Moberly v. Schaperkoetter

• Decision Date: 08 January 1934
• Parties: O. H. MOBERLY, COMMISSIONER OF FINANCE, FARMERS & MERCHANTS BANK, RESPONDENTS, v. HANNA SCHAPERKOETTER, ADMX., ETC., APPELLANT
• Court: Kansas Court of Appeals

67 S.W.2d 121

228 Mo.App. 378

O. H. MOBERLY, COMMISSIONER OF FINANCE, FARMERS & MERCHANTS BANK, RESPONDENTS, v. HANNA SCHAPERKOETTER, ADMX., ETC., APPELLANT

Court of Appeals of Missouri, Kansas City

January 8, 1934

Appeal from Circuit Court of Gasconade County.--Hon. R. A. Bruer Judge.

Reversed and remanded. (with directions).

James Booth and Joseph T. Tate for respondent.

L. G Graf, Jesse H. Schaper and Randolph H. Schaper for appellant.

OPINION

TRIMBLE, J.

This is an action brought on March 15, 1933, in behalf of the Farmers & Merchants Bank of Owensville, Gasconade county, Missouri (which was then insolvent and in the hands of O. H. Moberly, Commissioner of Finance of Missouri, for the purpose of liquidation), to recover damages from the estate of Herman Stritzel, deceased, for refusing to perform an alleged contract for the purchase of land charged to have been made, during his lifetime, by his final and accepted bid at a foreclosure sale of said land under a mortgage with power of sale in case of default in the payment of the secured debt when due.

The mortgage was given to said bank by Charles Stubblefield, Jr., and wife on 142 acres of land in said county to secure their note for $ 5400. Said note and mortgage were executed and delivered to said bank May 2, 1922, the note being due one year after date with six and one-half per cent interest per annum from date until paid. Said mortgage contained the usual provision that if the makers thereof should pay said debt and all interest thereon when due, then said mortgage should be void, otherwise to remain in full force and effect and said bank, its successors or assigns, could proceed to sell the said real estate at public vendue to the highest bidder, "at the premises described in said county" for cash, first giving thirty days' public notice of the time, terms and place of sale and of the property to be sold, by advertisement in some newspaper printed and circulated in said county where said premises are situated, and that upon such sale and the payment of the purchase money, said bank should execute and deliver a conveyance of the property sold, to the purchaser or purchasers thereof "and any statement of facts or recital by said Farmers & Merchants Bank in such conveyance in relation to the advertisement, sale, receipt of the purchase money or execution of such conveyance, should be received as prima-facie evidence of the truth thereof," etc.

Because of default made in the payment of said debt and interest, foreclosure proceedings were commenced, and on the 12th day of August, 1932, after having given thirty days' public notice as required, the land was sold at public vendue in foreclosure; and plaintiffs allege that at said sale "said Herman Stritzel bid, contracted and agreed to pay said bank for said premises, the sum of five thousand, two hundred dollars ($ 5,200); that at said sale said Herman Stritzel was the highest and best bidder for said real estate and his said bid was accepted by said bank." And the same was stricken off and sold to him at that sum; "that said bank tendered and offered to deliver to him a good and sufficient mortgagee's deed to said premises; that said Herman Stritzel paid to said bank as a part of the purchase price for said real estate, the sum of $ 274.78 but has failed and refused, and ever since has failed and refused, to pay the balance due on said purchase price as evidenced by his said bid, contract and agreement, though often requested so to do."

Thereafter, and by reason of said Herman Stritzel's failure and refusal to pay the rest of his bid, the land was readvertised and sold under foreclosure in due and proper form, but at this last sale, it did not bring as much as it did at the first sale, whereby plaintiffs have been damaged in the sum of $ 1500 for which judgment is prayed.

The petition then alleged that said Herman Stritzel, since making said bid, departed this life intestate, and, defendant has been appointed, and is now, the duly qualified administratrix of his estate.

The answer admitted the death of said Stritzel, "since the date of the alleged sale of the real estate mentioned in said petition" and also admitted the appointment and qualification of defendant as his administratrix, but denied generally every other allegation in the petition.

