Travagliante v. J. W. Wood Realty Co.

Decision Date11 March 1968
Docket NumberNo. 52743,No. 1,52743,1
Citation425 S.W.2d 208
PartiesAntonio TRAVAGLIANTE and Laura Travagliante, Plaintiffs-Respondents, v. J. W. WOOD REALTY COMPANY, a corporation, Defendant-Appellant, and Northwest Land Company, a corporation, Defendant
CourtMissouri Supreme Court

Wyne & Delworth, by Edward J. Delworth, Clayton, for respondents Antonio Travagliante and Laura Travagliante.

Henry Ebenhoh and Walter S. Berkman, St. Louis, for appellant, J. W. Wood Realty Co.

HOUSER, Commissioner.

This is an action in three counts by Antonio and Laura Travagliante against J. W. Wood Realty Company, a corporation, and Northwest Land Company, a corporation. Northwest Land Company is sole defendant in Count I for the recovery of $2,065, the balance plaintiffs claim is due on the purchase price of certain land sold by plaintiffs to Northwest Land Company. Wood Realty is sole defendant in Count II to recover back a real estate commission of $1,976.10 plaintiffs paid to the realty company as plaintiffs' agent in the sale of the land, and to recover $20,000 damages for failure of the realty company to disclose to plaintiffs, prior to the time the sale was closed, the financial interest which the officers and stockholders of the realty company had in the purchaser, Northwest Land Company. Both Wood Realty and Northwest Land Company are defendants in Count III, in which the realty company is charged with inducing plaintiffs to convey the land with intent to deceive them as to the true purchaser of the land and as to the true value of the land (alleged to be $2,750 an acre--sold for $1,750 an acre), and Northwest Land Company is charged with joining with the realty company, with knowledge of the latter's intent to deceive plaintiffs as to the true purchaser and with knowledge of the true value of the land, in carrying out the deception to its own profit. Plaintiffs pray for judgment in Count III against the realty company for $1,976.10 (the amount of the commission); against Northwest Land Company for $2,065 (the balance of the purchase price), and against both for $20,000 actual and $50,000 punitive damages.

The issues on all three counts were submitted to a jury. On Count I the jury found for plaintiffs and against Northwest Land Company in the sum of $2,089.50 damages. On Count II the jury found for Wood Realty and against plaintiffs. On Count III the jury found for plaintiffs and against both defendants in the sum of $10,207.14 actual damages, and punitive damages as follows: $10,500 against Wood Realty and $10,500 against Northwest Land Company.

Northwest Land Company filed a motion to set aside the verdicts and judgments against it on Counts I and III and to have judgment entered in accordance with its motion for a directed verdict or in the alternative to grant it a new trial. The court overruled Northwest Land Company's motion to set aside and for judgment and sustained its alternative motion for a new trial on Counts I and III.

Plaintiffs filed a motion to set aside the verdict against them on Count II and for judgment in accordance with their motion for a directed verdict on Count II or in the alternative to grant them a new trial. The court overruled plaintiffs' motion to set aside and for judgment and sustained plaintiffs' alternative motion for a new trial.

Wood Realty filed a motion to set aside the verdict and judgment entered against it on Count III and for judgment in accordance with its motion for a directed verdict or in the alternative to grant it a new trial. The court overruled Wood Realty's motion to set aside and for judgment, and sustained its alternative motion for a new trial.

Wood Realty filed a notice of appeal from the order granting plaintiffs a new trial on Count II. No appeal was taken by any party with respect to the action of the court on Counts I and III, and no other or further order was made in the case. After the appeal was lodged here plaintiffs filed a motion to dismiss the appeal as premature on the ground that the appeal 'does not dispose of the issues as to all parties and as to all issues against all parties, as required by Section 512.020 of the Revised Statutes of Missouri of 1959.' The motion to dismiss the appeal was overruled prior to the hearing of this appeal. In their brief plaintiffs have renewed their motion to dismiss and we will reconsider it. Plaintiffs contend that there is no final judgment within the meaning of that term as used in § 512.020, V. A.M.S. 1 because the judgment does not dispose of all of the parties and all of the issues and leaves matters for future determination. It is true that when all three new trial motions were sustained the case was pending anew on all counts and was in the same condition as before trial. Plaintiffs' impression, however, that Wood Realty is attempting to appeal from a final judgment, under the statutory right to appeal indicated, 1 is a misapprehension. Wood Realty is not exercising its right to appeal from a final judgment but is properly taking an appeal under that clause of § 512.020, RSMo 1959, V.A.M.S. which authorizes an appeal 'from any order granting a new trial.' The general rule that in order for a judgment to be final and appealable it must dispose of all parties and issues in the case and leave nothing for future determination is not applicable. The portion of § 512.020 last quoted governs. Fulton v. Bailey, Mo.Sup., 413 S.W.2d 514(1). Wood Realty had a right to appeal the order granting plaintiffs a new trial notwithstanding there were other counts remaining undisposed of involving it and another defendant. Wicker v. Knox Glass Associates, 362 Mo. 614, 242 S.W.2d 566(2).

