McCarty v. Hemker

• Decision Date: 06 March 1928
• Docket Number: No. 19757.,19757.
• Parties: McCARTY et al. v. HEMKER et al.
• Court: Missouri Court of Appeals

4 S.W.2d 1088

McCARTY et al. v. HEMKER et al.

No. 19757.

St. Louis Court of Appeals. Missouri.

March 6, 1928.

Rehearing Denied, with Modification, April 24, 1928.

Appeal from St. Louis Circuit Court; Franklin Miller, Judge.

"Not to be officially published."

Action by Elvena McCarty and another against George H. Hemker and others, in which an involuntary nonsuit was taken by plaintiffs as to defendants Alfred H. Murphy and others. From a judgment for plaintiffs, defendants George H. Hemker and others appeal. Affirmed.

Jones, Hocker, Sullivan & Angert, Frank A. Mohr, and Ernest A. Green, all of St. Louis, and Clyde Williams, of Hillsboro, for appellants.

Taylor R. Young and Abbott, Fauntleroy, Cullen & Edwards, all of St. Louis, for respondents.

BENNICK, C.

This is an action by which plaintiffs seek to recover damages on account of an alleged conspiracy said to have been entered into between the several defendants, including the appellants, the purpose of which was to cheat and defraud plaintiffs out of their equity in certain farm lands. At the close of plaintiffs' case, an involuntary nonsuit was taken by plaintiffs as to defendants Murphy, Angert, Jarvis, Schuebel, Reppy, and Evans. The trial proceeded as to defendants Hemker and the two Berkleys, resulting in a jury verdict for plaintiffs, and against such defendants, for $2,500 actual, and $2,500 punitive, damages; and from the judgment duly rendered thereon, such defendants have appealed.

So far as concerns the dramatis personæ in the case, suffice it to say that plaintiffs are husband and wife, residing in the city of St. Louis, while appellants Hemker and Carroll A. Berkley are real estate agents, maintaining separate offices in such city. Appellant Mollie J. Berkley is a widow, the mother of Carroll A. Berkley.

It appears that, at the beginning of the present controversy, plaintiff Elvena McCarty owned a farm of 160 acres in Chariton county, Mo., on which there were two deeds of trust outstanding, a first of $1,600 and a second of $1,317. At the same time, Frank F. Johnston and Emma Johnston, his wife, owned a dairy farm in Jefferson county, Mo., consisting of 266 acres. The title to 100 acres of such farm was in the name of Emma Johnston, while the title to the remaining 166 acres was vested in Frank F. Johnston. The 100-acre tract was subject to a first deed of trust in the sum of $9,500, securing a Federal Land Bank loan, and a second deed of trust for $1,700, in favor of the Farm & Dairy Bank, at Barnhart, Mo. The 166-acre tract was subject to a first deed of trust to the Federal Land Bank, in the sum of $8,500, and to a second deed of trust to the Farm & Dairy Bank, for $1,000. In addition, both tracts were subject to a third deed of trust for $5,000, given to secure a series of promissory notes made payable to one Henry Lowenstein; and there was also a judgment of record against both Johnstons, rendered by the circuit court of Jefferson county, for $899.

Having in mind the above preliminary state of facts, the following portion of plaintiff's petition becomes pertinent:

"Plaintiffs further state that on said 29th day of June, 1920, said defendants, and each of them, unlawfully, falsely, deceitfully, and fraudulently did combine, conspire, confederate, and agree together by divers false pretenses and subtle means and devices to induce plaintiffs to exchange said Chariton county farm for a part of said Johnstons' dairy farm and said personal property of said Johnstons, and to obtain title to said Chariton county farm and said Johnston dairy farm and said personal property from plaintiffs without paying plaintiffs therefor.

"Plaintiffs further state that on said 29th day of June, 1920, and for a long time prior thereto, the defendant George H. Hemker had been and was the agent of said Emma Johnston and said Frank H. Johnston to sell or exchange said Johnston Dairy Farm; that on said 29th day of June, 1920, said defendant George H. Hemker in furtherance of said conspiracy herein alleged falsely and fraudulently represented to plaintiffs that he was not the agent of said Johnstons, * * * and that plaintiffs relied upon said false and fraudulent representations of said defendant George H. Hemker, believing them to be true, and were thereby induced to appoint and did appoint said defendant as their agent to procure an exchange of said Chariton county farm for a part of said Johnston Dairy Farm, and did pay to said defendant George H. Hemker the sum of $1,000 for so acting as their agent.

