Peetz Brothers Liv. & Undk. Co. v. Vahlkamp

• Decision Date: 16 November 1928
• Docket Number: No. 27154.,27154.
• Citation: 11 S.W.2d 26
• Parties: PEETZ BROTHERS LIVERY AND UNDERTAKING COMPANY, Appellant, v. HENRY VAHLKAMP AND JOHN F. DICKMANN REAL ESTATE COMPANY.
• Court: Missouri Supreme Court

11 S.W.2d 26

PEETZ BROTHERS LIVERY AND UNDERTAKING COMPANY, Appellant, v. HENRY VAHLKAMP AND JOHN F. DICKMANN REAL ESTATE COMPANY.

No. 27154.

Supreme Court of Missouri. Division One.

November 16, 1928.

Appeal from Circuit Court of City of St. Louis. — Hon. Wilson A. Taylor, Judge.

AFFIRMED.

Luke E. Hart and Richard C. Hart for appellant.

(1) The court erred in failing and refusing to admit evidence that this court had held the St. Louis zoning ordinance to be invalid and by then failing and refusing to instruct the jury that the said zoning ordinance had been so held invalid. (2) Vahlkamp appointed Joseph F. Dickmann Real Estate Company his agent to negotiate a sale of the property. Plaintiff entered into a contract to purchase the property and paid five hundred dollars on account thereof. The agent submitted that contract to Vahlkamp for his approval and thereafter represented to the plaintiff that Vahlkamp had approved the contract. If this was true, then Vahlkamp is liable to the plaintiff. If it was not true, then such representation was reckless and willful and the agent is liable to the plaintiff. Wright v. Baldwin, 51 Mo. 269; Blakely v. Bennecke, 59 Mo. 193; Lapsley v. McKinstry, 38 Mo. 247. (3) Dickmann represented to the Peetz brothers that Vahlkamp had approved the contract. There was no reasonable ground for doubt upon that question, and it was properly submitted to the jury, which decided in plaintiff's favor. There was no such "substantial conflict in the evidence" as would prevent a review of the action of the trial court in granting a new trial. Bank v. Wood, 124 Mo. 76; Parker v. Cassingham, 130 Mo. 348; Shuette v. Transit Co., 108 Mo. App. 186; Van Liew v. Barrett, 144 Mo. 509; Higgins v. Higgins, 343 Mo. 171; Herndon v. Lewis, 175 Mo. 116. Where the jury arbitrarily disregards uncontradicted testimony it is the right of the trial judge to set aside the verdict and grant a new trial, but where the evidence substantially supports the verdict for the court to interfere constitutes an invasion of the province of the jury. Hipsley v. Railway Co., 88 Mo. 253.

McDonald & Just for respondent Henry Vahlkamp.

(1) No case was made for the jury as to defendant Vahlkamp because (a) it was not shown that he approved the alleged contract and (b) because the Statute of Frauds was a bar to plaintiff. Sec. 2169, R.S. 1919; Johnson v. Fecht, 185 Mo. 335; Hawkins v. McGroarty, 110 Mo. 546; Fleming v. Anderson, 232 S.W. 718; Kilpatrick v. Wiley, 197 Mo. 161. (2) No errors were committed but if there were any, they were immaterial and non-prejudicial for: (a) Plaintiff was not entitled to go to the jury as to defendant Vahlkamp. Peppes v. St. Louis-San Francisco Ry. Co., 316 Mo. 1104; Bastian v. Young, 152 Mo. 317; Cass County v. Bank, 157 Mo. 133. (b) None of the alleged errors affect the only issue as to defendant Vahlkamp, i.e., whether he approved the contract.

George P. Burleigh for respondent Joseph F. Dickmann Real Estate Company.

(1) The verdict was clearly against the weight of the evidence and the trial court properly exercised its discretion in granting a new trial. Reissman v. Wells, 258 S.W. 43; First Nat. Bank v. Wood, 124 Mo. 72; Herndon v. Lewis, 175 Mo. 116; Haven v. Mo. Pac. Ry. Co., 155 Mo. 216. (2) The instruction in the nature of a demurrer to the evidence offered by respondent at the close of plaintiff's case was a proper one, and the court erred in failing to give it. The granting of a new trial on that ground was therefore a proper order. Under the law, the case should not have been submitted to the jury. Lanitz v. King, 93 Mo. 513; Tausig v. Mill & Land Co., 124 Mo. App. 209; Rucker v. Harrington, 52 Mo. App. 481; Warren v. Mfg. Co., 161 Mo. 112; Newman v. Bank of Watson, 70 Mo. App. 135; Last Chance Mining Co. v. Tuckahoe Mining Co., 202 S.W. 287; Refrigerating Co. v. Teasdale Co., 211 S.W. 693; Ford v. Presnell, 233 S.W. 502.

GENTRY, J.

This is an action for damages based upon an alleged contract with plaintiff to sell certain real estate in the city of St. Louis to it for twenty thousand dollars, which it is alleged defendants afterwards sold to another party; in other words, a breach of contract.

