Riley v. White

Decision Date20 June 1950
Docket NumberNo. 27869,27869
Citation231 S.W.2d 291
PartiesRILEY v. WHITE et al.
CourtMissouri Court of Appeals

D. Calhoun Jones, St. Louis, Philip S. Alexander, St. Louis, for appellants.

Raymond F. McNally, Jr., St. Louis, for respondent.

McCULLEN, Judge.

This is an action in two counts, both of which arise out of the sale of an apartment house by defendants to plaintiff. The first count of plaintiff's petition seeks damages arising out of the breach of part of a contract and the second count charges that defendants fraudulently concealed a latent defact in the building sold and prays for both actual and punitive damages. Defendants failed to file an answer after all of them had been duly served by April 16, 1949, and a default and inquiry was granted as to all defendants on May 18, 1949. On June 1, 1949, the case was called for hearing and defendants did not appear, nor did any one appear for them. After a hearing by the court there was a finding and judgment for plaintiff for actual damages on both counts, totaling $516.15, and for punitive damages on the second count in the sum of $2,000.00.

On August 25, 1949, defendants filed in this court a motion for a special order allowing an appeal from the judgment. This motion recited that defendants had employed a lawyer to represent them as soon as they had been served with summons in the case but that the lawyer was ill and unable to attend to his practice from the time he was so employed until the first of the following August, and that by reason of this he failed to plead or defend them in this case. After considering plaintiff's objections to allowing the appeal, the appeal was allowed, and the main points raised here by defendants as appellants have to do with the sufficiency of plaintiff's petition to state a cause of action.

The petition alleged:

'Count I

'1. That on or about March 24, 1948, he entered into a contract in writing with the defendants whereby they agreed to sell and he agreed to purchase for the consideration of Twenty-one Thousand Dollars ($21,000.00) the real estate commonly known as 5133 Waterman Avenue, in the City of St. Louis, State of Missouri; that said real estate was improved with a three family apartment building and a four car brick garage.

'2. That the plaintiff did all things and performed all acts required of him in said contract; that included in said contract and the terms of said sale were certain fixtures, namely:

'(a) Four French folding doors and hinges,

'(b) One single door,

'(c) One dining room electric chandelier; and that, notwithstanding their obligations in said contract and said terms of sale, the defendants failed and refused to deliver possession of said premises to plaintiff complete with the aforesaid fixtures.

'3. That the fair and reasonable cost of replacing the said four French folding doors and one single door is:

                "(a) four French folding doors    $79.80
                "(b) one single door               20.00
                "(c) door hinges for said doors     2.40
                                                 -------
                          Total cost             $102.20
                

'4. That the plaintiff has been obliged to purchase the following new fixture and to pay the following charge for installation thereof as replacement for a similar fixture removed by the defendants and not delivered to plaintiff as aforesaid, namely:

                "Dining room chandelier          $14.95
                "Hanging dining room chandelier    5.00
                                                 ------
                                                 $19.95
                

'Wherefore, the plaintiff claims judgment against the defendants in the amount of One Hundred Twenty-two and 15/100 Dollars ($122.15).

'Count II

'1. Plaintiff adopts and incorporates herein Paragraph 1 of Count I as Paragraph 1 of Count II.

'2. That in said apartment building there was a stairway running from the first floor to the third floor, inclusively; that at the time of the making of said written contract, and on April 12, 1948, the date of the delivery of the general warranty deed from the defendants Robert Lee White, Betty Chappell White, George C. White, and Marie A. White, to the plaintiff, said stairway was in a dangerous and unsafe condition, all of which facts were known to the defendants and were unknown to the plaintiff and could not have been learned by the plaintiff from inspection of said premises; that notwithstanding, the premises and their duty to inform the plaintiff of all latent defects in said building of which they had superior knowledge and of which the plaintiff could not know, the defendants not only deliberately and fraudulently failed to advise the plaintiff of the dangerous and unsafe condition of said stairway, but knowingly and falsely represented to him that the buildings were free to their knowledge from latent defects.

'3. That the plaintiff, acting in reliance upon the silence and false representations of defendants, did consummate said purchase as aforesaid; that subsequently thereto and upon the order of the Building Commissioner of the City of St. Louis, plaintiff was obliged to and did repair the stairway in said building; that the cost of said stairway to the plaintiff was the sum of Three Hundred Ninety-four Dollars ($394.00), which was the fair and reasonable cost therefor.

'Wherefore, the plaintiff claims judgment against defendants in the amount of Three Hundred Ninety-four Dollars ($394.00) with interest thereon from and after July 20, 1948, the date of payment for the repairs to the stairway by the plaintiff as aforesaid, as actual damages; and by reason of the deliberate fraud and deceit practiced upon plaintiff in the premises by the defendants, plaintiff claims judgment against defendants in the further sum of Two Thousand Dollars ($2,000.00) as punitive damages.'

For convenience appellants will be referred to herein as defendants and respondent will be referred to as plaintiff. Defendants contend that the trial court erred in finding for plaintiff on each of the two counts of his petition and argue that each of said counts failed to state a cause of action and claim upon which relief could be granted.

Defendants assert that the petition of plaintiff pleaded mere conclusions. They contend that plaintiff's petition failed to follow elementary pleading technique in that it failed to set out the contract or to attach it to the petition and incorporate it therein by reference and that having failed to do those things plaintiff further failed to state the terms of the contract.

