Pickel v. McCawley

• Decision Date: 01 December 1931
• Docket Number: No. 29630.,29630.
• Parties: EMMA PICKEL, BERNARD G. PICKEL, IDA K. GARCIA, GEORGE A. PICKEL, ESTELLE PICKEL, EDWARD C. PICKEL and LUCILLE PICKEL v. O.J. McCAWLEY, JAMES P. BLAKE, WILLIAM L. BECKMANN, BERNARD F. DICKMANN, WILLIAM W. BUTTS, CHAUNCEY P. HEATH, WILLIAM H. PROETZ, PETER A. WILTZ, President of Property Owners' Association, MICHAEL J. O'BRIEN, Secretary of Property Owners' Association, PETER A. WILTZ, JETTA C. WILTZ, BESSIE MULLANEY, ANNIE LANDAU, MORRIS LANDAU, MARY BRZOZOWSKI, Otherwise Known as BOWSKI, ALEXANDER BRZOZOWSKI, Otherwise Known as BOWSKI, GENEVA INVESTMENT COMPANY, ROSA WALTERS, WILLIAM F. WALTERS, LOUIS CICARDI, JR., Administrator, and JAMES R. TIERNAN, Appellants.
• Court: Missouri Supreme Court

44 S.W.2d 857

EMMA PICKEL, BERNARD G. PICKEL, IDA K. GARCIA, GEORGE A. PICKEL, ESTELLE PICKEL, EDWARD C. PICKEL and LUCILLE PICKEL v. O.J. McCAWLEY, JAMES P. BLAKE, WILLIAM L. BECKMANN, BERNARD F. DICKMANN, WILLIAM W. BUTTS, CHAUNCEY P. HEATH, WILLIAM H. PROETZ, PETER A. WILTZ, President of Property Owners' Association, MICHAEL J. O'BRIEN, Secretary of Property Owners' Association, PETER A. WILTZ, JETTA C. WILTZ, BESSIE MULLANEY, ANNIE LANDAU, MORRIS LANDAU, MARY BRZOZOWSKI, Otherwise Known as BOWSKI, ALEXANDER BRZOZOWSKI, Otherwise Known as BOWSKI, GENEVA INVESTMENT COMPANY, ROSA WALTERS, WILLIAM F. WALTERS, LOUIS CICARDI, JR., Administrator, and JAMES R. TIERNAN, Appellants.

No. 29630.

Supreme Court of Missouri.

Division Two, December 1, 1931.

Appeal from Circuit Court of City of St. Louis. — Hon. Moses Hartmann, Judge.

AFFIRMED.

Frank C. O'Malley for appellants.

(1) It is improper to admit parol testimony of the contents of a written instrument in the absence of a showing that it is lost or destroyed, and there must be proof of diligence and search on the part of a party offering such parol testimony. Johnson v. Railroad, 251 S.W. 719; Cheney v. Eggert, 197 Mo. App. 649; Lohnes v. Baker, 156 Mo. App. 397. (2) In the absence of a notice to produce, parol testimony of the contents of the alleged covenant was improper. Merrill Chemical Co. v. Nickells, 66 Mo. App. 678. (3) Emma Pickel was a party plaintiff, and her admissions against her were admissible without any foundation. Atkinson v. School of Osteopathy, 199 Mo. App. 251; Pledge v. Griffith, 199 Mo. App. 303; Owens v. Ry. Co., 95 Mo. 169; Sanders v. Clifford, 72 Mo. App. 548; Fulton Bank v. Nichols, 202 Mo. 309; Heller v. Ferguson, 189 Mo. App. 484. (4) Fraud is never presumed and the burden of proof is upon the plaintiff. Crider v. Meatte, 7 S.W. (2d) 691. Mrs. Pickel's alleged failure to read the covenant before signing same, and while the same was in her possession, precludes any pretense that she was defrauded. Bradford v. Wright, 145 Mo. App. 623; Hughey v. Pruitt, 196 S.W. 1065; International Book Co. v. Anderson, 179 Mo. App. 631; Crim v. Crim, 162 Mo. 544; Johnston v. Ins. Co., 93 Mo. App. 580. (5) To attach a condition to a deed by parol testimony the evidence must be so clear as to leave no room for reasonable doubt. Worley v. Dryden, 57 Mo. 226; Crider v. Meatte, 7 S.W. (2d) 691; Bennett v. Ward, 272 Mo. 671. (6) Whether the enforcement of a covenant would result in damage or benefit to the parties is immaterial. Hall v. Webster, 7 Mo. App. 56; St. Louis Safe Deposit Bank v. Kennett Estate, 101 Mo. App. 370; Kenwood Land Co. v. Hancock, 169 Mo. App. 715; Reed v. Hazard, 187 Mo. App. 547; Miller v. Klein, 177 Mo. App. 557; Sanders v. Dixon, 114 Mo. App. 229. (7) There are no negroes in the covenanted district, and what has happened outside the district should not effect the validity of the covenant. Noel v. Hill, 158 Mo. App. 426; Pierce v. Trust Co., 278 S.W. 398; Reed v. Hazard, 187 Mo. App. 547; Fete v. Foerstel, 159 Mo. App. 75. (8) The covenant here should be enforced so long as it is beneficial to the defendants' property. Noel v. Hill, 158 Mo. App. 426; Pierce v. Trust Co., 278 S.W. 398; Thompson v. Langan, 172 Mo. App. 64; Reed v. Hazard, 187 Mo. App. 547; Fete v. Foerstel, 159 Mo. App. 75; Sanders v. Dixon, 114 Mo. App. 229; Spahr v. Cape, 143 Mo. App. 115.

Banister, Leonard, Sibley & McRoberts for respondents.

