*1 the increase completed improvement namely, the effect the effective date property as at the market value it existed making the effective providing reason ordinance therefor. The and dam- assessing both benefits date time for of the ordinance the im- has an improvement often ages proposal that a an is make than A date increasing property values. later mediate effect toward for con- proceedings authority to commence' effective date advantage usually, demnation would damages they or assessed be awarded whether' are to owners benefits, and, damages increased and would thus be benefits, because general public which deceased, disadvantageous would be damages pay the over benefits. has to excess Real Estate Appellants benefits as follows: were Checotah assessed $1600; Dusenberry ah, Development Company, $4486 P. et & Rebecca $7318;. Hampson $1139; Company, D. ah, Frederick National Lead et say Appellants these- Package Company,. $2926. National Veneer arbitrary basis are- assessments based because were per cent -less than the amount exception almost without same city’s witnesses, and testi- of benefits testified to because their mony thorough analysis of upon a shows that it was founded more concerning- governing appellate facts. review We stated the rules applies: other case. What we said there similar contentions testimony produced city be substantial here we since find report as tending show that the commissioners’ to these- proceed- prejudicial find no error in these benefits was correct. We ings for assessment benefits. J., sitting. judgment Coles, not is affirmed. Company v. Chouteau Appellant, Antonopoulos, Trust
Peter Company. Mortgage (2d)W. 84 S. 1059. Chouteau en Banc, July 10, Court 1935. *2 Spencer, appellant. & Kratlcy, Soffer Nessenfeld respondents. Garstang &
Carter Jones and E. James *3 WESTHUES, Appellant petition filed a the Circuit Court C. Missouri, alleging respondents had in City Louis, that of of St. purported of possession a trust to have their certain notes and deed alleged signed appellant. It was the notes and deed been through asked court Appellant had obtained fraud. trust been enjoin respondents of trust notes and to to cancel the deed and accounting, also for an foreclosing Appellant asked the deed of trust. to him certain not accounted sums alleging had trial heard the money which he entitled. The court was upon charge only fraud and entered decree for failed to theory appellant had on the respondents, apparently taken. judgment appeal any From this fraud. prove are as follows: Briefly charges the-petition of fraud in stated the pur- negotiated alleged June, It was at North Sixth of real located of a certain tract estate chase agreed pay the sum city Missouri. He Street, Louis, of St. alleged purchase price. It was that he was $29,500 as full English language to a limited: speak only and understand able to. agreed for him to' act the defendants and extent. He consulted in cash defendants consummating paid $3200 the deal. He and purchase price. him for the balance of' the agreed to make a loan to promissory arrangement was to execute pursuance to this dates, on the notes, payable and deed of trust on various alleged payment of the It was that defendants notes. secure totaling signature sixty promissory notes appellant’s obtained not have amount of the notes should $30,000, when in fact the total alleged that $26,300. It was further defendants been in excess an additional number fraudulently procured appellant’s totaling $5500, upon secdred a second deed trust of notes alleged Appellant all of the notes and the property. represented defendants to him that his two trust because deeds papers necessary complete signature to the various notes building obtaining purchasing the transaction of the loan due; was unable to read relied for the balance that he signing.- papers what These statements as to defendants’' alleged petition. in the material of fraud Ap- were the charged collected rents from pellant also that defendants had- building money them various sums of for which paid and that he had *4 He, the proper credits. asked had not received the him the collected require account to sums defendants to court to $30,000 notes, in between the also for the difference his actually advanced, defendants, for $26,300, sum him, and the benefit. in which the execution the notes an answer
Respondents filed appellant’s petition, in were admitted. trust, mentioned and deeds of they sale to Respondents had caused notice of also admitted advertising 6, appellant’s property for sale on June published, be satisfying payment the of the-notes described purpose of charges denied. All of fraud were trust. in the second deed of hearing the trial court limited the intro- During the case the fraud, stating if charges the fraud duction of evidence accounting. could decree an charges then the court were sustained charges fraud were not sustained then the case however, If, the evidence, by appel- offered the close of be at an end. At would following occurred: fraud, lant on They I bill plaintiff’s ask that the be dismissed. “Mr. Walther: Charge any here. proven haven’t your defense. We don’t sustain demurrers Put on “The Court: has your what he equity on defendant and see these cases. Put in say. Now, I present rested. re- Well, have Walther: “Mr. —I going any proof. put on put am not to. fused to —I proof all “The That of the the case? Court: will be request make for a dismissal Yes. And then I Walther: “Mr. the n plaintiff’s bill. ’’ ‘‘ right. taken All matter will be as submitted. : The The Court plaintiff’s petition bill dismissed or Subsequently the court trial hearing testimony. any further . without Preliminary own to the examina- Appellant testified in his behalf. fully questioned he was merits of the case reference to the tion with English. sides both ability speak Counsel on his to read and the wit- examination. feel that part took in this We and the court English language some- knowledge was at least lack of of the ness’s exaggerated. on the merits of what Nevertheless his examination compre- definitely that it was him to case disclosed difficult for questions it meaning many at of the asked and times hend .the entirely apparent misunderstood what was said. that he was born in Greece and came to that appellant disclosed country. go 1906. to school this the United He did not States.in lan- spoke their people native land associated He .his with meaning of guage. was, therefore, difficult to ascertain the true It Piecing together fragments of his testi- appellant’s evidence. mony story Appellant was about as follows: became .his substance buying located at North Sixth Street. interested in evidently matter with a man True- He named first discussed Drake property. apparently represented who owners blood, parts country owners, lived various brothers, —New Washington. negotia- State of After this first York, and. the Florida accompanied appellant Trust appellant’s brother to the Chouteau tion respondents. There introduced to Company, the offices of gathered may St. Jean. It the name of officer of company prior at the trust had been the record from building. Ap- purchasing of this with reference to to this time talking for him that his brother did pellant maintained arranged he, appellant, was pay $2700 it at this time was purchase price to be borrowed balance of the cash and the *5 Appellant Company. stated that told Trust the Chouteau sign necessary day papers complete and to return the next to necessary Appellant loan. re- papers also the the deal and by day accompanied his brother. On was not next but turned the sign certain asked, by Jean, papers St. to day was appellant which, he was informed would be necessary complete, to and the sale to company. obtain the loan from trust Appellant testified he only signing was led to believe was he papers pertained such arrangements to the sale and loan as per day He before. signed
testified that he did not learn that he had a second deed of trust and the therein described, amounting notes $5500, until days filing a prior few present He suit. also claimed that the first deed of trust and notes should not have in excess been $26,500. of A cheek in $29,751.42, treasurer’s the sum of dated September 16, by 1925, issued the Chouteau Company Trust and by appellant indorsed brothers, and Drake was introduced in evi- dence.
The exact-purchase price the.property in was left somewhat by Viewing doubt the record. appellant’s any angle evidence from $30,000. it was Appellant’s not in excess of evidence disclosed paid evidently he had $500, bargain. Trueblood to bind the He paid over to the trust company, brothers, $2700 Drake in cash signed the first deed of trust and notes above referred to in the $30,000. sum of He also the second deed of trust and’notes making grand the sum of $5500, $38,700, exchange a total for which building testified he received deed for a agreed which $28,000. to pay Of $38,700 this total of Trueblood paid $500. company, The trust cash and received totaling $38,200. notes amount, Of this only received $29,751.42, as evidenced check treasurer’s referred to above.
This $8,448.68 would leave a balance unaccounted for large evidence. entirely This amount of course is too to have been expenses absorbed incidental and commissions.
Respondents in their brief maintained of fraud proven by agree. were not the evidence. To this we cannot uncontradicted appellant, evidence shows that a man unable to read English language, believe, by agent, respondents’ led to signing that he was trust notes a deed of for a loan sufficient pay building purchase price balance due on the of a which in any when, event should not have been in excess of $28,000, as a agent fact, respondent matter of procured his aggregating $35,500 *6 258 made vendor prospective purchaser a to a
sentations or vendee property value of to the where the value of the could as easily ascertained the vendee. Nor we have a case wherein be do signed read, ascertaining party, able to a contract without con- a its agreed But banker a of a tents. we have a who had to make loan papers procured certain amount. When were aggregating borrower’s to notes a sum far in of the excess agreed upon. of the loan amount To have misled the was not difficult task if his this case a we take into consideration English inability to re- write read and the fact sign quired to numerous installment notes. distrusting Jean, reason
What would have had St. agent respondents? Appellant arranged had loan the when day previous accompanied his brother him bank. Is to the presumed likely the law such to know that he was and, therefore, defrauded redress him to be should be denied because have with him he did not someone to watch St. Jean? We think not. quote approval, cases, with a law We from few statements of the In 66 applicable Hall, 233, to this case. Walsh v. C. c. 238, N. l. following is statement found: require prudent law does not a every
“The man to deal with one guard rascal, against a and demand as covenants to the falsehood of every representation, may which made, as fácts which con- material inducements contract. stitute to a There must be reasonable integrity business, men, or the reliance transactions of facility and commerce could not be conducted trade with that enterprise, which are essential to successful confidence and the ad- individual and national prosperity.” vancement of wealth and Post, 62 651, Hun, 303, In Brown v. N. Y. 1 we read: another, person “A deceived the fraudulent misstatements of vigilance duty discovery him active owes no in the fact they are false.” also, 570, 955; 209 Thorpe, Buckley Forbes v. Mass. 95 N. E.
