Orlann v. Laederich, No. 32617.

• Court: Missouri Supreme Court
• Writing for the Court: Bohling
• Citation: 92 S.W.2d 190
• Parties: S.S. ORLANN, Appellant, v. VICTOR LAEDERICH, MARIE LAEDERICH and A.L. MORGAN.
• Docket Number: No. 32617.
• Decision Date: 21 March 1936

92 S.W.2d 190 S.S. ORLANN, Appellant,
v.
VICTOR LAEDERICH, MARIE LAEDERICH and A.L. MORGAN. No. 32617. Supreme Court of Missouri. Division Two, March 21, 1936.

Appeal from Jackson Circuit Court. — Hon. Darius A. Brown, Judge.

[92 S.W.2d 191]

AFFIRMED.

C.W. Prince, James N. Beery and Walter A. Raymond for appellant.

(1) Plaintiff having been forced to take an involuntary nonsuit is entitled to the benefit of all the favorable evidence and favorable inferences. Randol v. Klines, Inc., 18 S.W. (2d) 505; Howard v. Zweigart, 197 S.W. 50; Gittings v. Jeffords, 239 S.W. 88; Luikart v. Miller, 48 S.W. (2d) 869. (2) Plaintiff's evidence made a submissible case of fraud. (a) Defendant Victor Laederich misrepresented the selling price of this property to a former purchaser named Barrett which misled and deceived the plaintiff to her injury. Monsanto Chemical Works v. Am. Zinc, Lead & Smelting Co., 253 S.W. 1008; 26 C.J., p. 1228, sec. 113. (b) Defendants' misrepresentation as to the income of the building constitutes actionable fraud and entitled plaintiff to go to the jury. Goar v. Belinder, 213 Mo. App. 330, 249 S.W. 980; Flack v. Wahl, 197 Mo. App. 10, 193 S.W. 58; Wendell v. Ozark Orchard Co., 200 S.W. 749; State v. Taylor, 73 S.W. (2d) 384. (c) Defendants represented the value of the Delmain Building to be $145,000. This representation was made stating that value as a fact and defendants are liable therefor. Luikart v. Miller, 48 S.W. (2d) 869; Finke v. Boyer, 56 S.W. (2d) 375. (d) Defendants' foreclosure of the property in question in violation of their agreement constitutes actionable fraud entitling plaintiff to recovery. (3) The court erred in refusing to submit the issue of conspiracy to the jury. Johnson v. Bray, 31 S.W. (2d) 1002; Browning v. Browning, 41 S.W. (2d) 868. (4) Defendants' representations as to the expenses, income, previous selling price and loan value of the Delmain Building were known to be false by the defendants at the time they were made. Luikart v. Miller, 48 S.W. (2d) 868; Stratton v. Dudding, 164 Mo. App. 22, 147 S.W. 517. (5) Plaintiff acted in reliance on the false representations of the defendants in making the deal for the Delmain Building. Monsanto Chemical Works v. Am. Zinc, Lead & Smelting Co., 253 S.W. 1008; Brigham v. Judy Inv. Co., 186 S.W. 23. (6) Plaintiff suffered damage by reason of her reliance on said false representations of the defendants. Thompson v. Lyons, 281 Mo. 430, 220 S.W. 945; Stoltzfus v. Howey, 54 S.W. (2d) 506; Wolfersberger v. Miller, 39 S.W. (2d) 764; 26 C.J., p. 1132, sec. 54; 12 C.J., p. 612; 12 R.C.L. 394; Dean v. Chandler, 44 Mo. App. 338; Wolfersberger v. Miller, 39 S.W. (2d) 765.

Clarence I. Spellman for respondents.

(1) The court cannot pass on the sufficiency of evidence necessary to make out a submissible case for the reason that appellant has not presented all the evidence as given at the trial but only her version of what a portion of the evidence was. (2) Even upon the portions of evidence presented and the manner of its presentation there is sufficient evidence to support the judgment. It is still insisted that culled, sifted and twisted as the evidence is, still it shows that the court's ruling was correct and judgment was entered for the right party. (3) Plaintiff's proof under her first amended petition consisted of only a scintilla of evidence. This is no longer sufficient to make a submissible case in Missouri. Proof under the petition was scant indeed. Sweeping charges made in plaintiff's pleading went unsupported. It may be urged that she did supply a "scintilla" of evidence. In this connection we recall that the scintilla doctrine no longer obtains in Missouri.

BOHLING, C.

Mrs. S.S. Orlann instituted suit against W.W. Barrett for the recovery of damages for fraud and deceit alleged to have been perpetrated in a transaction involving the sale and purchase of a leasehold estate. Thereafter, Victor Laederich, Marie Laederich, his wife, and A.L. Morgan were joined as parties defendant. Plaintiff, at the beginning of the trial, dismissed as to defendant Barrett. The court overruled plaintiff's motion to set aside an involuntary nonsuit, taken with leave at the close of plaintiff's evidence, and plaintiff appeals from the judgment entered in favor of defendants.

