Pigg v. Robertson

• Decision Date: 04 April 1977
• Docket Number: No. KCD,KCD
• Citation: 549 S.W.2d 597
• Parties: Joseph PIGG, Appellant, v. E. J. ROBERTSON, Respondent. 27907.
• Court: Missouri Court of Appeals

Page 597

549 S.W.2d 597

Joseph PIGG, Appellant, v. E. J. ROBERTSON, Respondent.

No. KCD 27907.

Missouri Court of Appeals, Kansas City District.

April 4, 1977.

William B. Morgan, Campbell, Erickson, Cottingham, Morgan & Gibson, Kansas City, for appellant.

Clyde G. Meise, P. Thomas Loughlin, Meise, Cope & Jarrard, Kansas City, for respondent.

Before SHANGLER, P. J., and WELBORN and HIGGINS, Special Judges.

ROBERT R. WELBORN, Special Judge.

Action for damages for breach of confidential and fiduciary relationship and alternatively for declaration of a constructive trust. At the close of plaintiff's evidence in a trial to a jury, the court sustained defendant's motion for a directed verdict and judgment was entered against plaintiff. Plaintiff appeals.

Joseph Pigg and his wife lived in a rural area, near Oak Grove, Missouri. Pigg, formerly a farmer, was in the water hauling business. He had occasionally dealt in real estate. In early September, 1971, Frank Robinson, an Oak Grove real estate agent, told Pigg that a 100-acre farm, known as the "Church farm" and about a mile south of Pigg's place, was for sale for $25,000. Pigg was familiar with the farm and was interested in buying it. Because most of his assets were owned jointly with his wife, Pigg required her cooperation which she was reluctant to give.

On Sunday, September 12, 1971, Robinson again came to Pigg's farm house and asked Pigg whether he was ready to buy the farm. Robinson told Pigg he would be showing the farm to another prospective purchaser the next day. Pigg told Robinson he was interested, but his wife opposed the deal. That evening, however, his wife agreed to go along with her husband's idea.

Early in the morning of September 15, 1971, Pigg went to the Commercial Bank of Oak Grove to speak with its president, Mr. Hollis Dyer, about arranging a loan to buy the farm. Pigg had been a customer of the bank for about ten years and had made twelve to fifteen loans there over the years, dealing, with one exception, with Dyer. The one exception was when he dealt with Jim Brown at the bank on a loan for a water truck.

Pigg went into the bank and asked a teller if he could see Mr. Dyer. The teller told Pigg that Dyer was out of town and said "You can talk to Mr. Robertson." She directed Pigg to the office usually occupied by Dyer.

Robertson, a stranger to Pigg, was seated at the desk usually occupied by Dyer. Pigg introduced himself and proceeded to tell Robertson of his interest in purchasing the Church farm and in needing a loan for that purpose. Pigg described the farm and explained to Robertson the notes which he held and which he desired to use as collateral. Robertson told Pigg: "Well, I just can't use that type of collateral for a loan. You would have to talk to Mr. Dyer when he comes back." The conversation between Pigg and Robertson lasted three to five minutes. Pigg learned from Jim Brown that Dyer would be back on Friday.

Robertson did not tell Pigg that he was not an employee of the bank. He in fact was not. He was vice-president of the Corporation Service and Investment Company. That company had contracted with the Commercial Bank for an operational audit and Robertson was in the bank in that regard. Robertson had a degree in banking, and had worked in a bank in Kansas.

On Thursday, September 9, Dyer had told Robertson that the Church farm was for sale. (According to Robertson, the farm was described to him as the "Cox farm." The place had been previously owned by Church, but Robertson did not know the place by that name.) The next day Robertson went over the farm with Dyer and then he made an appointment with Robinson, the real estate agent, to go out to the farm with him on Monday. The two men went to the farm on Monday, but no contract of sale was entered into. On Thursday, Robertson obtained a commitment from the bank in Buckner for a loan to cover half the $25,000 purchase price of the farm.

Robertson, called by Pigg as an adverse witness at the trial, stated, on "cross-examination" by his own attorney, that from Pigg's conversation with him he was not aware that Pigg was interested in purchasing the farm in which Robertson was also interested. Robertson testified that he thought Pigg wanted to sell the bank a contract for a deed and that Pigg did not tell him he wanted to obtain a loan to purchase a farm.

Some hour and a half after his conversation of the 15th with Pigg, Robertson called Robinson and asked him to prepare a written contract for the sale of the farm. A contract for sale was entered into by Robertson on the 15th.

Pigg saw Dyer on the 17th and told him he wanted to talk about a loan to purchase the Church farm. Dyer told Pigg the farm had already been purchased by Robertson. Robertson sold the farm some seven months later for $45,000.00.

Plaintiff's petition alleged, in the circumstances of Robertson's presence in the bank and by Robertson's undertaking to listen to Pigg's communication, Robertson placed himself in a position of trust and confidence with regard to Pigg and the disclosure made to him by Pigg, imposing upon Robertson a duty to disclose to Pigg all material information relating to the subject matter of the conversation known to Robertson and a further duty not to divulge or personally profit from the information received from Pigg. The petition alleged that defendant violated such duty by not advising Pigg of his interest in the farm and by purchasing the farm himself after he had heard of Pigg's interest.

After evidence of basically the foregoing facts, offered by plaintiff, the trial court sustained defendant's motion for a directed verdict, stating:

" * * * (A)lthough the evidence may be sufficient to establish a reasonable belief in the mind of the plaintiff that he was dealing with someone who had some authority and therefore that there might have been a confidential relationship, there is no evidence, or insufficient evidence, of any breach of any such duty of any such relationship, if such were established."

In this court, appellant naturally agrees with the trial court's conclusion that a confidential relation existed between the parties, but disagrees with the conclusion that there was no evidence of a breach of duty arising out of that relationship. Respondent supports the trial court's finding in that regard and also contends that the evidence did not support the finding of a confidential relationship.

Many cases may be found in which a general definition of the term "confidential relation" (or "relationship") may be found. In this case the parties have cited five such cases, none of which remotely approaches the factual situation here involved. Each party, interestingly, for his first case on the issue of existence of a confidential relation, has cited McKeehan v. Wittels, 508 S.W.2d 277 (Mo.App.1974). That case involved a principal-agent relationship which has long been recognized as a fiduciary relationship. Groh v. Shelton, 428 S.W.2d 911, 916(9) (Mo.App.1968). One consequence of that relationship is that the agent may not occupy a position antagonistic to his principal. McKeehan v. Wittels, supra, 508 S.W.2d at 281. However, in this case, appellant did not enter into an agency relationship with respondent, so that, although McKeehan v. Wittels may contain language from which both parties obtain solace, the actual holding of that case has little application here.

Appellant has also cited Patton v. Shelton, 328 Mo. 631, 40 S.W.2d 706 (1931). That case involved the existence of a fiduciary relation for purpose of application of the law pertaining to undue influence upon the...