We are unable to agree with defendants on this point. The petition of plaintiff alleged in Count I, 'That on or about March 24, 1948, he entered into a contract in writing with the defendants whereby they agreed to sell and he agreed to purchase for the consideration of Twenty-one Thousand Dollars ($21,000.00) the real estate commonly known as 5133 Waterman Avenue, in the City of St. Louis, State of Missouri; that said real estate was improved with a three family apartment building and a four car brick garage. 2. That the plaintiff did all things and performed all acts required of him in said contract; that included in said contract and the terms of said sale were certain fixtures, * * *.' At this point in his petition plaintiff described certain folding doors and hinges and a dining room electric chandelier and then alleged that notwithstanding the obligations of defendants in said contract and said terms of sale defendants failed and refused to deliver possession of the premises to plaintiff complete with said fixtures.

Plaintiff's petition then alleged the cost of replacing said doors and hinges and also alleged that he was obliged to purchase a new dining room chandelier and further alleged the cost thereof and the cost of installing it, after which he prayed judgment against defendant in the total sum of $122.15, representing the amount of expense he had been put to by the failure of defendants to comply with the terms of the contract.

We are of the opinion that Count I of the petition stated a claim upon which relief could be granted. It appears to us to state ultimate facts and not mere conclusions. The facts stated, if found to be true, entitled plaintiff to a judgment for the amount alleged. Plaintiff was not required to attach to his petition a copy of the written contract sued on nor to set it forth in haec verba, because he pleaded the legal effect thereof. See Section 55 of the New Civil Code, infra. The contract was introduced in evidence as plaintiff's exhibit 1. A comparison of the contract with plaintiff's petition shows that plaintiff has correctly and properly stated in Count I of his petition the legal effect of the contract.

Section 55 of the New Civil Code, Laws Mo. 1943, page 373, Mo.R.S.A. Sec. 847.55, provides: 'Whenever a claim, defense, or counterclaim is founded upon a written instrument, the same may be pleaded according to legal effect, or may be recited at length in the pleading, or a copy may be attached to the pleading as an exhibit.' (Emphasis ours.)

It will be noted that the statute; Section 55, supra, provides that a pleader may do one of three things in a suit where a claim is founded upon a written instrument, namely, plead the written instrument according to its legal effect, or recite it at length in the pleading, or attach a copy to the pleading as an exhibit. Having pleaded the written instrument according to its legal effect, it was not necessary for plaintiff to do more. Even under Section 967, R.S.Mo.1939 of the former Code of Civil Procedure, which has been repealed, although it provided that when a petition was founded upon an instrument of writing charged to have been executed by the other party, the same or a copy thereof should be filed with the petition, it was nevertheless held that if a pleader failed to file the instrument called for, such failure did not go to the substance of the...

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11 cases
  • Barney v. Suggs
    • United States
    • Missouri Supreme Court
    • April 2, 1985
    ...Blackmore v. Blackmore, 639 S.W.2d 268 (Mo.App.1982), heavily relied on in Vonsmith, or in the two Vonsmith opinions. In Riley v. White, 231 S.W.2d 291 (Mo.App.1950), the St. Louis Court of Appeals reversed the damage portion of a default judgment, in which there was no indication that a mo......
  • Shepherd v. Woodson
    • United States
    • Missouri Supreme Court
    • September 14, 1959
    ...113, 114[2, 3]; Rardon v. Davis, Mo.App., 52 S.W.2d 193, 196[6-8]; Wick v. Keshner, 8 Cir., 244 F.2d 146, 152, 153; Riley v. White, Mo.App., 231 S.W.2d 291, 297[7-10]; Wood v. Robertson, Mo., 245 S.W.2d 80, 84, 85; Paine v. Albany Ins. Co., Mo.App., 299 S.W.2d 897, 902, 903; Bragg v. Kirksv......
  • Sarnicandro v. Lake Developers, Inc., A--191
    • United States
    • New Jersey Superior Court — Appellate Division
    • May 11, 1959
    ...8 A.L.R.2d, above, at page 227; and see Palmore v. Morris, Tasker & Co., 182 Pa. 82, 90, 37 A. 995 (Sup.Ct.1897). Contra, Riley v. White, 231 S.W.2d 291 (Mo.App.1950); Swinton v. Whitinsville Savings Bank, 311 Mass. 677, 42 N.E.2d 808, 141 A.L.R. 965 (Sup.Jud.Ct.1942); Smith v. Tucker, abov......
  • Mobley v. Copeland
    • United States
    • Missouri Court of Appeals
    • April 20, 1992
    ...defects cannot be made the subject of misrepresentation where, as here, the buyer has inspected the property involved." Riley v. White, 231 S.W.2d 291, 298 (Mo.App.1950) (citing Morse v. Rathburn, 49 Mo. 91, 93 (1871)). When a party makes an independent investigation he is presumed to have ......
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1 books & journal articles
  • Section 6 Sufficiency of Evidence
    • United States
    • The Missouri Bar Damages Deskbook Chapter 24 Special Problems
    • Invalid date
    ...was by default does not excuse the legal requirement that there be sufficient evidence to sustain the final damage award. Riley v. White, 231 S.W.2d 291, 298 (Mo. App. E.D. 1950). Indeed, “it is error for a default judgment to award damages without ‘probative evidence’ to sustain the award.......

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