The case involves the transfers from Victor H. Laederich and Marie Laederich to W.W. Barrett and from W.W. Barrett to S.S. Orlann of a 99-year lease, providing for an annual ground rental of $7,200 and bearing date of January 1, 1914, on premises occupied by what is known as the Delmain building, Ninth and Main streets, Kansas City, Missouri. Mrs. Orlann is crippled and Mrs. G.S. Shore, her mother, acted as her agent in the negotiations leading up to her acquisition of the lease. All the parties involved in the transaction lived in Kansas City with the exception of Barrett, who was a banker of Sedalia, Missouri. Defendant Morgan was a part-time employee (clerk) of Laederich, and had a desk in the same office. The Laederichs acquired the lease in September, 1923. Thereafter, the Laederichs and Barrett agreed upon a trade for the lease. Laederich secured Charles K. Blender, of San Francisco, California, to act as "straw man" for him, and at Barrett's request, Morgan secured Edna L. Nelson, with whom Barrett was not acquainted, to act as "straw party" for Barrett. Miss Nelson and Laederich were not acquainted. The Laederichs, under date of March 24, 1924, assigned the lease to Miss Nelson in consideration of the transfer of two farms, aggregating 630 acres, in Pettis County, Missouri (subject to $40,000 indebtedness, secured by deeds of trust thereon), and a $70,000 indebtedness, evidenced by a note secured by a mortgage back on said leasehold estate. According to Morgan, under Barrett's instructions five notes aggregating $40,000, payable to the order of Charles K. Blender, and secured by a second mortgage on said leasehold, were executed by Nelson. This $40,000 transaction was no part of the trade between the Laederichs and Barrett, but was just "plastered on." The title to the Pettis County farms was not in Barrett, but the farms were conveyed to the Laederichs by the parties holding the record title. Charles K. Blender endorsed the $70,000 note and it was delivered to Mr. Laederich. He also endorsed the notes evidencing the $40,000, and these were delivered to Barrett. After acquiring the lease, Barrett paid Morgan $75 monthly to collect the rents and manage the building.

Reading an advertisement of Mr. Vogrin, a real estate agent of Kansas City, Mrs. Shore called on him. Vogrin showed her through the Delmain building, which she examined. She liked it. Vogrin told her all about the rents that were being received, and acted as agent for Barrett and for plaintiff, receiving, on behalf of plaintiff, a commission for his services. Vogrin showed her a statement purporting to set forth the income from and expenses of the Delmain building, which, however, he retained. She secured a duplicate of the statement from a Mr. Lentell, another realtor, made up, according to Lentell, from information obtained from Mr. Laederich, who had listed the property with him. Vogrin had referred Mrs. Shore to Laederich, and sometime in May, 1924, Mrs. Shore called at Laederich's office and had her only conversation with defendants Messrs. Laederich and Morgan. This conversation is the foundation of plaintiff's suit. Plaintiff's narrative of her testimony with reference thereto, reads: "... I found two gentlemen in the office and I asked for Mr. Laederich and Mr. Laederich got up from the chair and I told him I was Mrs. Shore and Mr. Laederich introduced me to Mr. Morgan, who was in the same office by another desk, and I asked Mr. Laederich if he is the owner of the mortgage on the 99-year lease on the Delmain building. He said, no; he wasn't the owner of the mortgage, that the owner of the mortgage is Mr. Blender... . And that he handles the mortgage for Mr. Blender and takes

92 S.W.2d 192

care of his business. I asked him if he is acquainted with the expenses and income on the Delmain building. He told me, yes; that Mr. Morgan collects the rents and that they have got the books in the office and he knows all expenses and the income." She showed Mr. Laederich the statement she secured from Mr. Lentell. This statement, after stating that the building was rented to good tenants under leases, except the third floor which was then vacant, read:

 "The annual rental is $21,600.00
                 Expenses:
                 Ground rental $7,200.00
                 Janitors and help 1,620.00
                 City heat 1,200.00
                 Light and water 240.00
                 Insurance 84.00
                 Taxes 2,100.00 12,444.00
                 __________
                 Net $9,156.00
                

"There is net a first mortgage of $70,000 at 7%, payable $4,000 per year for four years then $5,000 per year for four years and the balance in nine years. Owner will trade lease and improvements for good clear land.

 "W. J. Lentell."
                

The witness testified that Laederich looked over the statement and took out of his desk other statements which looked just like it; and, after comparing them, said "The statement is all right with the exception that your statement calls for $4,000 payment on the mortgage and we decided that we're going to collect $3,000 on the mortgages, four payments or five, and then will commence $5,000 payments; and he also made a remark as to the expenses on that statement, light and water, and he said `that includes power also.'" Mr. Morgan looked over the statement and said "The statement is correct." Plaintiff's narrative of the testimony continues: "I asked Mr. Laederich what he thought the property was worth. He made no reply, but asked Mr. Morgan at the next desk for his valuation of the property. Mr. Morgan said $145,000. Then Mr. Laederich said the building was worth `at least $145,000.' I asked Mr. Laederich if the building was sold for that price and he said the bankers in Sedalia paid $35,000.00. After...