Orlann v. LaederichOrlann v. Laederich
- Reporters:
- , ,
- Before:
- Boi-iling, Cooley Cc., Westhues Cc. (per curiam)
The case involves the transfers from Victor H. Laederich and Marie Laederich to W. W. Barrett and from W. W. Barrett to S. S. Orlann of a 99-year lease, providing for an annual ground rental of $7,200 and bearing date of January 1, 1914, on premises occupied by what is known as the Delmain building, Ninth and Main streets, Kansas City, Missouri. Mrs. Orlann is crippled and Mrs. G. S. Shore, her mother, acted as her agent in the negotiations leading up to her acquisition of the lease. All the parties involved in the transaction lived in Kansas City with the exception of Barrett, who was a banker of Sedalia, Missouri. Defendant Morgan was a part-time employee (clerk) of Laederich, and had a desk in the same office. The Laederichs acquired the lease in September, 1923. Thereafter, the Laederichs and Barrett agreed upon a trade for the lease. Laederich secured Charles K. Blender, of San Francisco, California, to act as “straw man” for him, and at Barrett‘s request, Morgan secured Edna L. Nelson, with whom Barrett was not acquainted, to act as “straw party” for Barrett. Miss Nelson and Laederich were not acquainted. The Laederichs, under date of March 24, 1924, assigned the lease to Miss Nelson in consideration of the transfer of two farms, aggregating 630 acres, in Pettis County, Missouri (subject to $40,000 indebtedness, secured by deeds of trust thereon), and a $70,000 indebtedness, evidenced by a note secured by a mortgage back on said leasehold estate. According to Morgan, under Barrett‘s instructions five notes aggregating $40,000, payable to the order of Charles K. Blender, and secured by a second mortgage on said leasehold, were executed by Nelson. This $40,000 transaction was no part of the trade between the Laederichs and Barrett, but was just “plastered on.” The title to the Pettis County farms was not in Barrett, but the farms were conveyed to the Laederichs by the parties holding the record title. Charles K. Blender endorsed the $70,000 note and it was delivered to Mr. Laederich. He also endorsed the notes evidencing the $40,000, and these were delivered to Barrett. After acquiring the lease, Barrett paid Morgan $75 monthly to collect the rents and manage the building.
Reading an advertisement of Mr. Vogrin, a real estate agent of Kansas City, Mrs. Shore called on him. Vogrin showed her through the Delmain building, which she examined. She liked it. Vogrin told her all about the rents that were being received, and acted as agent for Barrett and for plaintiff, receiving, on behalf of plaintiff, a commission for his services. Vogrin showed her a statement purporting to set forth the income from and expenses of the Delmain building, which, however, he retained. She secured a duplicate of the statement from a Mr. Lentell, another realtor, made up, accord
“The annual rental is $21,600.00
“Expenses:
“Ground rental $7,200.00
“Janitors and help 1,620.00
“City heat 1,200.00
“Light and water 240.00
“Insurance 84.00
“Taxes 2,100.00 12,444.00
“Net $9,156.00
“There is net a first mortgage of $70,000 at 7%, payable $4,000 per year for four years then $5,000 per year for four years and the balance in nine years. Owner will trade lease and improvements for good clear land. W. J. Lentell.”
The witness testified that Laederich looked over the statement and took out of his desk other statements which looked just like it; and, after comparing them, said “The statement is all right with the exception that your statement calls for $4,000 payment on the mortgage and we decided that we‘re going to collect $3,000 on the mortgages, four payments or five, and then will commence $5,000 payments; and he also made a remark as to the expenses on that statement, light and water, and he said ‘that includes power also.‘” Mr. Morgan looked over the statement and said “The statement is correct.” Plaintiff‘s narrative of the testimony continues: “I asked
According to the testimony, when the Laederich-Barrett deal was closed, Barrett owed several hundred dollars taxes on the farms. To secure this, Miss Nelson, with the approval of Barrett, executed an assignment in blank, which was delivered to Morgan, said assignment being acknowledged on July 22, 1924, and held by Morgan, while he was collecting the rents for Barrett, until some time in October or November when it was delivered to plaintiff.
