Lewis v. Hays
| Citation | 21 S.W.2d 946 |
| Decision Date | 03 December 1929 |
| Docket Number | No. 20473.,20473. |
| Parties | LEWIS et ux. v. HAYS et al. |
| Court | Court of Appeal of Missouri (US) |
Appeal from St. Louis Circuit Court; A. B. Frey, Judge.
"Not to be officially published."
Action by Thomas A. Lewis and wife against John W. Hays, James T. Bush, and others. From a judgment overruling a motion to set aside an involuntary nonsuit as to defendant Bush, plaintiffs appeal. Reversed and remanded, with directions.
Frank C. O'Malley and N. A. Mitchell, both of St. Louis, for appellants.
Emanuel Williams and Harvey V. Tucker, both of St. Louis, for respondents.
This is an action for fraud. All of the parties to the case are of the negro race. Plaintiffs are husband and wife. All the defendants are engaged in the real estate business in the city of St. Louis. Defendants John W. Hays and Walter A. Orme are the chief officers and managers of defendant Hays-Orme Real Estate & Investment Company.
The petition alleges that, on April 4, 1924, the plaintiffs were the owners and in possession of lot 4 in block 3698 of the city of St. Louis, fronting 25 feet on the north side of Lucky street, by a depth northwardly of 132 feet; that said real estate was and is improved with a two-story six-room brick residence; that on or about February 1, 1924, plaintiffs employed defendant Hays-Orme Real Estate & Investment Company as their agent to procure a purchaser for said real estate and improvements; that said defendant accepted said employment, and agreed to exercise good faith with plaintiffs in procuring a purchaser; that thereafter the defendants Hays-Orme Real Estate & Investment Company, John W. Hays, James T. Bush, and Walter A. Orme entered into an agreement and conspiracy between themselves for the purpose of cheating and defrauding plaintiffs out of part of the money to be procured by the sale of real estate, and conspired and agreed to represent to the plaintiffs that only the sum of $3,450 could be procured for said real estate; that, pursuant to said scheme, agreement, and conspiracy, said defendants did represent and state to the plaintiffs that the greatest sum they could procure for said real estate was the sum of $3,450; that at the time said representations were made the said defendants did have purchasers for said real estate, in the persons of Harold Macklin and Alice Macklin, his wife, who had agreed with defendants to purchase said real estate for the sum of $5,000; that, pursuant to said conspiracy and scheme to cheat and defraud these plaintiffs, the said defendants did conceal from plaintiffs the fact that they could procure said sum of $5,000 for said real estate, and in further pursuance to said scheme to cheat and defraud these plaintiffs did pretend and represent to the plaintiffs that they had a purchaser for said real estate in the person of one Frances B. Wanner, for the sum of $3,450, and the plaintiffs, relying upon said representation, did sign an agreement in writing whereby they agreed to sell said real estate to said Frances B. Wanner for the said sum of $3,450, and agreed to pay to the Hays-Orme Real Estate & Investment Company the sum of $150 commission; that the said Frances B. Wanner was a mere straw person for the execution of said conspiracy, and was used by defendants for the purpose of taking title out of plaintiffs; that thereafter the said defendants did cause and procure plaintiffs to convey said real estate to one Thelma Knox, and that plaintiffs made said conveyance, relying upon the said representations of defendants; that said Thelma Knox was a mere straw person for defendants in the execution of said conspiracy, and that thereupon the said defendants did cause the said Thelma Knox to convey said real estate to the aforesaid Harold Macklin and his wife; that the said Harold Macklin and his wife did pay to said defendants the sum of $5,000 for said conveyance; that the defendants further, pursuant to said scheme to cheat and defraud these plaintiffs, did thereupon represent to the plaintiffs that they secured for said real estate the sum of $3,450, and said defendants did pay over to the plaintiffs the said sum of $3,450; that the said defendants thereupon did charge and receive from the plaintiffs the sum of $150 as commissions on said sale; that the said defendants have secretly, unlawfully, and with intent to cheat and defraud these plaintiffs, retained the difference between the said $3,450 and the said $5,000, viz., $1,550, and, pursuant to said scheme, have divided said secret profits among themselves; and judgment is prayed for the said sum of $1,550, together with $150 paid defendants as commission forfeited by their bad faith, making a total of $1,700, and for interest and costs.
The answer of the defendant Bush is a general denial.
The answer of the other defendants admits that on or about February 1, 1924, plaintiffs employed defendant Hays-Orme Real Estate & Investment Company as their agent to procure a purchaser for the real estate described in the petition, and denies specifically the other allegations of the petition.
The cause was tried to a jury. At the conclusion of the whole case, defendant Bush requested an instruction in the nature of a demurrer to the evidence, which the court sustained. Thereupon plaintiffs took an involuntary nonsuit as to said defendant. The jury returned a verdict in favor of plaintiffs against the remaining defendants for $1,876.53. The court gave judgment accordingly. Plaintiffs in due time filed their motion to set aside the nonsuit, which the court overruled. Plaintiffs appeal.
The evidence tends to show that, after defendant Hays-Orme Real Estate & Investment Company was employed by plaintiffs to find a purchaser for their property, two representatives of defendant Hays-Orme Company got in touch with one Harold Macklin, and showed him the property. These representatives priced the property to Macklin at $5,670. Macklin declined to take the property at this price, but offered $5,000 for it, and told them he would pay $5,000 for the property as soon as they could get it for him at that price. After this offer was received, the Hays-Orme Company sent a representative to the plaintiffs to get them to sign an agreement to sell the property for $3,450. This representative stated to the plaintiffs that $3,450 was all the property was worth. He told them that he had a purchaser for the property, but that the best the purchaser would give was $3,450; that this was the very best he could do; that this was the best the purchaser would offer for it; that the purchaser was Frances B. Wanner. Thereupon the plaintiffs signed a contract of sale prepared in the office of the Hays-Orme Company, acknowledging receipt from Frances B. Wanner of the sum of $100 as earnest money and part of the purchase price of the property, and agreeing to make deed to the property upon the payment of the further sum of $3,350. This contract was made and signed on February 28, 1924.
On the following day a contract was executed for the sale of the property to Harold Macklin for $5,000. By this contract, which was signed by the Agee Real Estate Company, said company acknowledged receipt from Harold Macklin of the sum of $100 as earnest money and part of the purchase price of the property, and agreeing to make deed to the property upon the payment of a further sum of $400 in cash, and the execution of a first deed of trust for $2,500, and a second deed of trust for $2,000. One William Jordan represented the Agee Real Estate Company in the transaction. Just what relation this company sustained to the other parties to the transaction does not appear. Macklin testified that, some time after his negotiations with the two representatives of Hays-Orme Company, Jordan called to see him, and that in the transaction with...
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