Marty Seithel, employee of Wood Realty, approached Antonio Travagliante and asked him if he wanted to sell a 20-acre tract of land in St. Louis County owned by Antonio and wife. Antonio said he would sell it for $3,000 an acre. Seithel said that he could not give him $3,000 an acre. Antonio then 'put it up' at $1,750 an acre, and on the next day, October 16, 1959, plaintiffs and Northwest Land Company signed a printed form of sale contract, the blank spaces of which were filled in with typewriting, in which plaintiffs agreed to sell and Northwest Land Company agreed to buy a certain described tract of land containing '20 acres, (more or less)' for $35,000, '(s)ales price to be adjusted on closing, based on $1750.00 per acre, as shown on accurate survey.' Wood Realty was recognized and signed the contract as the agent of the sellers, who agreed to pay a commission of 6% of the sales price. The sale was closed on November 15, 1959. In the closing statement sellers received credit for $32,935 for the land. The survey showed that the tract consisted of 20.014 acres including roads and easements; 18.584 acres excluding road and easements.

Seithel testified that when he presented the sales contract to plaintiffs he explained to them that they were to take back a deed of trust for $26,200; that plaintiffs asked Seithel whether the purchaser, Northwest Land Company, was 'sound so far as taking back this financing,' and that he explained to plaintiffs that they had 'nothing to worry about, it was a reliable company,' mentioning Sterling Kennedy, Ed Ryder and George Wood as officers. When asked 'Did you tell them who George Wood was?' Seithel answered, 'J. W. Wood Company, my boss.' Then plaintiffs signed the contract.

Both Antonio and his wife knew that Northwest Land Company was buying the land, but Antonio testified that no one told him that any officer of Wood Realty was also an officer of Northwest Land Company, and that he did not know there was any connection between Northwest Land Company and Wood Realty and that some of the officers of Wood Realty were officers in Northwest Land Company. He said there was no discussion of stock holdings in the two companies. Antonio's wife testified that prior to closing date she did not know anyone connected with Northwest Land Company; that before signing the sale contract no one told her that any stockholder or officer of Wood Realty was a stockholder or officer in Northwest Land Company. Asked whether at the time of signing the contract it made any difference to her who the officers of Northwest Land Company were so long as they paid $1,750 an acre, she at first answered 'I just don't know--,' and then answered 'No, it would make no difference, because--we did not get what we asked for.' Later, asked 'But if you had got $1750.00 per acre it would not make any difference who the officers were of the Northwest Land Company, isn't that correct?,' she answered 'That is the same.'

Wood Realty's first point on this appeal is that the court erred in sustaining plaintiffs' motion for a new trial upon the third ground of the motion, namely, that the court erred in giving Instruction No. 5, offered by Wood Realty.

Count II of plaintiffs' first amended petition alleged that 'officers and stockholders of defendant, J. W. Wood Realty Company, had a financial interest in defendant, Northwest Land Company, on and prior to the aforesaid closing date,' and that 'the aforesaid financial interest in defe...

To continue reading

Request your trial
12 cases
  • Byrd v. Brown
    • United States
    • Missouri Court of Appeals
    • February 27, 1981
    ...is not here applicable in the face of § 512.020." Fulton v. Bailey, 413 S.W.2d 514, 515 (Mo.1967). Also see Travagliante v. J. W. Wood Realty Company, 425 S.W.2d 208 (Mo.1968). In general the orders and judgments specifically designated by § 512.020 to be appealable pertain to a determinati......
  • State ex rel. Hartman v. Casteel
    • United States
    • Missouri Court of Appeals
    • May 18, 1984
    ...to the fact that the orders granting a new trial upon two of the eight counts were appealable orders. Travagliante v. J.W. Wood Realty Company, 425 S.W.2d 208 (Mo.1968); Ely v. Parsons, 399 S.W.2d 613 (Mo.App.1966). Compare Pizzo v. Pizzo, 365 Mo. 1224, 295 S.W.2d 377 (Mo. banc 1956); Papin......
  • Hiller v. Real Estate Commission, 79
    • United States
    • Colorado Supreme Court
    • May 4, 1981
    ...Inc., 36 Colo.App. 32, 536 P.2d 1146 (1975); Koller v. Belote, 12 Wash.App. 194, 528 P.2d 1000 (1974); Travagilante v. J. W. Wood Realty Co., 425 S.W.2d 208 (Mo.1968); Utlaut v. Glick Real Estate, 246 S.W.2d 760 (Mo.1952); Rattray v. Scudder, 28 Cal.2d 214, 169 P.2d 371 (1945). We agree tha......
  • Mueller v. Ruddy, 42039
    • United States
    • Missouri Court of Appeals
    • April 14, 1981
    ...the relevant statutes. Mueller was Transamerica's agent and, thus, had a fiduciary duty to Transamerica. See Travagliante v. J. W. Wood Realty Co., 425 S.W.2d 208, 212 (Mo.1968). Mueller breached this duty by failing to disclose he was buying the property himself through a straw party. See ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT