Ullom v. Griffith

• Decision Date: 11 July 1924
• Docket Number: No. 17867.,17867.
• Parties: ULLOM v. GRIFFITH.
• Court: Missouri Court of Appeals

263 S.W. 876

ULLOM v. GRIFFITH.

No. 17867.

St. Louis Court of Appeals. Missouri.

June 6, 1924.

Rehearing Denied July 11, 1924.

Appeal from St. Louis Circuit Court; Vital W. Garesche, Judge.

"Not to be officially published."

Action by Louis T. Ullnom against George C. Griffith. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Sam B. Jeffries, A. E. Simpson, and Paul F. Plummer, all of St. Louis, for appellant.

Charles A. Lich, of St. Louis, for respondent.

NIPPER, O.

Plaintiff recovered judgment against defendant for $1,150, which she alleged defendant promised to pay her as a consideration for conveying to him certain property that was to be sold by defendant within one year, and out of the proceeds she was to be paid the above-named amount. From this judgment defendant appeals.

Plaintiff in her petition alleges that on the 6th of October, 1917, she was the owner of lot 14 of block 1 in Rosedale Heights, St. Louis county, Mo.; that on said date the defendant held a first deed of trust on this property, and was threatening to foreclose; that defendant informal plaintiff that, if she would transfer the fee to said property to him, he would sell the property and pay her the amount of her equity therein, to wit, $1,150, that in pursuance of the aforesaid proposition made her by the defendant she signed and executed a deed transferring the title to the defendant; that the consideration mentioned was $1, but the true consideration agreed upon by defendant and herself was $1,150; that no part of the same has ever been paid to her by defendant, despite the fact that defendant has sold the aforesaid property and plaintiff has made demand for payment. The answer is a general denial.

Plaintiff testified that she obtained a deed of trust for $1,150 from one W. W. Butts, who was in the real estate business, and on August 18, 1916, she received a quitclaim deed from Rosie Weitzman, a single woman, conveying to her the property in question. On the 6th day of October, 1917, she by quitclaim deed, conveyed the property to the defendant. Prior to signing this last-mentioned deed she had only one conversation with the defendant, and that was for about a half hour, at which time defendant told her that W. W. Butts was his agent; that he wanted her to get her money, and he (the defendant) to get his, and that she would get her money when the property was sold; that Mr. Butts would sell it as soon as he could, and when sold she would get her money; that she made demand for the same, but had not received it.

On cross-examination she testified that in December, 1015, she was the owner of the second deed of trust on this property; that Mr. Butts had sent her word that he had a good investment for her. This information was conveyed to her by her son, Wallace Ullom, who, at the time, was working as stenographer hi Butts' office. Her son was not in the real estate business at the time of the trial. She did not discuss with her son the matter of how she should invest her money. Butts sent her word about the second deed of trust, and guaranteed it by telling her that she could not lose her money, as it was a good piece of property. He did not tell her that second deeds of trust were dangerous things. She knew at that time that a second deed of trust was given on property on which there was a first deed of trust; that she did not know that a first deed of trust took precedence over a second deed of trust. She did not know that a first deed of trust could be foreclosed, and that she would lose her money; that she did not remember getting an item of $39.26, but the indorsement on the back of the note looked like her writing. She testified that she remembered a statement shown her consisting of a statement of receipts and disbursements on the property in question ; that Mr. Butts was defendant's agent, and at the time she bought the second deed of trust she did not know defendant; that, after she had held the second deed of trust for a while, she got title to the property, subject to the first deed of trust, by quitclaim deed from Rosie Weitzman; that Butts had obtained the deed from Miss Weitzman, as he was attending to it, and told plaintiff that the only way for her to get her money was to sign a quitclaim deed to defendant. She got a note for $100 from Butts, but did not know what it was for. The quitclaim deed did not cost her anything. She was then the owner of the property, subject to the defendant's $4,000 deed of trust. She paid $1,000 for the second deed of trust of $1,150. She did not pay Butts any commission. She said Butts told her that she would get that commission, and that this was the reason he wanted her to buy the property, because he wanted her to make a little money; that she did not do anything with reference to paying interest on the first deed of trust, because she did not know anything about it. When asked if she got a quitclaim deed on August 18, 1916, she made no reply, but began to cry.

