Louis v. Andrea

Decision Date11 July 1960
Docket NumberNo. 2,No. 47329,47329,2
Citation338 S.W.2d 96
PartiesJack LOUIS, Executor of the Estate of Archard L. Louis, Decedent, and Trustee in Deed of Trust, Respondent, v. Vivian ANDREA and The Sarlou Realty Company, a corporation, Appellants
CourtMissouri Supreme Court

Rex Parr, Kansas City, for appellant.

A. J. Granoff, Loeb H. Granoff, Kansas City, for respondent.

EAGER, Judge.

Plaintiff, as Executor, claims to be the owner of a $25,000 note secured by deed of trust; and, as Trustee in that deed of trust, he seeks foreclosure. The note and deed of trust were executed by defendants Vivian Andrea and Sarlou Realty Company, a corporation; that note was payable to Archard L. Louis, father of the plaintiff, who died on January 9, 1956. The petition alleged that the note was in default and that defendant Andrea, though not the lawful owner or assignee, had fraudulently presented it for release on February 7, 1956, as the assignee thereof, and had caused it to be cancelled and the deed of trust released of record. Plaintiff prays for the cancellation of the fraudulent assignment and release, for judgment on the note and for foreclosure. Both defendants denied plaintiff's substantive allegations; defendant Andrea alleged: that the note had been paid in full by considerations adequate and satisfactory to the deceased, that deceased had voluntarily caused the note to be marked paid and cancelled, and that he gave it and the deed of trust to her. To simplify a complicated recital of facts, we shall refer to the deceased Archard L. Louis as 'Louis,' to plaintiff as 'Jack,' and to the individual defendant as 'Andrea.' The other characters passing across the stage will be designated as they appeal.

Louis was a married man, 55 years old at his death, with two sons; Jack was 37 at time of trial, Stanley somewhat younger. Louis had for some years operated the Louis Funeral Home at 3400 Woodland Avenue in Kansas City. The business was operated as a partnership consisting of Louis, his wife, and his son Jack. Louis and his wife Gertrude had living quarters above the funeral home. At some time in the early 40's Louis met Andrea, then a manicurist in the National Barber Shop. She was 27 years old, a divorcee, and he was about 40. She testified that from that time on he pursued her relentlessly despite her efforts for several months to discourage him, that he followed her around, and that he finally 'eliminated everybody else.' She testified that Louis represented himself as being separated from his wife. It appears that at times, and for somewhat extended periods, he did live away from home and that there was domestic discord. Louis associated closely with Andrea for years, in Kansas City and elsewhere, including fishing trips to the Lake of the Ozarks, Minnesota and Canada. In the spring of 1949 Louis purchased an eleven or twelve unit motel at 3707 Raytown Road in Kansas City. The total purchase price was presumably $35,000. It was decided to take title in the name of a corporation so the Sarlou Realty Company was organized with 105 shares of capital stock. Louis received one share, his attorney one share, and his aunt Sarah Louis 103 shares on April 8, 1949. The record does not show who actually furnished the purchase price, except that Andrea testified that she furnished $4,000 in cash which she had accumulated. On July 1, 1950, 102 shares were transferred to Louis, and one share to Ada Richards, presumably a qualifying share. Andrea lived at the motel and apparently ran it; Louis was there frequently and, for a time, probably lived there. Andrea testified that he told her that he wanted a place of business for her, and that the stock certificates were endorsed and turned over to her, but that no transfer to her was actually made. About 1952, if not earlier, these two began quarreling. Andrea testified that she gave Louis the stock certificates for transfer to her, but that no such transfer was ever accomplished. According to Andrea, the encounters were not merely verbal; she testified that once she was beaten so severely that she was hospitalized for several days. Both were in Police Court on September 18, 1952; she had charged Louis with disturbance of the peace and he insisted that he had merely tried to eject her from the motel at an early hour because she was intoxicated. On September 19, 1952, Andrea sued Louis for assault. On October 6, 1952, the corporation sued her, alleging that she had been employed as manager of the motel in July 1949, that she had been discharged in July 1952, but that she had refused to leave or account for the rents; injunctions against interference in the management and an accounting were sought, and a temporary injunction was issued. On October 4, 1952, Andrea sued the corporation, Louis, and others, asking that she be declared the owner of the stock, alleging a complicated and rather ambiguous set of oral representations and agreements, and claiming that she had held the endorsed certificates until Louis procured them from her in March 1952, after which he had denied that she had any right or interest. Notwithstanding all the foregoing, Andrea testified that she and Louis continued to be most friendly and that they were frequently together. The evidence indicated, however, that Louis had lived at his home, in apparent harmony, from the latter part of 1953 until his death.

