Yeager v. Wittels

Decision Date17 December 1974
Docket NumberNo. 35465,35465
Citation517 S.W.2d 457
PartiesMaggie YEAGER, Plaintiff-Respondent, v. Malcolm WITTELS and Wittels Investment Co., Inc., Defendants-Appellants. . Louis District, Division Three
CourtMissouri Court of Appeals

Morton L. Schwartz, Clayton, for defendants-appellants.

Raymond D. Howard, St. Louis, for plaintiff-respondent.

SIMEONE, Presiding Judge.

This is an appeal by defendants-appellants, Malcolm Wittels and Wittels Investment Co., Inc., from a judgment of the circuit court of the City of St. Louis entered on April 19, 1973, after a jury verdict in favor of the plaintiff-respondent, Mrs. Maggie Yeager, for actual and punitive damages for fraudulent misrepresentation. We affirm.

Since one of the principal contentions on appeal is that the plaintiff, Mrs. Yeager, failed to make a submissible case, we will summarize the voluminous evidence in the light most favorable to the plaintiff and give her the benefit of all reasonable inferences to be drawn therefrom, disregarding the defendants' evidence unless it tends to support the plaintiff's case.


In June, 1954, James Yeager and his wife Maggie 1 purchased from the Wittels Investment Co., a real estate company, a residence at 1803 North Jefferson Avenue in the City of St. Louis for $7,700. The property was subject to two deeds of trust; the first for $3,750.00 and the second for $3,300 which by 1959 had been 'paid down' to $2,962.25 and $1,817.42 respectively. From 1954 until 1959, the Yeagers made monthly payments to the defendants to reduce the amount of the deeds of trust. Mr. Wittels would often come to their residence to collect the payments.

Sometime in late 1958 the Yeagers received notice from the City of St. Louis advising them their property on Jefferson was to be condemned in order to open and widen Jefferson Avenue. Presumably during this interim the Yeagers searched for another home. On September 23, 1959, they received a letter indicating that a hearing was set for October 22, 1959, to determine the worth of the property taken by reason of the street opening and widening. They were advised to bring a written appraisal of its value to the hearing. The Yeagers took the letter to Mr. Malcolm Wittels who, according to Mrs. Yeager, said that 'he would take care of it.' Mr. Wittels informed Mrs. Yeager that 'he was going to prepare me a house at 4563 North Market, that he would sell me another house.' Eventually and on October 22, 1959, Mr. and Mrs. Yeager entered into an 'exchange contract' whereby Mr. and Mrs. Yeager agreed to exchange their property at 1803 North Jefferson for the residence located at 4563 North Market Street, 2 owned by a straw party in Mr. Wittel's office--Nona Schnell. The contract recited that the North Market property was subject to a deed of trust in the amount of $6,750.00, 3 and that a cash payment of $1,600.00 was to be paid to the Yeagers.

Prior to the exchange of properties, Mr. Wittels had told the Yeagers that the city was going to tear down their house on North Jefferson, and that he would see to it that she got another house. According to Mrs. Yeager's testimony, he also stated that she 'wouldn't get any' money from the City, but 'just exchange the house where I am at and get that on North Market, but I don't get no money.' 4 After the exchange, Mr. Wittels informed Mrs. Yeager that she was entitled to some money from the City.

Although the exchange contract recited that $1,600.00 was to be paid to the Yeagers, plaintiff's evidence indicated that she received $700.00. On December 9, 1959, the Yeagers executed a general warranty deed on the Jefferson property to Nona Schnell, and on the same date a general warranty deed for the North Market street property was executed transferring the property to the Yeagers.

On December 14, 1959, the report of the City's condemnation showed that an award was made for the Jefferson property in the amount of $8,850.00. From this sum, the holder of the first deed of trust on the Jefferson property was paid $2,962.50, the indebtedness remaining on such trust deed. The remainder, approximately $5,887, was retained by Wittels Co., although Mr. Wittels indicated that $1,600.00 of the remainder had been turned over to the Yeagers. The $1,817.42 indebtedness remaining on the second deed of trust was paid to the holder of the second deed of trust.

Sometime in 1968 or 1969, a neighbor informed Mrs. Yeager that she was entitled to about $8,000 for her property on Jefferson.