The petition alleged that the plaintiff is a business corporation engaged in the undertaking business in said city; that the defendant, Joseph F. Dickmann Real Estate Company, Inc. (hereinafter called the real estate company), is a corporation engaged in the real estate business in said city, and that the defendant Henry Vahlkamp was the owner of a brick residence in said city, situated at 3545 Lafayette Avenue. That on February 10, 1921, defendants entered into an agreement with plaintiff in writing, whereby they agreed to sell said real estate to plaintiff, and plaintiff agreed to buy the same for the sum of twenty thousand dollars, said contract to be complied with on or before March 10, 1921. It was further stated in the petition that the terms of the contract were five thousand dollars to be paid in cash, and the balance payable two thousand dollars in one year, two thousand dollars in two years, two thousand dollars in three years, two thousand dollars in four years and seven thousand dollars in five years, with interest at six per cent, deferred payments to be secured by a first deed of trust. That at the time of the execution of said contract the defendants accepted from plaintiff as earnest money and part payment of the purchase price for said property the sum of five hundred dollars. Plaintiff then alleged that it was ready and willing to fulfill and consummate the agreement in all respects, but that the defendants on the 25th of February, 1921, conveyed said property to one Frank L. Root and Laura Root, his wife. By reason of the breach of said contract, plaintiff prayed judgment in the sum of ten thousand dollars, together with said payment of five hundred dollars.

Defendants filed a joint answer, which consisted, first, of a general denial; second, a plea of the Statute of Frauds, alleging that the agreement was not binding upon defendant Vahlkamp as he had not authorized defendant real estate company in writing to execute the alleged agreement; third, that the alleged agreement to sell was subject to the approval of defendant Vahlkamp, the owner of the property, that he did not approve of said agreement, but on the contrary disapproved of the same; and, fourth, that defendants tendered five hundred dollars to plaintiff before the institution of this suit.

A trial before a jury resulted in a verdict in favor of the defendant Vahlkamp, but judgment in favor of the plaintiff and against the real estate company in the sum of twenty-five hundred dollars. Within the proper time, motion for a new trial was filed by the real estate company, and sustained by the court on the ground that the verdict was against the weight of the evidence and that the court erred in refusing to sustain a demurrer to the evidence offered by defendant real estate company. Plaintiff moved for a new trial as to defendant Vahlkamp, but his motion was overruled. From these orders and judgments plaintiff has appealed.

Frederick Peetz and Joseph Peetz testified in substance that they were engaged in the undertaking business in St. Louis and desired to purchase a new location; that Barney Dickmann, an officer of the real estate company, showed them the residence occupied by defendant Vahlkamp; that they inspected the property carefully and were told that the price was twenty-two thousand five hundred dollars. They then offered Dickmann twenty thousand dollars, and he said he would submit the offer to defendant Vahlkamp. A paper was then prepared, which is entitled "receipt for earnest money," and it was signed by defendant real estate company and plaintiff, but not signed by defendant Dickmann. The paper is as follows:

RECEIPT FOR EARNEST MONEY.

                         St. Louis, Mo., February 10th, 1921
                

Received of Peetz Bros. Livery and Undertaking Company the sum of five hundred (500) and no/100 dollars, as earnest money and part purchase money for a certain parcel of ____ improved property, lying in the city of St. Louis, State of Missouri, in City Block No. 1289 and having a front of 120 feet on the north side of Lafayette Avenue by a depth of 130 feet, more or less to an alley, together with all improvements thereon and known as 3545 Lafayette Avenue, screens, shades and lighting fixtures included in sale, which property is this day sold to Peetz Bros. Livery and Undertaking Co., for the total sum of twenty thousand (20,000) and no/100 dollars payable as follows: Five thousand (5,000) and no/100 dollars cash, and balance of $15,000 payable as follows: $2,000 due in 1 year, $2,000 due in 2 years, $2,000 due in 3 years, $2,000 due in 4 years and $7,000 due in 5 years, with interest on the deferred payments at the rate of 6 per cent, payable semi-annually; said deferred payments to be secured by first deed of trust on said premises. The title to said property to be perfect, and to be conveyed by warranty deed, free from liens and encumbrances, except the taxes for the year 1921 and thereafter and which the undersigned purchaser assumes and agrees to pay; also subject to restrictions recorded and it is understood and agreed that unless this property can be used for an undertaking establishment this contract is to be null and void. Possession to be given on or before May 1st, 1921. Water license, taxes and insurance to be adjusted to date of transfer of property.

If upon examination the title be found imperfect, and cannot be perfected within a reasonable time, said purchaser is to be paid a reasonable cost of examining the title, and the earnest money is to be refunded.

This sale under this contract to be closed on or before March 10th, 1921, at the office of Jos. F. Dickmann R.E. Co., and if not closed by that time, owing to the failure or neglect of the purchaser to comply with the terms herein, the...