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

• Decision Date: 19 January 1925
• Citation: 268 S.W. 675,219 Mo.App. 112
• Parties: MARY McCLURE, Executrix of the Estate of W. M. McCLURE, deceased, Respondent, v. H. R. ENNIS REAL ESTATE & INVESTMENT COMPANY, a Corporation, Appellant. *
• Court: Kansas Court of Appeals

268 S.W. 675

219 Mo.App. 112

MARY McCLURE, Executrix of the Estate of W. M. McCLURE, deceased, Respondent, v. H. R. ENNIS REAL ESTATE & INVESTMENT COMPANY, a Corporation, Appellant. *

Court of Appeals of Missouri, Kansas City

January 19, 1925

Appeal from the Circuit Court of Jackson County.--Hon. Thad B Landon, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Lathrop Morrow, Fox & Moore for respondent.

Kelly Buchholz, Kimbrell & O'Donnell for appellant.

OPINION

ARNOLD, J.

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

Defendant is a corporation of which H. R. Ennis is president and is engaged in the sale of real estate for commission. Plaintiff W. M. McClure, now deceased, was connected in an official capacity with the firm of Stine-McClure, undertakers of Kansas City, Mo. Mary McClure, the widow of W. M. McClure and executrix of his estate, has been substituted as party plaintiff to this suit.

The facts show that one Martin Bahnsen, a real estate agent connected with defendant, undertook to sell McClure a piece of property located at 1207 Linwood Boulevard in Kansas City, Mo., owned by one J. Q. Watkins, and listed with defendant for sale. The title to the property, though without any financial interest attaching, stood in the name of James M. Harner, a relative of Watkins.

The petition charges "that defendant represented and stated that it had an option on said property expiring that day; that it had at least two other customers anxious to obtain said property on the terms mentioned in said so-called contract; that if the signature to the said so-called contract of said J. Q. Watkins could not be obtained that night before the expiration of the option, said so-called contract and check would be returned to plaintiff on the following morning; that if the signature of the said J. Q. Watkins could be obtained, if plaintiff did not want said property under said so-called contract, he would not be required to take it, but it would be turned over to one of defendant's other customers; that plaintiff relied upon said representations and statements; that defendant did not have any option on said property and never had had; that said so-called contract was not signed that day, but later on was changed by adding the name of James M. Harner as one of the owners of said property and by insertion of a clause in regard to payment of rent; that plaintiff never assented or agreed to any extension of time or to any change in said so-called contract but offered at one time to make additional changes therein, but that defendant refused to permit the same to be made; that the minds of the parties never met; that plaintiff thereafter informed said J. Q. Watkins of the conditions under which said so-called contract and check were obtained from him and was promptly informed that there would be no effort made to enforce said so-called contract, and the copy thereof, which said Watkins had was turned over and delivered to plaintiff; that plaintiff demanded from defendant the return of his check or the payment to him of said sum of one thousand dollars on or about the 1st day of May, 1921, and has frequently demanded payment since said date, but that defendant has neglected, failed and refused to pay said sum or any part thereof or any interest thereon."

The answer was a general denial. The cause went to trial to a jury, resulting in a verdict and judgment for plaintiff in the sum of $ 1105. Motions for new trial and in arrest were unavailing and defendant appeals.

McClure's testimony shows that on Friday, April 29, 1921, after several interviews with defendant's agent Bahnsen, the latter presented to plaintiff for signature a form of contract, at the same time stating that defendant held an option on the property which expired that night, and that a contract must be signed that day or the option would expire, and that it could not be renewed or extended; that he had two other purchasers for the property, to either of whom he could make immediate delivery; that on the representations thus made plaintiff signed the contract to accommodate Bahnsen who was his friend; that at the same time plaintiff signed a check for $ 1,000 earnest money, payable to defendant; that Bahnsen told plaintiff in the conversation that he would be at plaintiff's office the following day (Saturday) with the said check and contract if the check was not signed that night by Mr. Watkins, and that if plaintiff did not want the property the check and contract would be returned to him. The contract was not signed by Watkins on the 29th, nor were the check and contract returned to McClure on Saturday.

Bahnsen testifying for defendant stated that on Saturday morning he called Mr. McClure over the telephone and told him the contract had not been signed by Watkins and that he had not been able to see him; that McClure answered "all right," or words to that effect; that the contract was signed by Watkins on Saturday the 30th, and the check for $ 1,000 was thereupon deposited in the bank to defendant's credit.

It is further in evidence that after McClure had signed said contract and before Watkins' signature thereto had been attached, three changes in said contract had been made, viz.: (1) The name of James M. Harner had been inserted as party thereto, as one of the sellers of the property; (2) the description of the property was changed by adding the words "and West Ten (10) feet of Lot 24 Hestleigh Addition, on addition to Kansas City, Mo., being 110 feet frontage on Linwood Bvd. . . ." (3) the following clause was inserted: "The seller agrees to pay as rent on said property an amount equal to the interest charge based on the amount of the purchase price of the property figured from the date of the transfer until July 1, 1921." The contract provided that possession of the property was to be given to the buyer on July 1, 1921.

McClure did not see Bahnsen again until Wednesday following the signing of the contract, at which time he went to the office of defendant and there saw both Ennis and Bahnsen. McClure stated that he wanted to write something in the contract which Ennis refused to permit. However, McClure had the desired insertion made in the copy held by him, as follows: "This contract shall be null and void, and the earnest money shall be returned to the purchaser at his option should the wording of this contract be changed in any manner after the contracting parties have signed."

Thereupon McClure went to Mr. Watkins and was told there never had been given an option on the property to defendant or anyone else. When McClure stated that his signature to the contract had been procured by Bahnsen through misrepresentation, Watkins said he would not hold him under the contract and thereupon surrendered to McClure his copy of the contract. Demand then was made upon defendant for the return of the $ 1,000 earnest money but was refused and this suit followed.

The evidence shows that Watkins had put a price upon the property of...