Vodicka v. Sette

• Decision Date: 16 July 1920
• Docket Number: No. 21189.,21189.
• Citation: 223 S.W. 578
• Parties: VODICKA et al. v. SETTE et al.
• Court: Missouri Supreme Court

223 S.W. 578

VODICKA et al. v. SETTE et al.

No. 21189.

Supreme Court of Missouri, Division No. 2.

July 16, 1920.

Appeal from Circuit Court, Maries County ; J. G. Slate, Judge.

Action by Venzel Vodicka and another against Henry G. Sette and another. From a judgment for plaintiffs, defendants appeal. Modified and affirmed.

This suit was brought for the purpose of setting aside a deed which plaintiffs made conveying to defendants 320 acres of land in Maries county. The conveyance was made August 24, 1917, in exchange for 204 acres of land in Pike county, Mo., conveyed at the same time by defendants to plaintiffs. In the exchange of the farms, the defendants' 204 acres was valued at $15,000, and plaintiffs' 320 acres at $10,000; the plaintiffs paying the difference by executing certain mortgages on the 204 acres of land more particularly mentioned below.

The petition alleges that one Fred D. Wilkins, the agent who conducted the negotiations for the defendants and concluded the trade, made certain false representations to the effect that the 204-acre farm was well located, in a high state of cultivation ; that the soil was rich, and very productive of all kinds of grain, and the land was as valuable as any land in its locality; that the defendants had purchased it at $80 an acre, and that they had refused an offer of $14,000 for it ; that the plaintiffs were Bohemians, spoke the Bohemian language, and the plaintiff Barbara Vodicka was unable to understand any other language; that no Bohemians lived in the vicinity of their farm in Maries county, and plaintiffs desired to live in a locality where there was a settlement of Bohemians, with whom they might associate; and that the said Wilkins falsely represented to the plaintiffs that there was a large settlement of Bohemians, who spoke the Bohemian language, near the farm in Pike County. It is then alleged that in fact the 204-acre tract was rough, hilly, rocky, and full of gullies, the soil thin and worn, improvements dilapidated and out of repair, and that the defendants had neither paid nor been offered the prices they represented; that plaintiffs relied upon the said representations, and were induced thereby to execute a deed to the said land in Marks county. The petition prays the court to cancel the said warranty deed and cancel certain notes, described later, which the plaintiffs had executed in favor of defendants in connection with the trade, and to allow them to recover certain moneys paid.

At the time of the trade the Vodickas had lived on the `farm in Maries county about 9 years, having moved there from Iowa. Desiring to dispose of their farm, they put it in the hands of J. F. Burge, an agent at St. James. Burge got into correspondence with Fred D. Wilkins, at Louisiana, in Pike county, who had the Sette farm on his list for sale or trade. The first letters between the two related to another farm in Pike county, which Vodicka sent his son, Anton Vodicka, to Pike county to inspect. Arriving there, Anton visited Wilkins, saw the farm, and declined to consider it. Wilkins then suggested that he look at the Sette farm of 204 acres, valued at $16,000, which Anton did. He went over the land to some extent ; the evidence is not clear as to just how much of an inspection he made. He claims he did not examine all of it. He went back home, and wroth' a letter to Wilkins, dated June 8, 1917, in which he stated that he had talked the matter over with his folks and said:

"We decided not to consider a trade on that 204-acre farm; it would put us considerable in debt; that we would have to build right away, and that also takes money; and anyway we do not like those bluffs like there is on that farm."

Other letters ensued between Anton and Wilkins, relating chiefly to other farms which Wilkins had to trade. In one letter of June 19th, Wilkins mentioned the 204-acre farm, and suggested that he might induce the owner to put it in at a better price than he had mentioned at first. On July 6, 1917, Wilkins and Burge—it appears without any previous notice of their coming—arrived at the Vodicka farm in Manes county. On that day a written agreement was signed by Wilkins, for Sette, and by the plaintiffs, whereby the plaintiffs agreed to exchange their 320-acre farm, at a value of $10,000, for Sette's Pike county farm of 204 acres, valued at $15,000. The contract contained a stipulation that it was subject to the approval of Sette, and Sette afterwards approved it. The difference in the values of the two farms was provided " for in the contract in these words:

"Except a mortgage for $5,000 on all of said land, which mortgage said second parties [Vodickas] hereby agree to execute and deliver to first party or any one he may designate, at and on the delivery of the deed conveying said real estate to said second parties. Interest at rate of not greater than 6 per cent."

