Siemer v. Schuermann Bldg. & Realty Co.

• Decision Date: 13 July 1964
• Docket Number: 50023,No. 1,Nos. 49962,s. 49962,1
• Citation: 381 S.W.2d 821
• Parties: Henry G. SIEMER et al., Plaintiffs-Respondents, v. SCHUERMANN BUILDING & REALTY CO. et al., Defendants-Appellants. Henry G. SIEMER et al., Plaintiffs-Appellants, v. The METROPOLITAN ST. LOUIS SEWER DISTRICT, Defendant-Respondent, Schuermann Building & Realty Co. et al., Defendants
• Court: Missouri Supreme Court

Page 821

381 S.W.2d 821

Henry G. SIEMER et al., Plaintiffs-Respondents, v. SCHUERMANN BUILDING & REALTY CO. et al., Defendants-Appellants.

Henry G. SIEMER et al., Plaintiffs-Appellants, v. The METROPOLITAN ST. LOUIS SEWER DISTRICT, Defendant-Respondent, Schuermann Building & Realty Co. et al., Defendants.

Nos. 49962, 50023.

Supreme Court of Missouri, Division No. 1.

July 13, 1964.

Motions for Rehearing or to Transfer to Court En Banc Denied

Sept. 14, 1964.

Harry J. Stadin, J. Raymond Dyer, St. Louis, for respondents.

Charles B. Kaiser, Charles Clardy, John J. Shanahan, St. Louis, for defendant, Metropolitan St. Louis Sewer District.

Bertram W. Tremayne, Jr., A. Wimmer Carr, Tremayne, Joaquin, Lay, Batts & Carr, Clayton, for Schuermann Bldg. & Realty Co., defendants-appellants.

WELBORN, Commissioner.

This is a class action by 12 named plaintiffs on behalf of themselves and other persons similarly situated, all purchasers of houses and lots in a subdivision in St. Louis County, to recover on behalf of each plaintiff and member of the class the sum of $200 which the defendant subdivision developers had deposited with the defendant Metropolitan St. Louis Sewer District under an agreement which provided that, in the event of approval of a bond issue for a trunk sewer, the deposit would be returned to the 'persons owning such lots' on the date of the election. The bond issue was approved at an election held on February 7, 1956. The plaintiffs had, prior to that time, entered into purchase contracts for lots, but deeds were not executed for them until after the election. Metropolitan Sewer District returned the deposits to record owners. The deposits here in question were returned to the owner-developers as the record owners on February 7, 1956. The trial court found for the plaintiffs and entered judgment against the owner-developers for an aggregate of $19,400. The court dismissed the petition as to Metropolitan Sewer District at the close of all the evidence. The owner-developers appealed from the judgment in favor of the plaintiffs and the plaintiffs appealed from the judgment dismissing their petition against Metropolitan Sewer District.

The owner-developers in this case are corporations affiliated with the Schuermann Building & Realty Company. The original agreement between Metropolitan Sewer District (herein referred to as MSD) and Land Investment Corporation was dated February 15, 1955 and covered Blocks 1 to 12 in a subdivision known as Northland Hills. Subsequent agreements were entered into between MSD and Land Investment Corporation covering specific lots in Blocks 1-12, inclusive. Each of the agreements was in a form prescribed by MSD. The form of the agreement was the same as that recently considered by this court in Milton Construction & Supply Company v. Metropolitan St. Louis Sewer District, Mo.Sup., 352 S.W.2d 685. The purpose of the agreement was to provide financing of construction of either trunk sewers or sewage disposal facilities for the subdivision which the owner proposed to develop. Each of the agreements required the owner-developer to construct sanitary sewers within the subdivision which were to be, and eventually were in this case, transferred to MSD.

