De Vore v. Armourdale State Bank

• Decision Date: 08 May 1939
• Docket Number: No. 19273.,19273.
• Citation: 128 S.W.2d 1074
• Court: Missouri Court of Appeals
• Parties: DE VORE v. ARMOURDALE STATE BANK.

128 S.W.2d 1074

DE VORE v. ARMOURDALE STATE BANK.

No. 19273.

Kansas City Court of Appeals. Missouri.

May 8, 1939.

Rehearing Denied May 29, 1939.

Appeal from Circuit Court, Jackson County; Thomas J. Seehorn, Judge.

"Not to be published in State Reports."

Action by Ethel W. De Vore against Armourdale State Bank, a corporation, to recover damages for alleged false representations made to plaintiff by defendant which induced plaintiff to exchange resident property in Kansas City for other real property in such city owned by the defendant. From the judgment, the plaintiff appeals.

Affirmed.

Samuel Feller, of Kansas City, for appellant.

Clarence S. Palmer, of Kansas City, for respondent.

CAMPBELL, Commissioner.

This is an action to recover damages for alleged false representations made to plaintiff by defendant which induced plaintiff to exchange resident property in Kansas City for other real property in said city owned by the defendant.

The answer denied the allegations of the petition and charged that the judgment in a former action was res judicata and a bar of any right of plaintiff to maintain the instant suit.

The trial was to the court without the aid of a jury. The court found that plaintiff proved the allegation of fraud and damage resulting therefrom; that the judgment in the former action was res judicata of the issues in the present case and rendered judgment accordingly. The plaintiff has appealed.

The question here seeking solution is, were the issues in the present action concluded by the judgment in the former suit ? Plaintiff brought the former suit on November 19, 1931, against the present defendant and others to rescind the exchange of properties on the ground of fraud and misrepresentation. The allegations of fraud were substantially the same as the averments of fraud in the present action. The answer of the defendant bank and its receiver denied the allegations of fraud, alleged that after the exchange of properties plaintiff took possession of the property conveyed to her, had ever since retained possession, had failed to keep the house on the premises in good condition, allowed taxes levied thereon to remain unpaid, and allowed a mechanics' lien to be filed against the property; that between the time the property was conveyed to her and the time of the bringing of the suit the property had greatly depreciated in value; that she was guilty of laches and was estopped from claiming right of rescission.

The cause was tried on December 19, 1933, the finding and judgment, the recitals of which will hereinafter be stated, were for the defendants and against plaintiff.

Plaintiff does not claim that the fact that parties other than the bank were parties defendant affects the defense of former adjudication and, for that reason, we will not discuss that question.

The former suit was in equity, sought to rescind the transaction and restore the status quo. The answer tendered the general issue and by way of affirmative defense charged that plaintiff was guilty of laches, had permitted liens to be charged upon the property conveyed to her.

The plaintiff contends the evidence fails to show that the issue of fraud presented in the instant case was determined in the former; that in the former action there were several issues and the court "did not make any findings of fact, and failed to state on which of the issues it passed judgment; whether on the question of laches, or because the plaintiff failed to sustain her allegations of fraud, or whether on both."

The rule established in this state is that one who pleads res judicata has the burden of proving that the "thing" adjudged in the first suit was the "thing" to be adjudged in the second action. North St. Louis Gymnastic Society v. Hagerman, 232 Mo. 693, 135 S.W. 42.

Where the pleadings present two or more issues a...