It was the 6th day of July, the date on which this contract was executed, plaintiffs claim, that the fraudulent representations inducing the trade were made. The evidence relating to that will be noticed below. The deeds finally were exchanged August 24th. Prior to that, however, a supplemental contract had been made between Sette and the plaintiffs in relation to the rent and crops.

On July 31st the defendants made a contract with Wilkins, whereby they employed him to negotiate a loan of $5,000 on the 204-acre tract in Pike county. Wilkins endeavored to procure a loan of $5,000, but was able to procure a loan of only $4,000, which he obtained from a trust company. In connection with the loan a second mortgage, payable to the trust company, was given by plaintiffs to secure a commission of $400. There was a mortgage of $1,400 on the plaintiffs' Manes county farm, and that had to be offset by security to defendants, so that when the trade was concluded the difference in values was arranged by Wilkins in this way: A third mortgage was taken on the land to secure $1,000, payable to Sette; also a note for $1,400 to offset the mortgage on plaintiffs' farm, and $300 to pay a commission which Wilkins clamed he earned in procuring loans for the plaintiffs. The plaintiffs thus held the Pike county farm subject to three mortgages, aggregating $7,100, while the defendants held the Maries county farm subject to the mortgage of $1,400.

The conversation which took place on the 6th of July, the day the contract of sale was signed, was testified to by Venzel Vodicka himself, by his son Anton, who was 30 years of age, and another son, Stanley Vodicka, who was 23 years of age. Wilkins and Burge went to the oat fields, where these men were at work, and the conversation took place there. The three Vodickas were pretty consistent in their testimony of what occurred. Wilkins told them that the Pike county farm would produce from 30 to 40 bushels of wheat per acre, oats from 30 to 50 bushels per acre, and corn from 40 to 60 bushels per acre ; that the soil was as good as any around it ; that the owner had refused $14,000 for the farm. The value was put in different ways: It was worth $16,000, worth as much as any land around it, and land around it was selling for from $80 an acre up.

Vodicka hesitated to go so much in debt on account of the difference in the values of the two farms. Wilkins told him he could sell 40 acres of land right away at $75 an acre, and thereby reduce his debt. Further on in the conversation Wilkins said the land" was as good as any land around it which was selling for $100 an acre. He embellished his statements with comparisons ; he said one acre of the Pike county land would produce as much as three acres of the land in Manes county ; that blue grass on the Pike county farm would grow as high as oats would grow in Manes county. Some statements were made about the character and the state of repair of improvements on the ground, which need not be considered here.

Wilkins and Burge testified for the defendants as to the conversation which took place, denying generally any statements testified to by the three Vodickas. Burge was somewhat cautious, saying that "he did not recall" any such statements as were testified to by the plaintiff and his sons. The plaintiff introduced a number of witnesses to swear that Wilkins' reputation for truth and veracity was bad. He was pretty thoroughly impeached, without any countervailing evidence on that point.

The land in fact was found to be about half in cultivation ; the rest was hills. They were very steep. There were rocks and gullies across the cultivated ground, which were very deep in places. The land was very thin. The year the trade was made the plaintiffs estimated that the corn produced on it did not yield over 10 bushels to the acre. The soil was a red clay soil. Part of it, where they cultivated it, had a lot of gravel on it. It was further shown that the Sette farm was greatly inferior to the land around it, and that land in that vicinity was in fact salable at from $80 an acre upwards, while the Sette farm would not sell for any such price. Defendants never had been offered, nor had they refused, $14,000 for it. A number of witnesses testified that they knew the value of the land in...