Mrs. Shore testified she made no investigation of the facts embraced in the statements of Messrs. Laederich and Morgan, but, relying on their representations, the lease was ultimately purchased for Mrs. Orlann subject to the $70,000 first mortgage. She never met Barrett until about thirty minutes before closing the deal. Barrett‘s abstract was continued down to October 8, 1924, and the assignment of the lease to Mrs. Orlann was recorded November 17, 1924. The $40,000 in notes were delivered to plaintiff and that mortgage released of record. Mrs. Shore considered the transaction an important one, and it took some four or five months after her interview with defendants Laederich and Morgan to close it.
Plaintiff‘s evidence established that the leasehold had little or no equity above the $70,000 indebtedness secured by the first deed of trust.
With reference to the net income, defendant Morgan testified that the disbursements just about equaled the income. Plaintiff offered to prove that annual expenses for painting, decorating and various kinds of supplies necessary in the operation of the Delmain building amounted to $2,000, which, when added to the items on the statement and installments and interest under the $70,000 indebtedness, would result in a deficit.
A number of the allegations of fraud set forth in the petition, which is in one count, are not material to this review as plaintiff makes no contention she acted in reliance thereon, nor are they urged as grounds for reversing and remanding the cause. Thus restricted, plaintiff‘s petition, in substance, charged fraud and deceit in that a conspiracy existed on the part of Barrett and the defendants (the Laederichs and Morgan) to defraud in the execution of the aforesaid purported sale or exchange of said leasehold by the Laederichs to Barrett; that Barrett (or Miss Nelson, who acted as straw party for Barrett) had never been the owner of the leasehold; that the $70,000 and $40,000 indebtedness, secured by first and second deeds of trust, respectively, on the leasehold were not genuine, but had been executed for the purpose of giving a false appearance of value to the leasehold; and that the value of the leasehold, the price paid for the leasehold by Barrett, and the net annual income from the leasehold was misrepresented by defendants to plaintiff.
Defendants contend that this court is in no position to pass on the issue of the sufficiency of the evidence to make a submissible case for the reason plaintiff has not presented all the evidence as given at the trial but only her version of what a portion of the evidence shows. Plaintiff‘s abstract sets forth a large portion of the evidence in narrative form. The rule, where an appellant contends a respondent did not make a submissible case, that the entire evidence must be set out on appeal [McCarroll v. Kansas City, 64 Mo. 283, 286; Crohn v. Modern W. of Am., 145 Mo. App. 158, 162, 129 S. W. 1069, 1070; Deering & Co. v. Hannah, 93 Mo. App. 618, 67 S. W. 714; Gooden v. Modern W. of Am., 194 Mo. App. 666, 675, 189 S. W. 394, 397(8)] is not to be interpreted so as to preclude an appellant from setting forth the evidence in narrative form [Sessinghaus Mil. Co. v. Hanebrink, 247 Mo. 212, 217, 152 S. W. 354, 355(1); Vandeventer v. Goss, 190 Mo. 239, 245, 88 S. W. 610, 611; Letts v. Wabash Railroad Co., 131 Mo. App. 270, 281, 111 S. W. 138, 141] when the substance of all the evidence is in the narrative of the witnesses [Euler v. State Highway Comm., 227 Mo. App. 755, 759, 55 S. W. (2d) 719, 722].
An appellant‘s printed abstract should set forth so much of the evidence as is necessary to a complete understanding of the specific issues presented and determinative therefrom, either by questions and
In considering the action of the trial court in overruling plaintiff‘s motion to set aside the involuntary nonsuit, taken with leave, plaintiff is entitled to have the facts adduced in evidence, together with all reasonable inferences therefrom (not, however, forced or violent inferences [Williams v. Kansas City So. Ry. Co., 257 Mo. 87, 112, 165 S. W. 788, 794(1)]), taken as true [Randol v. Kline‘s Inc., 322 Mo. 746, 757(1), 18 S. W. (2d) 500, 505(1)].
The uncontradicted testimony of defendants Victor Laederich and A. L. Morgan, appearing from their depositions offered on behalf of plaintiff, established the exchange of the leasehold by the Laederichs to Barrett in consideration for the equity of said Barrett in two Pettis County farms (subject to an indebtedness of $40,000, secured by deeds of trust on said farms) and $70,000, evidenced by a note secured by a first deed of trust on said leasehold. Plaintiff is bound by this testimony and may not successfully invite this court to disregard it [Green v. Western Union Tel. Co. (Mo. App.), 58 S. W. (2d) 772, 773(4); McLain v. Atlas Assurance Co. (Mo. App.), 67 S. W. (2d) 849, 853(5) and cases cited; Polkowski v. St. Louis Public Service Co. (Mo. App.), 68 S. W. (2d) 884, 888(5) and cases cited], or predicate a conspiracy to defraud on that portion of said transaction between the Laederichs and Barrett standing unimpeached in this record. Mr. Laederich foreclosed the $70,000 deed of trust July 28, 1927. It also follows that there was no substantial evidence to support plaintiff‘s charge that this foreclosure was a part of the alleged original conspiracy, and that the transactions between plaintiff and defendants in connection with the foreclosure had no causal connection with the alleged fraud leading to the purchase of the leasehold by plaintiff. This failure on the part of plaintiff to prove a conspiracy is not destructive of the alleged cause of action. The essence of plaintiff‘s cause of action was fraud. Any one or more of several persons participating in the perpetration of an actionable fraud becomes a fraud-feasor, and, irrespective of proof of a concert of action on the part of some or all, is liable [Becker v. Thompson, 336 Mo. 27, 76 S. W. (2d) 357, 361(3), and cases cited] if the party defrauded is in a position to maintain the action for the fraud alleged.
It is well recognized that fraud is not presumed, but must be proved, and the burden rests upon the party charging the fraud.
“As a postulate to a discussion of the charge of fraud,” McCaw v. O‘Malley, 298 Mo. 401, 413, 249 S. W. 41, 44(2) states: “we may observe that in an action for false representations, the burden is upon the plaintiff (defendant herein) to establish by proof that there was not only a false representation, but that he relied upon it, and that such reliance ‘was an act of ordinary prudence,’ and that such representations thus prudently relied upon influenced plaintiff to his damage. . . .
“It follows from the foregoing that—
“‘Where ordinary care and prudence are sufficient for full protection, it is the duty of the party to make use of them. Therefore, if false representations are made regarding matters of fact, and the means of knowledge are at hand and equally available to both parties, and the party, instead of resorting to them, sees fit to trust himself in the hands of one whose interest it is to mislead him, the law, in general, will leave him where he has been placed by his own imprudent confidence.’ . . .
“Where the vendee knows the facts, or may know them by the exercise of ordinary prudence, he must form his own opinions and act on his own judgment. . . .
“Neither law nor equity will afford relief on the ground of false representation to one with equal means of information, who fails to resort to such means. . . .”
The propositions announced in McCaw v. O‘Malley, supra, are supported by citations of authority, which may be consulted with profit. [See also Maupin v. Provident Life & Accident Ins. Co. (Mo. App.), 75 S. W. (2d) 593, 595(3-6).]
A failure to establish any one of the essential elements of fraud is fatal to a recovery. [Dillon v. Hill (Mo.), 178 S. W. 85, 86(1).]