The answer then set up that the said Herman Stritzel--

"prior to and at the time of the alleged sale of the real estate mentioned in said petition, was addicted to the use of intoxicating liquors and alcoholic drinks to such an excess to make him mentally incompetent and irresponsible for his actions; that at the time of the making of the contract and agreement alleged in the petition, said Herman Stritzel was suffering from excessive use of intoxicating liquors and alcoholic drinks to such an extent that by reason thereof he was mentally incompetent and incapable of entering into and making the contract of sale, as alleged in the petition herein, in that he did not know and understand the meaning thereof, and the contract or alleged agreement of sale is not and never was binding upon the said Herman Stritzel, or upon this defendant, as his administrator and legal representative."

The answer further set up--

"that the alleged agreement, for the sale of the lands referred to in said petition and sought to be enforced in this action, is verbal only, and not in writing, and signed by Herman Stritzel, named in said petition, in his lifetime, nor by any person by him thereto lawfully authorized in writing, and by reason thereof, this defendant pleads the Statute of Frauds in such cases made and provided as a bar to this action."

The answer further set up as a counterclaim to plaintiffs' cause of action--

"that plaintiffs are indebted to the defendant, as administratrix of the estate of said Herman Stritzel, deceased, in the sum of two hundred seventy-four dollars and eighty-eight cents ($ 274.88), for and on account of moneys had and received by the plaintiffs to and for the use of the defendant, as administratrix of the estate of said Herman Stritzel, deceased, on the 12th day of August, 1932."

The reply, after denying generally the matters alleged as a defense, set up a ratification by Stritzel of his bid, in paying a part thereof and promising to pay the balance and by taking possession of the premises and renting same to another, and by offering to sell said premises, all done while in the full possession of his faculties.

Among the instructions given by the court at defendant's request, is her instruction No. 3, as follows:

"The court instructs the jury that if the jury shall find and believe from the evidence that the contract of sale alleged in the petition and sought to be enforced in this action was verbal only and not in writing, signed by Herman Stritzel nor by any person by him thereto lawfully authorized in writing, then you will find that said contract of sale was void under the Statute of Frauds and your verdict must be for the defendant."

At the close of the trial the jury returned a verdict against plaintiffs on their petition, but found for defendant on her counterclaim in the sum of $ 274.88.

Plaintiffs' motion for new trial was sustained by the trial court--"because of error of the court in giving to the jury, at the request of defendant, defendant's instruction number three." Thereupon defendant appealed.

No objection is raised as to the form or sufficiency of the mortgage, nor as to the regularity or sufficiency of any of the steps taken to foreclose the same, nor as to the holding of the sale of land at public vendue in such foreclosure wherein Herman Stritzel made his bid of $ 5200, for failure to comply with which, damages are sought herein. The only contentions are that Stritzel was incapacitated by reason of being drunk, and that in the contract of sale, the Statute of Frauds was not complied with and therefore the alleged contract was and is null and void.

The sale was conducted by Mr. Tate, an attorney, employed by the mortgagee bank to attend to the foreclosure and conduct the foreclosure sale for it.

At the trial, evidence was introduced by the respective parties pro and con, on the question of whether said Herman Stritzel, at said sale and at the time of making said bid, was so intoxicated that he did not know what he was doing; but, as the court gave only one reason for sustaining the motion for new trial, thus, in effect, overruling it on all other grounds, we need not set out the evidence on the issue of incapacity by reason of intoxication. [Yuronis v. Wells, 17 S.W.2d 518.]

The evidence in any way bearing upon what took place at the sale and upon the issue of whether the Statute of Frauds was complied with, so far at least as plaintiffs' side is concerned, is, in substance, as follows:

Joseph P. Tate, who conducted the sale, as agent and attorney for the bank, testified, in substance, that:

His occupation was that of a lawyer and he was employed by the said bank to sell the land under the Stubblefield mortgage on August 12, 1932; after securing a copy of the notice of sale and proof of publication from the publisher of the paper, he in company with the president, cashier and one of the directors of the bank, went out to the Stubblefield farm, mentioned in the mortgage (the place of sale designated therein). The sale was held at one o'clock in the afternoon. Fifty people were present. He read the notice of the mortgagee's sale and asked for bids. Oscar Jose and Herman Stritzel were the main bidders; the bidding went on until Mr. Jose bid $ 5,150, and then it began to rain; some went under the sheds and some went into the house; Mr. Stritzel also went into the house and he (Tate) then went to...