(1) The question of the sufficiency of the evidence to prove a paper lost or destroyed, before admitting secondary evidence is one that rests largely in the sound judicial discretion of the trial court. This court defers to the discretion of the trial court, even in an equity appeal. Hume v. Hopkins, 140 Mo. 65; Lyles v. Lyles, 183 Mo. 326; Wells v. Pressy, 105 Mo. 164; Meyers v. Russell, 52 Mo. 26; Stephens v. Metzger, 95 Mo. App. 609; Lohnes v. Baker, 156 Mo. App. 402; State ex rel. v. Yount, 186 Mo. App. 258; Parish v. Casner, 282 S.W. 392; Vining v. Ramage, 319 Mo. 65. (a) There was ample evidence before the trial court of the loss or destruction of the first restriction paper. Appellants had custody of the paper and themselves claimed the paper was lost or destroyed, and cannot now change their position. (b) Plaintiffs' petition and amended petition gave specific notice to defendants that this lost restriction paper and its signing by Mrs. Pickel was brought directly in the case. Where the nature of the action or pleading gives notice to the adverse party that a paper in his possession will be brought in question in the case, and that it is incumbent on him, in his own interest, to produce the paper, no other notice is necessary. Hart v. Robinett, 5 Mo. 11; 22 C.J. 1060, sec. 1360. (2) The tendered evidence of Mrs. Jones was properly excluded by the trial court, because: (a) The evidence was not offered in good faith. (b) Or, at least, the exclusion of the evidence was, at worst, harmless, because the evidence offered was of trivial importance and could not affect the decision of this case, and was merely cumulative of what had been proved in effect by another witness. It is harmless error to refuse to admit cumulative evidence. The evidence offered could bear on only the issue of misrepresentation and fraud. It could not bear on any other of the several determinative issues in the case, and which issues were decided against appellants by the trial court. (c) This court in this equity suit may consider the evidence as admitted, and decide the case with the offered evidence before it. Lindhorst v. St. Louis Prot. O. Home, 231 Mo. 379. (3) Mrs. Pickel and others were induced by, misrepresentation and fraud in law to sign the restriction paper in question. She signed the paper on condition that all others would sign, especially in her half block, and this condition was not fulfilled. Equity will grant relief under such circumstances. 26 C.J. 1121, sec. 48, and p. 1101, sec. 32. A person may be guilty of fraud in law, though he derive no benefit, and though he made the false statement in good faith, or concealed facts he should have disclosed. Brownlee v. Hewitt, 1 Mo. App. 360; Hayes v. Delzell, 21 Mo. App. 679. (4) The paper in question was materially altered by removing two signatures therefrom while in the custody of the officers of the association, and without the permission or knowledge of Mrs. Pickel or the other signers. The paper was rendered void, and it could not again be made valid without the permission of all parties to the paper, merely by having the signatures erased affixed again. McMurtrey v. Sparks, 71 Mo. App. 126. The intent with which the paper was altered is immaterial. Koons v. Car Co., 203 Mo. 227. The alteration did not have to be a material one to invalidate the paper. Harvester Co. v. Blair, 146 Mo. App. 374. (5) The restriction paper in question is unenforceable. All owners of property embraced in the strip of ground covered by the paper were contemplated as parties and made parties to the paper. All did not sign, and the paper is therefore lacking in mutuality and in consideration, or the consideration has failed. Also a life tenant alone could not restrict any interest in property in this paper, which contemplated the signatures of owners of the fee. 13 C.J. 305, sec. 128, and p. 331. Restrictions are to be strictly construed. Any reasonable and substantial doubt is to be resolved against the restriction. Bolin v. Tyrol Inv. Co., 200 S.W. 1059. (6) The object of the restriction paper in question here, and the other series of restriction papers, was to keep negroes out of the district. This object has been frustrated. The district has since so changed that it is now impractical, impossible, unjust and inequitable to enforce this restriction agreement. The district can never be restored as it was. When the purpose of a restriction covenant no longer can be accomplished, and it would be oppressive and inequitable to enforce it, a court of equity will not enforce the paper, and, in a proper proceeding, will declare the covenant null and void and a cloud on the title of the complainant. Koehler v. Rowland, 275 Mo. 573; Trustees of Columbia College v. Thacher, 87 N.Y. 311; Starke v. Gardner, 194 N.C. 74; Downs v. Kroger, 200 Cal. 743; American v. Deane, 132 N.Y. 355; Getchall v. Lawrence, 201 N.Y. 121; Gilmore v. Keogh, 241 Ill. 28; Kneip v. Schroeder, 255 Ill. 621; Jackson v. Stevenson, 156 Mass. 496; Page v. Murray, 46 N.J. Eq. 325.

WESTHUES, C.

Plaintiffs on the 19th day of June, 1927, filed an amended petition in the Circuit Court of the City of St. Louis, asking for the removal of restrictions that were placed on their property by reason of a restriction agreement dated the 12th day of February, 1924, and filed for record March 11, 1924. The petition charges that in the year 1923, the property owners of the district on both sides of Finney and Cook avenues from Grand Avenue on the east to Vandeventer Avenue on the west, decided to enter into a restriction agreement to prevent negroes from buying or obtaining any of the homes within the boundaries of the district and to preserve the district for the Caucasian race; that meetings were held by the property owners within the district of Finney Avenue and Cook Avenue, with a view to perfecting an organization to be known as "Property Owners Association;" that a president was elected at one of these meetings; that the plan was to have the entire district restricted; that the plaintiff, Emma Pickel, and others, signed the agreement under the inducement, representation and with the understanding that all of the property owners in the entire district or neighborhood, and particularly in the two blocks on both sides of Finney Avenue between Vandeventer and Grand Avenue, should and would sign the restriction before the same or any of such restrictions would become binding, or be recorded. Plaintiffs further allege that the officers of the...