McClure v. H. R. Ennis Real Estate & Inv. Co.

• Decision Date: 20 May 1929
• Docket Number: No. 16611.,16611.
• Citation: 19 S.W.2d 531
• Court: Missouri Court of Appeals
• Parties: McCLURE v. H. R. ENNIS REAL ESTATE & INV. CO.

19 S.W.2d 531

McCLURE v. H. R. ENNIS REAL ESTATE & INV. CO.

No. 16611.

Kansas City Court of Appeals. Missouri.

May 20, 1929.

Rehearing Denied June 10, 1929.

Certiorari Denied August 2, 1929.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

"Not to be officially published."

Action by Mary McClure, executrix of the estate of W. M. McClure, deceased, against the H. R. Ennis Real Estate & Investment Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Kelly, Buchholz & O'Donnell, of Kansas City, for appellant.

Lathrop, Crane, Reynolds, Sawyer & Mersereau, of Kansas City, for respondent.

ARNOLD, J.

This is an action to recover $1,000 alleged to have come into the hands of defendant through misrepresentation, fraud, and deceit in connection with a certain contract for the purchase of a piece of real estate.

This is the second appeal in this case, the former appeal to this court having resulted in the judgment being reversed and the cause remanded because of error in an instruction for plaintiff. 219 Mo. App. 112, 268 S. W. 675. The facts in the case are fully set out in that opinion and need not be repeated here. The cause was retried on the original petition without amendment, and the petition was not attacked by motion or demurrer. The evidence for plaintiff is the same as in the former trial, being read from the record on the former appeal. An examination of the record shows defendant's evidence is materially the same as on the former appeal, with the exception of the introduction of two letters received by defendant from plaintiff's attorney. Defendant's answer as to the first count is the same. The second count admits defendant's corporate status, alleges that J. Q. Watkins was the owner of the land involved in this suit; that said Watkins employed defendant to procure a purchaser for said property, and that defendant should have as a commission therefor whatever sum might be paid in excess of $27,500; that, pursuant to said agreement, defendant procured W. M. McClure to append his name to a paper by virtue of which McClure agreed to purchase said property; that the paper so signed by McClure was not complete, in that the legal description of said property was not complete, because the name of the record owner was not incorporated therein, and in that McClure was given the option to have possession between the date of signing the contract (April 29, 1921) and the 1st day of July thereafter, and that the terms of the said contract with reference to the payment of rent during the time the seller might occupy the same after the date of signing the contract are un-expressed; that this last-named provision was necessary to be incorporated therein; that McClure empowered said Watkins and his agent to complete the said contract by filling in the blanks, in reference to the matters above mentioned, and that McClure consented to the same; that thereafter Watkins signed said contract and McClure was duly notified thereof; that McClure paid the sum of $1,000 to Watkins as earnest money, by depositing same with defendant; that said contract provided the said $1,000 should be returned to the purchaser only in the event the title was defective and not rectified within the time required by the contract; that Watkins became indebted to defendant in the sum of $1,000, and by letter directed defendant to retain the same as compensation for services in selling said property. This letter is set out in the answer.

The answer further avers that the title to said property was not defective; that Watkins made a valid contract with McClure to convey the property, thereby discharging his obligation to defendant; that, after the contract was signed by both parties and after Watkins had directed defendant to retain the $1,000 as compensation, McClure requested Watkins not to enforce said contract of sale, giving as a reason therefor that it would inconvenience McClure; that Watkins, upon said request, told McClure he had made a contract and it would stand as it was; that he was ready to convey the property whenever McClure requested him so to do, and that it was agreed between Watkins and McClure that the contract in so far as it was performed by McClure by the payment of the $1,000 should stand as it was, and that Watkins would not be required to return the same; that McClure is estopped to prosecute this action against defendant; and that, in equity and good conscience, plaintiff ought not to be permitted to prosecute this action.

The answer further alleges that McClure agreed with Watkins that the said contract was valid and binding and that McClure caused Watkins to refuse to carry out and enforce said contract to convey; that, by reason of the agreement of McClure with Watkins, the latter became indebted to defendant in said sum of $1,000, and that Watkins had discharged said debt by directing defendant to retain said $1,000 so deposited, and defendant could not have prosecuted its claim against Watkins; that, by reason of McClure's contract with Watkins, McClure was estopped to prosecute this action. The prayer of the amended answer is that the action be dismissed.

The reply to defendant's amended answer is a general denial, after admitting defendant is a duly organized corporation. Upon the issues thus made, the cause went to trial to a jury, resulting in a verdict for plaintiff in the sum of $1,397.32, and judgment was entered accordingly. Timely motions for a new trial and in arrest of judgment were filed, but were overruled. Defendant has appealed.

There are six assignments of error: (1) That the court erred in permitting the jury to determine the facts in the case, because defendant's answer raised an equitable issue and asked affirmative relief; (2) in failing to hold plaintiff was estopped to maintain the action by reason of the acts and conduct of deceased in agreeing with the defendant's principal that the contract would stand as it was; (3) in failing to submit to the jury the issue of estoppel, as prayed in defendant's instructions, after the refusal of defendant's peremptory instruction; (4) in giving each and every instruction requested by plaintiff, 1 to 4, inclusive, because not warranted by the pleadings and evidence; (5) in refusing defendant's instruction 5, as asked, and giving same as modified, and in refusing defendant's instructions 6 to 15, inclusive; (6) in holding the petition states a cause of action.

We will consider the last charge of error first, and in this connection it is necessary to say only that we held in our former opinion the petition was bottomed on fraud and deceit and was not an action on contract. The petition is the same as at the former trial, and states a cause of action for fraud and deceit. Menefee v. Scally (Mo. App.) 247 S. W. 259; State ex rel. v. Allen, 310 Mo. 378, 383, 276 S. W. 877. It is well settled in this state that the determination of a question on a former appeal is res adjudicata on second appeal. Wall v. American Ry. Express Co. (Mo. App.) 291 S. W. 161. The situation here presented is the same as on the former appeal. The matter alleged in the second count of the amended answer does not change the cause of action as pleaded in the petition. The cause is not thereby transformed into a suit in equity. Conceding, for the purposes of this point, that the answer would pass the case from the law side to the equity side of the docket, yet, in the situation here presented, defendant is not aided. Defendant proceeded to try the case as one at...