Slaughter‘s Admr. v. Gerson, 13 Wall. (80 U. S.) 379, 383, 385; 20 L. Ed. 627, 628, 629, states: “A court of equity will not undertake, any more than a court of law, to relieve a party from the consequences of his own inattention and carelessness. . . . If, having eyes, he will not see matters directly before them, where no concealment is made or attempted, he will not be entitled to favorable consideration when he complains that he has suffered from his own voluntary blindness, and has been misled by overconfidence in the statements of another.” (And l. c. 385:) “Where the means of information are at hand and equally open to both parties, and no concealment is made or attempted, the language of the cases is, that the misrepresentation furnishes no ground for a court of equity to refuse to enforce the contract of the parties. The neglect of the purchaser to avail himself, in all such cases, of the means of information, whether attributable to his indolence or credulity, takes from him all just claim for relief.” See also Conklin v. Missouri Pac. Railroad Co., 331 Mo. 734, 738, 55 S. W. (2d) 306, 308 (this court en banc stating, that while it has gone a long way in its efforts to protect . . . ‘the foolishly credulous; as against the machinations of the designedly wicked,’ . . . we have never lost sight of the principle that the courts will not protect those who, with full opportunity to do so, will not proect themselves . . . ); Brennecke v. Ganahl Lumber Co., 329 Mo. 341, 350, 44 S. W. (2d) 627, 631(2) (stating: “In view of respondent‘s duty, under all the circumstances, to give reasonable attention to the protection of his own interests, we do not think that the false representations which he says the claim agent made can be said to have been such as were reasonably calculated to induce him to forego inquiry and investigation and rely wholly and solely upon the statements of a man whom he did not know and had never seen before that day“); Bragg v. Kirksville Packing Co., 205 Mo. App. 600, 604, 226 S. W. 1012, 1014, (stating: “A vital part of a case of this nature is to show that plaintiff was fraudulently imposed upon; that he was led astray, knew no better and had no means of informing himself“); Cornwall v. McFarland Real Estate Co., 150 Mo. 377, 383, 384, 51 S. W. 736, 738 (stating: The evidence “showed the property was open to observation and that he [plaintiff] either knew, or might have known, both its money and rental value.” . . . “Moreover, plaintiff could have made personal examination of the property covered by the mortgage had he desired to do so, and thus formed his own judgment as to its value, and also have learned whether it was rented or not. Nothing was done by defendant to prevent him from so doing, and, if he chose to rely upon defendant‘s representations with respect to its cash and rental value rather than do so, it was his own fault“); Higgins v. American Car Co., 324 Mo. 189, 194, 22 S. W. (2d) 1043, 1044; Morgan County Coal Co. v. Halderman, 254 Mo. 596, 645 et seq., 163 S. W. 828, 842.
As we read the evidence and offers of proof, the Laederichs did not profit by reason of the Barnett-Orlann transaction. The affirmative evidence is that Mr. Laederich received nothing therefrom; that it was never discussed between Barrett and Mr. Laederich; that Mr. Laederich knew nothing of the assignment of the lease to Mrs. Orlann at the time it was made, and that Morgan‘s remuneration as rental agent for Barrett ceased. Mrs. Laederich did not become acquainted with plaintiff or Mrs. Shore until months after the transaction. Neither Barrett nor any of the defendants pressed the purchase of the leasehold upon plaintiff.
Plaintiff was represented by Mrs. Shore, her mother, and Mr. Vogrin, a Kansas City real estate agent. Plaintiff did not charge or attempt to prove misconduct on the part of her agent Vogrin. (It is somewhat unusual, under the circumstances of this case, that neither plaintiff, although present in court, nor her agent Vogrin
Plaintiff urges the tendency of modern decisions to condemn the falsehood of the fraud-feasor rather than the credulity of his victim. The facts in this case distinguish it from the cases wherein such a tendency has been manifested. The action sounds in tort. Parties, sui juris, in full possession of their faculties and unrestrained in their action, when about to enter upon a business transaction should not look to the law or the courts as a child does to its parent or a ward to its guardian. The exercise of common sense, self-reliance, and ordinary diligence and prudence is to be expected in such transactions between adults, and indolence, listlessness, indifference and unwarranted credulity should not be encouraged. Common experience teaches us one looks with favor upon his own property; that a desire for gain prompts trading; and that attention to business and inquiry before (rather than after) a trade affords the more certain protection. While one desiring to dispose of property may be under a temptation to make misrepresentations in respect thereto, one who finds on inquiry that he cannot avoid his contract, entered into foolishly or on his mistaken judgment, other than by proof of misrepresentation by the other is subject to the same activating temptation. Courts of justice are not warranted in assuming under any and all circumstances that a litigant asserting fraud (having the burden of proof) is asserting the truth, and, therefore, they should stand in loco parentis, or as a guardian over the affairs of such men, and encourage such claims. To do so places an unjustifiable premium on indiscretion, unreasonable inattention to business and indolence at the expense of the exercise of prudence, ordinary diligence in business transactions and business judgment.