[See, Co., App. Acme 113 Ill. harmony prin v. Food with the 210.] ciples of law in the above is the found cases case of State rel. v. ex (2d) Bland, 601, 1029, Mo. 23 S. W. where a review of number illuminating question Missouri and an cases discussion of the now following will before us be found. The statement v. Judd Walker, 312, 337, 215 Mo. c. W. 980, l. 114 S. l. c. approved: loosely negligence
“It has been sometimes said prevent recovery will vendee for the fraud of the vendor. word ‘negligence’ connection, meaning used in that we understand its negligence, unhappy law of is an expression. Fraud will- is a act, perpetrating wrong ful, rights malevolent directed to in a That such an act vendor should not another. be actionable negligence because or inadvertence of the vendee mere ought good good law. neither ethics nor fraud, to be preventing see, voluntarily eyes open them is to such If shuts his when one length (in dealing with folly arm’s guilty is of an at a one another) act go injury; men could not on own and the affairs of to his *7 being upon rip that sort. up if transactions of courts were called deception up . . . to a But am element leads when willful of chamges.” (Latter ours.) transaction, the whole situation italics disputed, not ease, evidence, respondents So in have which in by agent deception, respondents, disclosed a of deliberate obtaining and deed of trust of appellant’s to the notes facts may respondents possession $5500. It in of be that were explained disprove which as would have the whole transaction so They in- However, they the fraud. sat mute. even declined the explanation. vitation of the trial court come forward and offer an if circumstances, respondents Under the it would seem had a that legitimate place defense have been would anxious to the facts entirely disproved. before the court to the fraud be the end Taking record, appellant the evidence disclosed was entitled equitable judgment relief. that a It is evident should have been canceling entered, by *8 Corbett Shelley J. I. Stiles relator.
Sam notes and two deeds trust. appel- addition paid lant cash $2700. the sum of The evidence shows that in consideration for these notes the cash appellant only paid $29,751.42, received which was over to the owners property purchased by appellant. Respondents have cited cases support theory of their opportunity had read signed, or, notes and deeds of if read, trust that he he was unable to failed, .-papers having to have had someone read the for him and so he cannot We not applicable. do recover. do deem rule of law charge misrepre- In this case we do have a not fraud because
Notes
trial notes court, and deed of trust of enjoining proceedings $5500 and the threatened foreclosure instituted by respondents. brings question accounting. This us an Respondents to the of suggest appellant except their brief ruling did not of rejecting court in proffered trial in support of the accounting, question should be out the case. The charges ruling trial court’s of fraud should first be appellant determined the event was successful then a decree accounting for an Appellant acquiesced should made. be in this rul- ing. If, therefore, appellant a decree for be ordered this court given then he opportunity should be an to offer whatever evidence may accounting. support he have in an If hadwe found for re- spondents fraud, on the then of course could accounting. words, not have an other we could not reverse the judgment court, tidal because it denied an account- question reason ing, preserved for the that the was not for review. question The correctness of decree of the the fraud charge judgment properly preserved must be reversed. judgment charge, The will then, ap- on the fraud favor of ruling court, trial pellant and, under the the case should be accounting. open purpose judgment is, therefore, the circuit court reversed with canceling directions to enter a decree in favor of the note given $5500 and the second deed of trust to secure the same and foreclosing enjoining respondents the deed of trust. Also with calling decree directions to enter a on to ap- account pellant sums, may if which any, for whatever be entitled. foregoing Divi- opinion Westhues, C., PER CURIAM: —The Judgment adopted opinion Two, sion is as the of the Court en Banc. specified reversed and cause remanded with directions as in said JJ., opinion. except Leedy, All are of the concur, Coles and who reversed remanded. opinion that said cause should be Agnes Bowdon, Relator, D. v. at the Relation of State of Missouri Bailey Perry Smith, and Robert J. T. E. Allen, Walter (2d) Appeals. S. W. 63. Judges Springfield Court July Banc, 1935. Court en