Counsel for defendant asked that the jury be discharged. The court overruled the motion to discharge, to which defendant's counsel duly excepted. The court then announced that counsel would be given an opportunity to interrogate the jurors to see whether or not they had been unduly influenced by this conduct, whereupon the following occurred:

"By Mr. Simpson: Q. Gentlemen, I will ask you to tell me conscientiously about this. There is only one way that I can determine, and that is by you giving me a frank answer. Now, there is no reason why a man should be ashamed to do that. Do you think now that having seen this woman on the stand here, and having seen her give tears, don't you feel that you would be inclined to be swayed by that and be inclined to favor her side of the case. I will ask this first juryman. Do you feel that way? A. (by juror). I don't feel any reason to put the questions to her where it brings tears. I don't see any reason to put the questions at her where it puts her in tears.

"Q. Do you think I have made a mistake in cross-examining the woman and causing her to cry? A. (by juror). I think it is your fault that she is crying.

"Q. That now you feel inclined to be swayed to her side of the case? A. (by juror). I can't say that.

"Q. You think it is my fault that she cried, and naturally you feel sorry for a woman that — A. I think

"By the Court: The question, Mr. Juror, is this, whether the conduct of the witness on the stand has so prejudiced you against the defendant in the case— A. (by juror). Oh, no.

"Q. —that you can't render a fair and impartial verdict on the merits? A. (by juror). No.

"Q. Of this controversy? A. (by juror). No.

"Q. The question is whether your sympathies have been so aroused by the crying of the witness on the witness stand that you can't render a fair and impartial verdict based solely on the evidence and the instructions of the court? A. 'No.

"Q. You feel that you could try the case then in the same manner now as if the witness had not cried on the stand? A. Absolutely."

One or two other jurors announced that it would have no effect on them. Counsel again asked that the jury be discharged, but the motion was overruled, and defendant's counsel duly excepted.

Plaintiff then testified that it was a matter of only a few days that she owned the property,—from the time she got the quitclaim deed until she conveyed it to defendant; that she knew defendant was about to foreclose, and that Mr. Butts advised her to sign a quitclaim deed and she would get her money; that she did not regard Butts as her agent, although he attended to all her business for her; that defendant told her she would get her money as soon as the property could be sold. She testified that she remembered the paper handed to her marked Defendant's Exhibit 3, but that she did not sign it. When asked if she understood that the consideration named in the deed did not amount to anything, she said: "Well, that is just put in there. You consider you get your money, what is coming to you, the way understand." She testified further that she did not recall signing anything to the effect that Butts was to have a year in which to sell the property; that she did not have anything to do' with selling it; that she did not go to defendant and tell him that six months was too short a time, and that she wanted a year in which to sell it; that when she went to see defendant at his office he told her that he wanted her to have her money, and that she could have it if she signed the deed; that Butts had already told her that this was the only way to get her money, and she went to see defendant to see what he had to say, and that they "just said going to get my money if I signed the deed. That is all there is to it. Everything was done in a view to get my money." Plaintiff's son, Wallace Ullom, as a witness for plaintiff, testified that he lived with his mother, and that at the time of this transaction he was employed as a clerk and stenographer in W. W. Butts' office; that he was present when his mother called at the office with reference to the making of the quitclaim deed to defendant; that Butts told her the only way for her to realize on her second deed of trust, was to give a quitclaim deed to defendant; that the property would then be put in good condition to sell, and she would get her money; that defendant stated that, if plaintiff would give him a quitclaim deed, he would have the property fixed up, and would have Mr. Butts sell it, and he knew it would bring enough to get him his money and what was coming to plaintiff; that defendant did not say exactly how much, but that the property would sell for enough to give her all of her money.

On cross-examination he testified that at the time his mother bought this deed of trust he had explained to her what it was, and told her that a first deed of trust took precedence over a second, and that he told his mother about the danger of second deeds...