The facts in the instant case distinguish it from the cases of Monsanto Chemical Works v. American Z. L. & S. Co. (Mo.), 253 S. W. 1006, 1008; Goar v. Belinder, 213 Mo. App. 330, 339, 249 S. W. 977, 980; Flack v. Wahl, 197 Mo. App. 10, 23, 193 S. W. 56, 58; Wendell v. Ozark Orchard Co. (Mo. App.), 200 S. W. 747, 749;
Adverting more specifically to the fraud alleged:
Statements as to the value do not ordinarily constitute fraud. [Mitchell v. Eidson, 330 Mo. 445, 451, 50 S. W. (2d) 135, 137(2).] Mrs. Shore testified she asked “Mr. Laederich what he thought the property was worth.” He asked Mr. Morgan, who said $145,000. “Then Mr. Laederich said the building was worth ‘at least $145,000.‘” The statement was made in response to a request for an opinion. Mr. Laederich asked Mr. Morgan before answering, and stated the same figure. Giving consideration to these factors, the statement was an expression of opinion, and not a statement of fact. Further, there is a presumption of right action on the part of the trial court, and upon review, the burden is upon an appellant to disclose the error complained of. [O‘Malley v. Heman Const. Co., 255 Mo. 386, 392, 164 S. W. 565, 566(5).] If Mr. Laederich‘s answer was a statement of fact, plaintiff‘s narrative, in disclosing the error of the trial court, should have quoted more of the testimony
Having reached the conclusion that plaintiff might not successfully allege fraud with reference to the misrepresentations of value, she is in no position to avail herself of like misrepresentations as to cost. There is an entire absence of evidence that the transaction with plaintiff was on any basis other than the value of the leasehold. Had she taken advantage of the ample and unrestricted opportunities available to ascertain the value of the property, she could not have relied on what Barrett may have paid for it. [See, in this connection, McCaw v. O‘Malley, 298 Mo. 401, 415(4), 249 S. W. 41, 45(6).]
Plaintiff‘s petition proceeds on the theory that there was no net income from the leasehold, and the alleged misrepresentations of defendant Laederich (detailed in the statement of facts) that it would carry itself and leave a little net income was actionable. The exhibit offered in evidence showed the annual gross rental and certain items of expenses, itemized; leaving a net balance of $9,156. Although the petition proceeds upon the theory that Laederich‘s statement was to the effect the net annual income was $9,156, Mrs. Shore testified he explained to her that interest and the annual installments on the first mortgage would have to be met; that after reducing the annual installments from $4,000 to $3,000 for four or five payments (after which it would be $5,000 annually) there would be left $1,256. We think it obvious, if this representation be considered one of fact, to one engaged in the management of real property consisting of residences, apartments, store buildings and hotel property that the exhibit upon which the representation was based included no allowances whatever for depreciation, and such items as painting, decorating, window cleaning, supplies of all kinds and repairs and water filter service. To one having the experience of plaintiff and her agents, upon the addition of these items of expense (some of which plaintiff offered to prove would total $2,000 or more annually) it should have been apparent there would be no annual net income after the payment of the interest and installments due on the first deed of trust. Especially do we think this conclusion inevitable upon giving consideration to the fact that for four or five months plaintiff and her agents had the exhibit before them and by the exercise of any degree of attention must have discovered that the exhibit did not include these items of expense. Defendants neither practiced nor brought to bear on plaintiff or her agents any fraud during this period to induce them to refrain from an examination of the statement or which prevented them from informing themselves as to the truthfulness or the extent of the information therein set forth. Had they given some reasonable attention, as they had ample and unrestricted opportunity to do, to the statement, they must have
Under the facts of the instant case, the judgment should be affirmed. It is so ordered. Cooley and Westhues, CC., concur.
PER CURIAM:—The foregoing opinion by Bohling, C., is adopted as the opinion of the court. All the judges concur.