Vlates v. Catsigianis

• Decision Date: 02 April 1918
• Docket Number: No. 15010.,15010.
• Citation: 202 S.W. 441
• Parties: VLATES et al. v. CATSIGIANIS.
• Court: Missouri Court of Appeals

202 S.W. 441

VLATES et al. v. CATSIGIANIS.

No. 15010.

St. Louis Court of Appeals. Missouri.

April 2, 1918.

Action in justice court by Lampros Vlates and another against John Catsigianis. From a judgment for plaintiffs defendant appealed to the circuit court where, upon a trial de novo before the court and a jury, plaintiffs again prevail, and defendant appeals. Reversed.

Brownrigg, Mason & Altman, of St. Louis, for appellant. Durham & Durham and F. J. Quinn, all of St. Louis, for respondents.

ALLEN, J.

This is an action begun before a justice of the peace to recover the sum of $400 as damages alleged to have been suffered by plaintiffs by reason of certain false and fraudulent representations charged to have been made to them by defendant, whereby they were induced to enter into a certain contract with the latter. From a judgment for plaintiffs before the justice of the peace the defendant prosecuted his appeal to the circuit court, where upon a trial de novo before the court and a jury, there was a verdict and judgment for plaintiffs in the sum of $400, and the case is here on defendant's appeal.

In their petition or statement filed before the justice of the peace plaintiffs aver: That on or about January 5, 1914, defendant, "being desirous of selling them certain property," to wit, certain privileges and concessions for the sale of ice cream and other things at "Priester's Park" in the city of St. Louis, "did, with intent to deceive and defraud plaintiffs, falsely represent to them that he was the true and lawful owner of and had obtained said privileges and concessions," and that they "were purchased from Priester's Park Company for the aggregate sum of $2,200, payable in installments as follows: $750 upon acceptance of the contract and the balance in five monthly installments of $290 each." That in reliance upon defendant's said representations plaintiffs paid defendant the sum of $750, "upon the acceptance of said contract." That in truth, and as defendant well knew, such representations were false, and defendant had not at the time, and never had, title to the said privileges and concessions; and that the said defendant pretended to plaintiffs for the purpose of deceiving them that he had paid to the Priester's Park Company $750 for the privileges and concessions, when in truth defendant had paid therefor the sum of $350. And it is averred that plaintiffs were damaged in the sum of $400, for which they ask judgment. It does not appear that defendant filed an answer.

The parties are all Greeks, having but a limited knowledge of the English language; and there is much confusion in their testimony as it appears in the record.

Plaintiff Vlates testified that he and his coplaintiff were partners; that he did not know the defendant prior to the day upon which the contract in question was entered into, viz.: January 5, 1914; that one Kalegredis said to have been a "partner" of defendant, introduced plaintiff to defendant in the morning of the day mentioned, at Kalegredis' store in the city of St. Louis; that defendant told the witness that he had "a contract from Mr. Priester for the concession of ice cream business in his park," which he proposed to sell to him; that defendant said that he had "bought a contract already" from Priester for certain concessions, paying the sum of $2,200 for the entire season; and that defendant said that he paid $750 to Priester in cash, the remainder to be paid in monthly installments of $290 per month. Vlates further testified that he had had a previous conversation with one Antonopoulos, said to have been connected with defendant in business as a partner or otherwise, and George Catsigianis, defendant's brother, on the evening of January 4, 1914; and that they told him that defendant "would buy the contract" from Priester and then sell it to Vlates "for the same price he had bought it from Priester"; it being understood that Vlates, or he and his associates, would purchase ice cream from a company in which defendant was interested.

It appears that after Vlates had made a visit to Priester's Park the written contract in question was entered into on the afternoon of January 5, 1914, in the presence of a notary public, one Philambolis. This contract recites that the defendant, "having leased the grounds of the Priester's Park Am. Co., and receiving a contract for privileges and concessions hereinafter named, does hereby sublet same in full to parties of the second part" (plaintiffs) for a consideration of $2,200 payable $750 upon the acceptance of the contract and the remainder in five monthly installments. Following a recitation of the various "privileges and concessions" involved appears the following paragraph, viz.:

"If, however, J. Catsigianis does not receive the contract from Priester's Park Am. Co., by February the first, 1914, the parties of the second part shall be returned the first payment of seven hundred and fifty dollars arm this contract shall be considered void."

Vlates testified that he and his coplaintiff paid defendant $750; that plaintiffs operated the "concessions" at the park from April 25, 1914, until some time between July 16th and July 20th of that year; that they "gave up the place" within a day or two after learning that defendant had not paid $750 for that which, in effect, he had sold to plaintiffs for $350. He further testified that at the time of entering into the contract with defendant the latter had a "notice" from Priester, by which it was shown that he meant that defendant had an option from Priester for the privileges or concessions mentioned. And he stated that the contract, including the paragraph quoted in full above, was fully explained to him by the notary.

From further testimony adduced by plaintiffs it appears that Priester's Park Amusement Company entered into a formal written contract with "George Catsigianis and Alex. Anton" on January 8, 1914, granting to the last-named parties the privileges or concessions above mentioned, for the total sum of $1,750, payable $350 immediately, and the remainder in monthly installments of $280 each. Though the contract purports to have been made with George Catsigianis and Alex. Anton (Antonopoulos), Priester testified that it was really made with defendant, John Catsigianis. In any event this was the contract by which defendant secured the...