Walker v. Hassler

• Decision Date: 04 April 1922
• Docket Number: No. 16730.,16730.
• Citation: 240 S.W. 257
• Parties: WALKER v. HASSLER
• Court: Missouri Court of Appeals

240 S.W. 257

WALKER v. HASSLER

No. 16730.

St. Louis Court of Appeals. Missouri.

April 4, 1922.

Appeal from Circuit Court, Montgomery County; Ernest S. Gantt, Judge.

"Not to be officially published."

Action by G. B. Walker against James F. Hassler. Judgment for defendant, and plaintiff appeals. Affirmed.

Emil P. Rosenberger, of Montgomery City, for appellant.

W. C. Hughes, of Montgomery City, for respondent.

BRUERE, C.

This action is one at common law for trespass, alleged to have been committed by the defendant in entering upon the real estate of plaintiff, and removing therefrom a certain frame building. The count of the petition upon which the case was tried is as follows, to wit:

"Plaintiff, for his cause of action, says, that on the ___ day of ___, 1913, he was the owner and in possession of the following described real estate, situated in the county of Montgomery, state of Missouri, to wit: Lot No. 7 and part of lot No. 6, in block 33, in the original town of Montgomery City, now the city of Montgomery.

"That on said day defendant wrongfully and without leave entered upon said land, and then and there did take off of and remove from said real estate a certain frame residence and dwelling.

"Plaintiff says that by the acts and doings of the defendant he has been damaged in the sum of $250, for which he prays judgment with his costs herein expended."

The answer contains a general denial, and in addition pleads:

"Further answering defendant says that during the year 1913, and particularly during the month of July, 1913, the plaintiff was the owner of the real estate described in the petition, being lot No. 7, and part of lot No. 6, in block 33, in the original town of Montgomery City, now the city of Montgomery; that there was located on said lots an old, dilapidated, and untenanted frame building, unfit for occupancy; that L. A. Thompson, now deceased, was the duly authorized and acting agent of plaintiff, in full charge of said real estate and dilapidated building, for the purpose of selling the real estate or the dilapidated building; that during the month of July, 1913, defendant purchased from said L. A. Thompson, agent as aforesaid, the dilapidated building on said real estate for the price and sum of $50, which was more than the same was reasonably worth, and defendant paid to said agent the full purchase price thereof; and the said agent paid such purchase price to the plaintiff herein, and plaintiff has since retained the same.

"Further answering, defendant nays that shortly after his said purchase of plaintiff's dilapidated building the plaintiff was informed thereof, and has ever since known thereof, and never questioned defendant's right to purchase or L. A. Thompson's right as agent to sell said building until after the death of said agent, and until after plaintiff had acquiesced in and ratified such sale for almost four years, and defendant says that plaintiff by his said conduct has fully ratified such sale, and is now estopped from denying that his said agent was authorized to sell said building, or that defendant purchased and paid for the same."

Plaintiff in the reply admitted that he was the owner of the real estate described in the petition, and that there was located thereon an old and untenanted frame building; admitted that L. A. Thompson sold to defendant the said building for the sum of $50, and that said sum was paid Thompson. The reply denied that D. A. Thompson was the agent for the plaintiff for the purpose of selling the real estate or the building located thereon, but averred that at the time said Thompson sold said building to defendant Thompson was in possession of the realty, described in the petition, under a written contract, dated June 3, 1913, signed by Thompson and plaintiff. The reply sets out the conditions of said contract, and concludes with a denial of every allegation in the new matter contained in the answer and not in the reply specifically admitted.

The suit was instituted on March 24, 1917. A trial was had at the May term, 1917, which resulted in a verdict for the defendant. A motion for a new trial was sustained by the court, and at a second trial, had on May 6, 1919, a verdict was again returned for the defendant. From a judgment on that verdict plaintiff appeals.

The facts are these: On plaintiff's lots, described in the petition, there was standing a small frame building. Plaintiff had placed one L. A. Thompson, a real estate agent residing in Montgomery City, Mo., now deceased, in the possession of the property, first as his agent to rent, and then as his vendee under the following contract:

"Montgomery City, Mo., June 3, 1913.

"G. B. Walker, 2101 Clark Ave., St. Louis, Mo.—Dear Sir: My proposition to you regarding your property lot 7 and part of lot 3, block 33, Montgomery City, Missouri, is this:

"I will guarantee and pay all rent for said property at the rate of three dollars ($3.00) per month, payable quarterly, including rent due about October 1st, 1910, subject to correction if shown needful, by former letters; pay all back taxes against the property and likewise all subsequent taxes; repair and keep the sidewalk according to regulation, keep the buildings in as good, or better condition as they now are, until the conveyance of said property to me as heretofore agreed upon between us at the price of three hundred dollars ($300.00). Payment of said purchase price to be made on or

                   before June 3, 1916.   L. A. Thompson
                     "Accepted in full June 3, 1913
                                                "G. B. Walker."
                

In July, 1913, the defendant purchased from L. A. Thompson the frame house, situated on the said lots belonging to plaintiff, and paid him the sum of $50, being the purchase price therefor; shortly thereafter the defendant removed said house from the premises.

The evidence established that some time In 1914 the plaintiff ascertained that Mr. Thompson had sold the house, and that the same had been removed from the premises. The evidence on the part of the defendant tended to show that the plaintiff called Mr. Thompson to account for selling the house, but accepted from him the purchase price obtained in the sale. The defendant denied that he had accepted the $50 on account of the sale of the house, but that the same had been received an account of rents due him from Thompson.

Both sides tried the case on the theory that the measure of damages was the difference in the market...