"Plaintiffs further state that the defendant George H. Hemker, in pursuance of said conspiracy on July 2, 1920, caused a contract to be made and executed between plaintiffs and said Johnstons whereby plaintiffs agreed to exchange said Chariton county farm, subject to an incumbrance of $1,600, for 140 acres off the north part of said Johnston Dairy Farm with all improvements thereon located on said 140 acres and subject to an incumbrance of $100 per acre and for the personal property hereinabove described.

"Plaintiffs further state that to induce the plaintiffs to make said exchange the defendant George H. Hemker in pursuance of said conspiracy falsely and fraudulently represented to plaintiffs that said Johnstons possessed sufficient funds to pay off the deeds of trust on said Johnston Dairy Farm and to convey said 140 acres of land free, clear of all incumbrances, although plaintiffs were unaware of a part of such liens as hereby specified, whereas said defendant knew that said Johnstons did not have sufficient funds and could not obtain sufficient funds to remove said incumbrances; that plaintiffs relied upon said representations, believing them to be true, and were thereby induced to execute said contract.

"Plaintiffs further state that the defendant Carroll A. Berkley, acting as agent for the defendant Mollie A. Berkley, and the defendant George H. Hemker, in pursuance to the aforesaid conspiracy, falsely and fraudulently represented to plaintiffs that said chattel mortgage of said Johnstons to said defendant Mollie A. Berkley did not cover the aforesaid personal property, whereas said defendants knew that said mortgage covered said personal property; that plaintiffs relied upon said representations, believing them to be true, and were thereby induced to enter into said contract.

"Plaintiffs further state that the defendant George H. Hemker, in furtherance of said conspiracy, falsely and fraudulently represented to plaintiffs that said Johnstons had refused to carry out said contract of exchange unless plaintiffs executed and delivered to said defendant George H. Hemker as evidence of their good faith a warranty deed conveying their said Chariton county farm to said Johnstons, whereas defendant well knew that said Johnstons had made no such requirement; that plaintiffs relied upon said representations, believing them to be true, and were thereby induced to execute and deliver to said defendant George H. Hemker a warranty deed conveying to said Johnstons said Chariton county farm without receiving anything of value in exchange therefor; that in pursuance of said conspiracy, said defendant George H. Hemker caused said warranty deed to be recorded on August 7, 1921, and thereafter caused said Johnstons to execute and place of record deeds of trust on said Chariton county farm in the amount of $6,500.

"Plaintiffs further state that on or about the 2d day of October, 1920, the defendant George H. Hemker, in furtherance of said conspiracy, advised plaintiffs that said Johnstons were unable to convey said 140 acres of said Johnston Dairy Farm free and clear of all incumbrances except $100 per acre; that plaintiffs were ignorant of the aforesaid fraud practiced upon them and were ignorant of the aforesaid conspiracy; that plaintiffs agreed to a modification of said contract of exchange, whereby plaintiffs agreed to accept 100 acres of said Johnston Dairy Farm subject to two deeds of trust, one in the sum of $9,500 and the other in the sum of $1,700, and said Johnston agreed to assume an incumbranre of $1,317 and accrued interest on said Chariton county farm and to pay plaintiffs $3,000 in cash.

"Plaintiffs further state that on or about the 1st day of October, 1920, the defendant George H. Hemker, in furtherance of the aforesaid conspiracy, falsely and fraudulently concealed from plaintiffs that there was an additional deed of trust on said 100-acre tract of land in the sum of $5,000, * * * and falsely and fraudulently concealed from plaintiffs that there were judgment liens against said 100-acre tract of land in the sum of $899.99, * * * and falsely and fraudulently represented to plaintiffs that said $9,500 deed of trust and said $1,700 deed of trust were the only incumbrances against said 100-acre tract of land when said defendant knew that said $5,000 deed of trust and said $899.99 judgments were incumbrances against said land. * * *

"Plaintiffs further state that on or about the ___ day of August, 1921, they discovered the aforesaid fraud, deceit, and conspiracy of the defendants, in causing to be conveyed to them an unsalable farm, to wit, said 100-acre Johnston tract of land, by reason of said $5,000 deed of trust lien and said judgment lien, * * * and plaintiffs thereupon made demand upon defendant to release or cause to be released said additional liens, which aggregated at that time about $6,750, and all the defendants, except the Berkleys, in furtherance of said conspiracy, promised and agreed to cause said additional liens to be released of record within in ten days from the date of said demand, but said promise was not made in good faith, but in furtherance of said conspiracy, began negotiations with plaintiffs for the purchase of said 100-acre tract, and promised the plaintiffs that if they would withhold a suit for damages against the remaining defendants and said Johnstons, that they, the said Berkleys, would purchase said 100-acre...