In the fall of 1954 the assault case was about to be tried. According to Andrea, Louis said that he wanted to settle the suits and forget them; that all he wanted to do was, in his words, 'to satisfy my family and get them off my neck'; that he also suggested an agreement between them 'ahead of time,' so that the formal papers which their lawyers prepared would make no difference. An exhibit was received in evidence over strenuous objections, which purported to be that agreement. It was dated October 25, 1954, was in typewriting, was notarized, and was as follows: 'To Whom it May Consern-Greetings. It is hereby agreed by the party of the first part, Archard Louis and party of the second part, Vivian Andrea, that a Twenty Five Thousand ($25,000) Dollar Mortgage executed by the party of the second part to the party of the first part, to be paid at the rate of Two Hundred ($200.00) Dollars per month as long as the party of the first part shall live. Also that mortgage be marked paid in full by party of the first part and placed in sealed envelope with this agreement and placed with a mutual friend to be given to either party upon the death of one party.' Andrea testified that Louis wrote this out in long-hand, that the notary copied it on the typewriter, and that both signed it. The testimony of the notary was most vague, but he did say that the parties appeared before him. Andrea also testified that none of the lawyers knew of their secret agreement when the formal settlement was effected, and that Louis stated that he would mark the papers paid in full and give them to a mutual friend. On November 1, 1954, a complete and formal compromise agreement was executed by Louis and Andrea and verified by their affidavits (actually a sort of combined affidavit and acknowledgment). Every page was initialed, and the agreement was approved by the interested attorneys, including Andrea's present counsel. It provided for the dismissal of all suits, the execution of general releases, the transfer of the corporate stock to Andrea for the sum of $25,000, and the execution by her and the corporation of a note for that amount, payable to Louis at the rate of $200 per month, without interest except upon default, to be secured by deed of trust on the motel property. Assurances were also given in the agreement for the payment of taxes, the assumption of the first deed of trust, and for adequate insurance. General releases were executed concurrently; the release executed by Louis made specific exception of the note and deed of trust just referred to. All the litigation was dismissed. Formal corporate meetings were held on November 1, 1954, approving the compromise settlement, authorizing the execution of the note and mortgage, and electing new directors and officers. The stock was concurrently transferred to Andrea and her nominees. Andrea approved and signed the minutes. She took charge of the motel thereafter.

In 1955 Louis' health became seriously impaired. He was hospitalized twice during that year with coronary attacks. He died in the Northeast Osteopathic Hospital on January 9, 1956. He had left home on January 6, 1956, supposedly for the barbershop. Andrea testified that Louis came to her abode at the motel about nine or ten p. m. on January 6; that several of her relatives and friends were present; that he had been drinking but was not drunk, that he ate heartily of pizza pie and became seriously ill. She further testified that he did not want his family called, that they tried to get 'Dr. Day' at his request, and that she finally prevailed upon him to go to the hospital. After Louis' death plaintiff was unable to locate the $25,000 note. He and his brother Stanley went to see Andrea about their father's watch and ring, which were asserted to be of some value; she stated that Louis had given these things to her when he became ill on the evening of January 6, and that she wanted to think this matter over. Jack testified that his father was wearing them when he last saw him on the afternoon of January 9 at the hospital. These articles, and the money on Louis' person, were the subject of later proceedings to discover assets.

Dr. Frank Day, an osteopathic physician, testified: that he had known Louis for many years and had treated him periodically; that in the spring of 1955 Louis came to his office with some 'legal papers,' showed them to him and wanted to leave them with him. He identified the controverted $25,000 note (from a copy) as one of...

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  • Chesus v. Watts, WD
    • United States
    • Missouri Court of Appeals
    • 3 de março de 1998
    ...course of dealing are admissible." Blakeley v. Bradley, 281 S.W.2d 835, 839 (Mo.1955). Our Supreme Court has said in Louis v. Andrea, 338 S.W.2d 96, 104 (Mo.1960), that in a fraud case, "much of the evidence can be inferred from the defendant's case[.]" In the present case, much can be infe......
  • Willman v. Beheler
    • United States
    • Missouri Supreme Court
    • 14 de maio de 1973
    ...an appropriate case, Sebree v. Rosen, 374 S.W.2d 132, 138(8) (Mo.1964); Anison v. Rice, supra, 282 S.W.2d l.c. 502(4); Louis v. Andrea, 338 S.W.2d 96, 105(13) (Mo.1960); 30 C.J.S. Equity §§ 71, 72; 30A C.J.S. Equity § 599, fn. 72, p. 667, where the necessities of the situation require this ......
  • Mitchell's Estate, Matter of
    • United States
    • Missouri Court of Appeals
    • 16 de dezembro de 1980
    ...in equitable actions sounding in fraud, our courts have required proof by clear, cogent and convincing evidence. See, Louis v. Andrea, 338 S.W.2d 96 (Mo.1960). For example, in Dillard v. Dillard, 266 S.W.2d 561 (Mo.1954), the Court required a widow to prove fraud by clear, cogent and convin......
  • Burnett v. Johnson, 48325
    • United States
    • Missouri Supreme Court
    • 11 de setembro de 1961
    ...or rendering a money judgment. Anison v. Rice, Mo.Sup., 282 S.W.2d 497, 502; Johnson v. Blase, Mo.Sup., 322 S.W.2d 759; Louis v. Andrea, Mo.Sup., 338 S.W.2d 96, 104; Godwin v. Graham, 360 Mo. 418, 228 S.W.2d 789; Missouri Cafeteria v. McVey, 362 Mo. 583, 242 S.W.2d 549, 553 (7, 8). In this ......
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