Walters v. Maloney
| Decision Date | 04 October 1988 |
| Docket Number | No. 15397,15397 |
| Parties | Loren W. WALTERS and Lucille K. Walters, Plaintiffs-Respondents, v. William A. MALONEY and Norman O. Chaney, Defendants-Appellants. |
| Court | Missouri Court of Appeals |
Emory Melton, Cassville, Robert S. Wiley, Crane, for defendants-appellants.
David F. Sullivan, Springfield, for plaintiffs-respondents.
Plaintiffs Loren Walters and Lucille Walters, husband and wife, brought this action in fraud against their real estate brokers, defendants William Maloney and Norman Chaney. The dispute arises from the sale of plaintiffs' residence in Cassville to Irvin Hampton and Helen Hampton, husband and wife. Defendant Maloney is the broker who figured principally in the transaction. Defendant Chaney does business under the name "Ozarks Realty" and defendant Maloney is the manager of Chaney's real estate office.
In general it is plaintiffs' theory that they were defrauded in that Maloney and Chaney failed to inform them of the involvement of the Boatmen's National Bank of Cassville ("the bank") in the sale. The bank made a $50,000 loan to the Hamptons, the proceeds of which they applied to the purchase price of $85,000 which they had agreed to pay plaintiffs. The Hamptons gave the bank a first deed of trust securing the $50,000 loan and gave the plaintiffs a second deed of trust securing the unpaid balance, $34,900, due the plaintiffs on the purchase price. The Hamptons had earlier paid $100 in the form of an earnest money deposit. Later the Hamptons sustained financial reverses, the property was sold, the Hamptons' indebtedness to the bank was satisfied in full, and the plaintiffs realized only $17,339.11 on the loan secured by their second deed of trust.
A jury found the issues generally in favor of the plaintiffs and against both defendants and awarded actual damages in the sum of $23,000 but denied plaintiffs' claim for punitive damages. Defendants appeal.
In general defendants' contentions on this appeal are: (1) the petition is fatally defective in failing to plead, or inadequately pleading, certain elements of an action in fraud; (2) the evidence is insufficient to support the verdict against either defendant because certain elements of an action in fraud were not shown; (3) the separate verdict-directing instructions against the two defendants were erroneous; and (4) the evidence is insufficient to support the verdict against defendant Chaney for reasons in addition to those raised in point 2.
On September 4, 1984, plaintiffs and defendants signed a "Listing Agreement," by the terms of which defendants were authorized to find a buyer for plaintiffs' residence at a sale price of "$88,900 and terms of cash or as otherwise agreed to."
On March 12, 1985, defendant Maloney, pursuant to the listing agreement, showed the property to Mr. and Mrs. Hampton, and the Hamptons, as buyers, signed a printed "Contract for the Sale of Real Estate." The plaintiffs, as sellers, signed it later the same day.
The contract contained the following typewritten provision:
"Buyer offers to purchase as follows
$85,000.00 selling price
50,000.00 at closing
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$35,000.00
100.00 earnest money
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$34,900.00 due within 120 days from date of closing or upon possession date
which is agreed upon mutually if sooner."
The contract also contained the following provisions, the underlined portions of which were typewritten:
"The price for said property shall be Eighty five thousand and No/100 Dollars; to be paid by Buyer as follows: $100 at the time of the execution and delivery of this .............................................................
contract, the receipt of which is hereby acknowledged by the Seller, and which is deposited with [Defendants'] Escrow Account as agent for the Seller, as earnest money, and as a part of the purchase price and consideration for this agreement, ...
On March 26, three days prior to the closing, buyer Hampton talked with Cherry Warren, executive vice-president of the bank, and made arrangements for the obtaining of a $50,000 loan, the proceeds of which were to be used by Hampton in making the $50,000 initial payment to the plaintiffs.
Also on March 26 defendant Maloney received a telephone call from the secretary of attorney Joe Ellis. The secretary informed Maloney "that there was going to be bank money involved."
At the trial Maloney testified: "[T]he secretary] asked me, 'Do you know there is going to be a first deed of trust with Boatmen's Bank on the property?' and I said, 'No.' I was dumbfounded. I said, 'I did not know that,' and I said, "
Maloney also testified that later on March 26 he telephoned Walters and said, At the trial Maloney testified: Maloney also testified, "We wanted to go see Joe Ellis, so I could get Joe to explain in detail what was going to happen and if they wanted to go through with the transaction." Maloney testified that he did not at any time prior to the closing tell the Walters "that Mr. and Mrs. Hampton were borrowing $50,000 from a bank, and the bank would have a first mortgage on their home."
On March 29, 1985, the "closing" of the sale was held at the office of attorney Joe Ellis. Present at the closing were the two plaintiffs-sellers, the two buyers, defendant Maloney and attorney Ellis. At the jury trial all of these people were called as plaintiffs' witnesses.
Although the testimony of the two plaintiffs differed widely from the testimony of the other witnesses with regard to what was said at the closing, there is no dispute with regard to what documents were executed at that time. The documents included:
Exhibit 3--A warranty deed by which the plaintiffs conveyed the property to the Hamptons.
Exhibit 5--A "Seller's Statement," signed by the plaintiffs and by defendant Maloney. This document listed certain charges to the sellers, including "2nd Deed of Trust ... $34,900." Other charges to the sellers, deducted from the sale price of $85,000, included charges for tax adjustments, abstracting, preparation of warranty deed, and sales commission. After deduction of those charges the sellers were entitled to a check in the amount of $45,210.74. Exhibit 5 also recited that the sellers Exhibit 6--A document entitled "Receipts and Disbursements." Among the contents of that document is the following, the typewritten portions of which are underlined:
had examined and received a copy of it and Exhibit 6.
"Name of Buyer Irvin C. and Helen L. Hampton
Name of Seller Loren and Lucille Walters
Address of property purchased Rural Route 1
Cassville, MO 65625
Receipts Amount
Escrow Deposit from Buyer $100.00
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Loan for Buyer from: Boatmen's Bank
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Cassville, MO 1st DOT 50,000.00
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Loren and Lucille Walters
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2nd DOT 34,900.00
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Insurance Adjustment (Credit) 225.34
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Balance from Buyer ----------
Total Receipts 85,225.34"
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Exhibit 7--"Deed of Trust" executed by the Hamptons in favor of the bank securing a note in the amount of $50,000. The note itself had been signed by the Hamptons earlier that day at the bank.
Exhibit 8--"Second Deed of Trust" executed by the Hamptons in favor of the plaintiffs securing a note in the amount of $34,900. This deed of trust recited that it was subject to the deed of trust, Exhibit 7, in favor of the bank.
Exhibit 9--Note signed by the Hamptons in favor of the plaintiffs in the amount of $34,900. The note recited that the principal sum of $34,900 was to bear no interest and was to be paid in full 120 days from its date (March 29, 1985).
Plaintiff Loren Walters testified that at no time prior to or during the closing did defendant Maloney tell him...
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