Meyer v. Dubinsky Realty Co.

• Decision Date: 05 December 1939
• Docket Number: No. 25069.,25069.
• Citation: 133 S.W.2d 1106
• Parties: MEYER v. DUBINSKY REALTY CO.
• Court: Missouri Court of Appeals

133 S.W.2d 1106

MEYER v. DUBINSKY REALTY CO.

No. 25069.

St. Louis Court of Appeals. Missouri.

December 5, 1939.

Rehearing Denied December 19, 1939.

Appeal from St. Louis Circuit Court; Harry F. Russell, Judge.

"Not to be published in State Reports."

Action by Amanda F. Meyer against the Dubinsky Realty Company for money had and received. From a judgment for plaintiff, the defendant appeals.

Affirmed.

Dubinsky & Duggan and Montague Punch, all of St. Louis, for appellant.

Wm. L. Bohnenkamp and W. Paul Mobley, both of St. Louis (Louis M. Bohnenkamp, of St. Louis, of counsel), for respondent.

BENNICK, Commissioner.

This is an action by plaintiff, Amanda F. Meyer, to recover from defendant, Dubinsky Realty Company, certain purchase money which was had and received by defendant in connection with a transaction for the sale to plaintiff of two lots in a subdivision known as Corona Park, in Kirkwood, Missouri, the sale being made for an agreed price of $2,900, which was to include all the usual improvements in and about the lots.

The petition counted upon a written contract which defendant breached by its failure to make the improvements agreed upon, whereupon plaintiff discontinued any further payments upon the purchase price after she had meanwhile paid in the sum of $1,775.

For its answer, defendant denied specially that it had executed any written contract with plaintiff, and then concluded with a general denial of each and every other allegation contained in her petition.

Upon a trial to a jury, a verdict was returned in favor of plaintiff, and against defendant, for the principal sum of $1,775, with interest amounting to $872.87; and following the entry of judgment against it for the aggregate amount of $2,647.87, defendant has duly perfected its appeal to this court.

The evidence disclosed that in December, 1928, one C. H. Stewart first contacted plaintiff with reference to the purchase of the two lots in the Corona Park subdivision, which defendant, the owner of the land, had theretofore platted and laid out in lots for sale for residential purposes. The plat bore on its face the designation of one S. M. Grossman as "fiscal agent", and that Grossman's agency included the selling of lots in the subdivision was expressly admitted in the testimony of Frank Dubinsky, the president of defendant company. While Dubinsky denied that Stewart was likewise defendant's agent for the selling of the lots, there were many pertinent circumstances in the case which pointed strongly to the fact that he did occupy such status, so that upon the whole record the question of Stewart's agency for defendant was clearly one of fact for the jury to determine.

Stewart took plaintiff out to the subdivision and showed her the lots that he desired to sell her, informing her that the purchase price would be $2,900, which sum would include the cost of the improvements, by which was meant the construction of the streets, sidewalks, sewers, and the like, and the laying of mains for gas, water, and electricity.

Influenced by all such inducements, plaintiff concluded to purchase the lots, and on December 13, 1928, gave Stewart a check for $500 as part payment on the purchase price, which check she made payable to defendant in accordance with printed instructions appearing at the bottom of the earnest money receipt which Stewart gave her to "make checks payable to S. M. Grossman or Dubinsky Realty Company". This receipt was signed by Stewart personally, and along the top of it he wrote in with pen and ink that "this price is to include all improvements to be specified in the deed". As regards the making of the improvements, plaintiff testified that Stewart promised her that they would be put in during the spring of 1929, which, of course, would have been only a few months after the date of her purchase of the lots.

After taking note of the provision in the earnest money receipt that the purchase price of $2,900 was to include all the improvements "to be specified in the deed", plaintiff went down to Grossman's office on the following day for the purpose of finding out what was in fact specified in the deed with reference to the improvements.

Finding that the deed, as it had been prepared for execution by defendant's straw party, was entirely silent upon the matter of the improvements, plaintiff complained to Grossman, who thereupon wrote out and handed her a letter in which, in the capacity of "the undersigned seller" of the property, he purported to certify that the two lots sold to her should have all the improvements included in the purchase price of $2,900, and that the cost of the improvements would be paid by the seller of the property.

The above letter was written by Grossman on December 14, 1928, and on December 15th, in order to satisfy a further complaint that plaintiff had, he gave her a second letter reiterating the agreement with respect to the making of the improvements.

Upon receiving such two letters from Grossman, plaintiff finally accepted the deal, and then executed certain notes for the unpaid portion of the purchase price, which notes included a series of monthly notes of $25 each and a final note for $1,100, and were secured in their entirety by a deed of trust upon the lots. As we have already pointed out, the deed to plaintiff had been theretofore executed by defendant's straw party in whose name the title to the land was carried, and after the deed had been duly recorded, Stewart brought it out and delivered it to plaintiff.

Prior to the due date of each of the notes thus executed by plaintiff, notice that it was about to come due would be given her by defendant, and payment would in each instance be made by a check made payable to defendant and transmitted to it through the mail.

Along in the spring of 1930, plaintiff drove out to the location of her lots, and although she observed that none of the promised improvements had as yet been made, she offered no complaint to defendant, but, in reliance on the fact that defendant would live up to its agreement, continued to make her further payments as they fell due until in December, 1931, when she received notice of the approaching due date of the last of the series of monthly notes as well as of the note for $1,100. Upon receiving such notice, she again went out to the subdivision to see if the improvements had been meanwhile put in, and finding that they had not been made, she refused to pay her remaining notes, and employed counsel to represent her in the recovery of the sum of $1,775 which she had already paid in to defendant.

It was admitted that defendant subsequently instituted foreclosure proceedings, and on May 22, 1933, foreclosed under the deed of trust and took back the lots which had been sold to plaintiff.

As a matter of first insistence defendant challenges plaintiff's right to have recovered upon the contract pleaded, that is, upon a contract whereby defendant had obligated itself to sell plaintiff the lots in question for an agreed purchase price which should include, not only the consideration for the sale of the lots themselves, but also the cost of making the improvements in and about them. Defendant argues that the deed which plaintiff received must be taken as the final contract between the parties and as the measure of its own liability as the party executing it, and that inasmuch as the deed contained no reference whatever to the matter of the improvements, it is not to be taken as in any manner affected or controlled by the provisions of the earnest money receipt and the Grossman letters with respect to that feature of the transaction.

It is quite evident that in making its point defendant loses sight of the fact that this is not an action for damages for breach of contract, but instead is an action for money had and received by defendant which in equity and good conscience it ought to return to plaintiff because of its failure to have performed its agreement with respect to the making of the improvements. In this situation, what defendant must actually have in mind is the question of the competency of evidence tending to prove such an agreement as against an objection that the same might tend to vary or contradict the terms and provisions of the deed. Here the deed, as it was prepared by defendant itself, was designed to do nothing but evidence the conveyance of title to the lots, and did not purport to embrace the entire contract between the parties. Since the agreement with respect to the making of the improvements was wholly independent of and not inconsistent with the terms of the deed, it cannot be said that such agreement in anywise varied or altered the latter's provisions, but instead all such writings together constituted the contract between the parties, and evidence of the agreement with respect to the making of the improvements was therefore admissible in evidence in support of plaintiff's action for money had and received. Corn v. McDowell, Mo.App., 185 S.W. 235.

What has been said with reference to the above point is likewise dispositive of defendant's contention that the petition was insufficient for want of any charge of accident or mistake in the preparation of the deed, or of fraud perpetrated upon plaintiff by defendant. Suffice it merely to say that plaintiff did not count upon...