Paragraph 7 of the agreement provided: 'Before any construction is started on any lot within the parcel or subdivision, the Contractor shall deposit with the District the sum of Two-Hundred dollars ($200.00), to be held by the District for each lot for which a sanitary sewer connection has been requested. The District shall deposit and hold such sums, together with such other sums similarly deposited, in a separate account in a bank or trust company, and shall disburse therefrom, on one of the following conditions: * * *.' Five conditions are thereafter specified. A. If a trunk sewer is constructed at a cost not in excess of the total amount of the deposits, such deposits are to be used in paying the subdivision's costs of planning and constructing the trunk sewer and any balance remaining after such full payment is to be refunded retably to the persons owning the lots on the acceptance date of the completion of the trunk sewer. B. If the deposit is not sufficient to cover the cost of the trunk sewer and the difference is not enough to warrant issuance of bonds, the District may build the trunk sewer and pay for it by special benefit assessments. Special benefit assessment bills issued against each lot are to be credited with the amount deposited for the lot and the lot owner shall be liable for the amount in excess of the deposit for the lot. Condition C, which is the condition here involved, is as follows: 'If the District finds that it is impracticable to finance the construction of a trunk sanitary sewer or sewers in the manner set out in either A or B, above, and the subdistrict in which the said subdivision is located shall vote for the construction of a trunk sanitary sewer to be financed by any form of obligation of the subdistrict, the amounts held on deposit for the benefit of each lot shall be refunded to the persons owning such lots on the date that the indebtedness is authorized by such vote.' Conditions D and E are not involved in this case and shed no light on the construction of the applicable portion of the agreement.

Pursuant to the requirement of the agreement, either Land Investment Corporation or other Schuermann affiliated corporations to which the lots were subsequently transferred made deposits of $200 each for a total of 284 lots in Northland Hills. Sales of lots within the subdivision began shortly after the February, 1955 agreement between MSD and Land Investment Corporation. The Schuermann Building & Realty Company acted as general contractor and sales agent for the affiliated corporations in the construction and sale of residences in the subdivision. The system of selling involved first a choice by the purchaser of the lot which he elected to buy and the selection of the type of house which was to be constructed upon it. At that time a deposit was made with the sales agent, Schuermann Building & Realty Company and a receipt issued therefor which by its terms granted the purchaser a 3-day option on the purchase of a designated lot and the residence to be constructed thereon for a specified sale price. Thereafter, the purchaser went to the office of Schuermann Building & Realty Company for execution of an 'Earnest Money Receipt and Sale Contract' between the purchaser and the owner corporation, through Schuermann Building & Realty Company. This document acknowledged receipt of the earnest money deposited and described the property involved and thereafter recited 'which property is this day sold' to the purchaser. The contract provided for the payment of the balance of the purchase price and for closing of the transaction 'on completion of property.' If not closed because of default of purchaser, $200 of the earnest money was to be forfeited to the seller and the contract became void. Construction of the house began after the contract had been signed and upon its completion, the transaction was closed and a deed delivered to the purchaser.

On February 7, 1956, an election was held at which voters in the Maline Creek Sewer Subdistrict approved a bond issue for the trunk sewers contemplated by the agreement between MSD and Land Investment Corporation. Prior to the election, sales of lots in Northland Hills had been made in accordance with the above described method. Before February 7, 1956, 89 houses and lots had been transferred by warranty deed to the purchasers. On February 13, 1956, trustees of MSD met and discussed the Maline Creek election. The Chairman of the Board of Trustees, Mr. John Bogdanor, who was also general manager of what was described as the 'Schuermann complex,' presided at the February 13th meeting of the Board of Trustees. At that meeting, the trustees decided that no further escrow fees should be collected for lots within the Maline Creek watershed. They further ordered that all escrow fees previously collected be refunded in accordance with the respective escrow agreements. The number of such agreements does not appear. Apparently there were several such agreements in addition to that between MSD and Land Investment Corporation. The minutes of the meeting show that there was a discussion of the method for obtaining the names of owners of lots in the subdivisions who would be entitled to refund of deposits. The minutes recite: 'Suggestion was made that we contact subdividers for the names and address of owners in their subdivision as of midnight, February 7, 1956, so that we can then have the Title Companies confirm the owners of such properties on that date.'

On February 2o, 1956, Mr. John P. McCammon, general counsel for MSD, directed a letter to Land Investment Corporation in which he stated: 'Under our agreements with you we are required to make refunds to the persons who were the record owners on February 7, 1956 of each of the parcels of land listed above. It will greatly facilitate our work if you will be kind enough to furnish us the names of your immediate grantees, and the dates on which you conveyed, after which we will be able to have the titles run.'

Lists were prepared by Schuermann and the affiliated owner corporations showing the names of persons to whom lots within the subdivision had been transferred prior to February 7, 1956, as shown by the Schuermann records. No reference was made to the fact that contracts of sale had been entered into as of that date for the sale of lots on which the deeds had not been delivered. For each of the 89 lots which had been transferred by warranty deed prior to February 7, a $200 refund was made to the record owner. For each of the remaining 195 lots, a $200 refund was made to Schuermann or the affiliated owner corporations. Included among these 195 were 97 lots which were under sales contract, but which were not...