintiffs, and does not require the jury to find all of the essential facts on either theory, but improperly commingles the two theories. Wade v. Boone, 184 Mo.App. 88; Herron v. Smith, 285 S.W. 546. (f) Because under the pleadings it was admitted that Wessendorf and Ehlers were agents of the plaintiffs, and denied that defendants Burgard, Roberts and Doughty were agents, and the instruction does not properly declare the facts which the jury must find in order to constitute the defendants Burgard, Doughty and Roberts agents of the plaintiffs and liable as such. Hodkinson v. Machinery Co., 161 Mo.App. 87; Menx v. Haller, 179 Mo.App. 472. (g) Because the second amended petition pleads fraud and deceit of the defendants, and this instruction is at variance with the pleadings and proof in the case. Green v. Edmonds, 245 S.W. 378. (2) The court erred in giving the plaintiffs' instruction number two, which purported to cover the entire case and direct a verdict for the plaintiffs. (a) Because said instruction is in conflict with instruction one given by the plaintiffs. Shepard v. Transit Co., 189 Mo. 373; Porter v. Ry. Co., 199 Mo. 82. (b) Because said instruction does not properly define what is essential and necessary for fraud and deceit. Brown v. Ry. Co., 187 Mo.App. 104; Allen Estate Assn. v. Boeke & Son, 300 Mo. 575; Lindsey v. Mining Co., 244 Mo. 453. (c) Because said instruction is contrary to and in conflict with the plaintiffs petition and the evidence in the case, because the petition doesn't plead and the proof doesn't show that any of the defendants were employed by the plaintiffs to effectuate an exchange of their farm to Kauffman, Mosser and Brasfield. Matlack v. Paregoy, 188 Mo.App. 95. (d) Because said instruction assumes that there was property wrongfully and intentionally concealed from the plaintiffs and assumes that said property was intended to be conveyed to the plaintiffs without requiring the jury to find such fact. Kansas City v. Woerishoeffer, 249 Mo. 1. (e) Because said instruction authorizes a finding against all of the defendants if the jury find that one or more were employed by the plaintiffs as their agents, merely because the others may have assisted in some way in effecting the exchange, without defining what kind of assistance would make them liable. Devero v. Sparks, 189 Mo.App. 505; Moran v. Railroad Co. (Mo. App.), 255 S.W. 331. (f) Because the measure of damages in said instruction is erroneous and wrong. Herron v. Smith (Mo. App.), 285 S.W. 544. (3) The court erred in giving plaintiffs' instruction number three, because it does not properly declare the law covering the measure of damages in this case. Boyd v. Wahl, 175 Mo.App. 181; Herron v. Smith, 285 S.W. 544. (4) The court erred in giving the plaintiff's instruction number five, because it wholly disregards the testimony of the defendants and is practically a peremptory instruction to find for the plaintiffs, contrary to the law and the evidence in the case, and because it doesn't properly define what it is necessary for the jury to find, in order to find that the defendants were agents of the plaintiffs, and because the same law applicable to agency would not apply equally against the defendants Wessendorf and Ehlers, who by their pleadings admitted they were agents of the plaintiffs, and the defendants Burgard, Doughty and Roberts. Devero v. Sparks, 189 Mo.App. 500, 505; Smith v. Southern, 210 Mo.App. 288. (5) The court erred in giving plaintiff's instruction number seven, because said instruction is an abstract statement which is not applicable to the facts in this case and does not instruct the jury what facts they must find in order to charge the defendant or defendants with fraud. Moran v. Railroad Co. (Mo. App.), 255 S.W. 335; Welsch v. Gleiforst (Mo. App.), 259 S.W. 852; Borowski v. Biscuit Co. (Mo. App.), 229 S.W. 428; Flood v. Busch, 165 Mo.App. 142; Gass v. Evans, 244 Mo. 329; McCaw v. O'Malley, 298 Mo. 401. (6) The court erred in adding to the defendants' given instruction number three before giving the same to the jury, because that which was added to said instruction does not properly declare the law applicable to this case, because it assumes that if any of the defendants other than Wessendorf and Ehlers received any property in exchange for plaintiffs' real estate and retained the same, the retention thereof was wrongful, without defining what facts would constitute a wrongful concealment and detention of such property, and because it makes the defendants Wessendorf and Ehlers liable if they participated in the division of such property, regardless of how it may have been acquired by the other defendants. Dennison & Co. v. Aldrich, 114 Mo.App. 709; Smith v. Southern, 210 Mo.App. 288. (7) The court erred in adding to the defendants' given instruction number four, because there was no testimony from which the jury might reasonably infer that Burgard, Doughty and Roberts were agents for the plaintiffs, and the part added by the court to said instruction was not justified by the evidence. Smith v. Southern, 210 Mo.App. 288. (8) The court erred in adding to the defendants' given instruction number six, because the defendants' instruction number six, without said addition, properly declared the law, and the addition of the court rendered said instruction absolutely worthless and totally useless to the defendants, because by said addition the court says that, even though Doughty and his associates had a contract with Brasfield, Mosser and Kauffman, by which they could retain any part or all of the Cass County property as their own, provided they procured a conveyance of the Brockway Island, and a mortgage on the same, if they did anything towards accomplishing that end, then they couldn't avail themselves of that contract. This is not the law and is a gross misdirection to the jury. Smith v. Southern, 210 Mo.App. 288. (9) The court erred in refusing to give the defendants' requested instruction number two, because it properly declares the law applicable to the defendants Wessendorf and Ehlers. Dennison & Co. v. Aldrich, 114 Mo.App. 709; 2 C. J. 714, sec. 368. (10) The court erred in refusing to give the defendants Wessendorf and Ehlers' requested instruction number four, because it properly declares the law applicable to an action for fraud and deceit. Lindsey v. Mining Co., 244 Mo. 453. (11) The court erred in refusing to give the defendants Burgard, Doughty and Roberts' requested Instruction five, because it properly declared the law applicable to the facts involved in this case, because if said defendants were not the agents of the plaintiffs there was no liability under the law and the evidence in this case. Devero v. Sparks, 189 Mo.App. 505. (12) The court erred in refusing to grant, the defendants Burgard, Doughty and Roberts requested instruction number seven, because said instruction correctly declares the law with respect to said defendants applicable for an action for fraud and deceit. See cases under 12. (13) The court erred in admitting incompetent, irrelevant and prejudicial evidence for the plaintiffs and against the defendants over the...