The Yeagers, as stated, exchanged their Jefferson Street property for the North Market property. As testified to by Mr. Wittels, that property was originally purchased by Wittels Co. for five or six thousand dollars, and prior to the exchange he made certain improvements on it--furnace, roof, electric, plumbing, etc. He estimated the improvements at approximately $3,000 and the residence was evaluated at approximately $8,300 to $9,200. Mr. Wittels could not produce checks showing the cost of these improvements, so at trial defendant sought to introduce certain bookkeeping records, not kept by Wittels, but by an accounting firm, in order to show the costs of the improvements.

Mr. and Mrs. Yeager lived in the North Market property from 1959. She made mortgage payments from 1959 until May 2, 1970, paying some $75.00, sometimes reduced to $50.00 per month. She received various types of receipts for the payments, some for principal, some for interest, the impact of which she did not understand. Finally, she decided that she had paid off the mortgages on the North Market property, in the amount of about $12,000.00, and after May 2, 1970, discontinued payments.

Mrs. Yeager testified that she learned that she was entitled to the condemnation money some four or five years before trial when she was so informed by a friend--neighbor.

In July, 1970, Mr. and Mrs. Yeager filed an original petition. However, on October 12, 1971, an amended petition was filed in four counts. 5

Count I sought a temporary restraining order and a permanent injunction to restrain defendants from 'foreclosing and selling' the North Market property because she was not delinquent in her mortgage payments but has paid the full value of the property. Count II, upon which this action was tried, sought actual and punitive damages for the defendants' alleged fraudulent representation that she would be paid nothing for the Jefferson property. She further alleged that relying on this false representation, she exchanged the Jefferson Avenue property for $1,600.00 and had to pay $6,750.00 more. She sought $25,000 actual and $75,000 punitive damages. Count III sought an order requiring the defendants to give a complete accounting of all principal taxes and interest paid on the North Market property, but this count was subsequently dismissed on November 5, 1971. In Count IV, referred to as 'Quiet Title', she prayed that a 'judgment of fee simple (sic)' be awarded to her and that all mortgages be 'vacated, abolished and held for naught.' Only Count II was tried. A temporary restraining order was granted pursuant to Count I on November 25, 1970, and presumably is still in effect. Count IV has not been disposed of. 6

Trial was held for several days during the week of April 16, 1973, before a jury and the Honorable William E. Buder. During the trial there were several incidents of which defendants complain.

(1) At trial Mrs. Yeager testified that she had received $700.00 cash in the exchange of the properties. However, in her amended verified petition she alleged that 'her property' was exchanged for only $1,600.00 'though the City valued and made an award to defendants of $8,850.00 for it, and further, that plaintiff had to pay $6,750.00 more. . . .' While examining Mr. Wittels, counsel for Wittels attempted to read that paragraph of the amended petition to the jury. The court sustained an objection but indicated that counsel could read the same statement from the original, abandoned petition.

(2) During the course of examination, Mr. Wittels testified that about $3,000.00 worth of improvements had been made on the North Market property prior to the exchange. Since this was done some years ago, Mr. Wittels was unable to produce cancelled checks to prove the extent and nature of the improvements. Counsel for Mr. Wittels therefore sought to introduce the defendant's cash disbursement bookkeeping records kept by an independent accounting firm. The trial court sustained an objection to the use of such records to prove the improvements made.

(3) During the course of Mrs. Yeager's direct examination, she testified that she had paid a total of $12,818.75 on the North Market property over the years since 1959. There were some 126 or 127 receipts and notes relating to such payments introduced in evidence. The court admitted the receipts in evidence, but sustained plaintiff's objection to passing the receipts to the jury. Numerous other exhibits, however, were passed to the jury. The court informed defendants' counsel that he could argue what the receipts and notes would show.

(4) At the close of the case, defendants offered Instruction A 7 but such instruction was refused.

At the close of the plaintiff's case defendants moved for a directed verdict on the grounds that (1) plaintiff failed to make a submissible case for fraud, (2) the action was barred by the statute of limitations because plaintiff was aware of any fraud in 1959 but did not file suit until 1970 and (3) in effect there was a fair exchange of the property. The court overruled the motion.

At the close of all the evidence the motion was renewed and defendants in addition raised the issue that it was incumbent upon the plaintiff to tender the return of the North Market property as a condition to maintaining the suit for fraud. The motion was denied.

The cause was submitted on Count II and the jury returned a verdict for the plaintiff for $4,000.00 actual and $5,000.00 punitive...

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