*1 Appellant, v. S. S. Laederich Laederich, Victor Marie Orlann, Morgan. (2d) A. L. 190. 92 S. W. Two,
Division March 1936. *2 ap Raymond for Walter A. Beery James Prince, W. N. C. pellant, *3 Spellman respondents.
Clarence I. BOHLING, G. Mrs. S. S. Orlann against instituted suit W. W. recovery damages Barrett for the for fraud alleged and deceit have been perpetrated in a involving transaction pur- sale and chase a leasehold estate. Thereafter, Victor Laederich, Marie wife, his Laederich, Morgan and A. joined L. parties de- Plaintiff, fendant. beginning at the trial, dismissed as to de- fendant Barrett. The plaintiff’s court overruled motion to set aside plaintiff’s leave at close nonsuit, taken involuntary favor- judgment entered appeals from the evidence, of defendants. Victor H. Laederich the transfers involves case The S. W. Barrett from W. Barrett and W. W. Laederich Marie ground rental for an annual 99-year lease, providing a S. Orlann of occupied January premises 1914, on bearing $7,200 date of streets, Main building, Ninth and the Delmain known as by what Mrs. G. crippled and Orlann is Mrs. Missouri. City, Kansas leading negotiations up agent in the mother, her acted as her Shore, in the parties All involved lease. acquisition of the Barrett, City who exception of with the in Kansas lived transaction part- Morgan was a Defendant Sedalia, Missouri. banker of was a of in the same Laederich, and had desk (clerk) of employee time There 1923. acquired September, the lease Laederichs The fice. agreed for the lease. upon a trade Barrett Laederichs after, the California, Blender, San Francisco, K. Charles secured Laederich Morgan request, Barrett’s him, and at man” for “straw act as acquainted, Barrett was not Nelson, with whom Edna L. secured Laederich were Miss Nelson and Barrett. party” for as “straw act -24, March Laederichs, under date of acquainted. The the transfer Miss Nelson consideration of assigned the lease to (sub County, Missouri aggregating acres, in Pettis farms;! of two thereon), and indebtedness, trust $40,000 secured deeds of ject to by mortgage by a secured $70,000 indebtedness, evidenced note According Bar Morgan, estate. under on said leasehold back or aggregating $40,000, payable five notes to the rett’s instructions mortgage on Blender, K. and secured second der Charles This transaction was leasehold, were executed Nelson. said *4 Barrett, between the Laederichs and but was of the trade part just County farms was in “plastered on.” The title to Pettis Barrett, conveyed but the par the'farms were the Laederichs holding K. Blender the record title. Charles endorsed the ties en Mr. Laederich. $70,000 note and it delivered to He also evidencing $40,000, dorsed the notes and these delivered Morgan acquiring lease, month paid $75 After Barrett Barrett. ly manage building. and to collect the rents Reading agent Vogrin, advertisement of Mr. estate a real Vogrin City, through Shore Kansas Mrs. called on him. showed her Vogrin building, which it. Delmain she examined. She liked being received, told all about the rents that were acted as and agent plaintiff, for plaintiff, for Barrett and behalf receiving, on Vogrin pur a. for- commission his services. showed her a statement porting- forth the Delmain expenses set income from and .to! building, which,-however, "of duplicate he-retained. She secured a from Mr. Lentell, realtor, statement another up, made accord Laederich, who Mr. from from information obtained ing Lentell, Shore' Vogrin Mrs. with him. had referred listed the Lae called at Laederich, May, in Mrs.-Shore and sometime Messrs, with defendants only had her conversation derich’s office and Morgan. plain foundation of This conversation is the Laederich and testimony reference" Plaintiff’s narrative of her with tiff’s suit. I gentlemen “. . I in thereto, . found two the office reads: and got chair’ Mr. up Laederich Mr. Laederich asked for me’ I Mrs. I told him was Shore Mr. Laederich introduced I Morgan, desk, to Mr. who was the same office another 99- mortgage asked Mr. Laederich if he is the owner of the year building. said, no; on the Delmain He he own lease wasn’t the Blender, mortgage mortgage, er that the of the Mr. owner is mortgage . . . And takes that he handles the for Mr. Blender and acquainted I if care of his him he business. asked is with the ex penses building.- Delmain me, yes; income He told Morgan they got Mr. collects the rents and that have the books the office expenses and he knows all and the income.” She showed Mr. Laederich the statement she from Mr. This secured Lentell. statement, stating building good after ten rented to leases, except ants under the third floor vacant, which was then read: ‘The annual rental $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 mortgage $70,000 a first at $4,000 payable 7%,
per year years for $5,000 years four then per year for four and the years. balance nine Owner will improvements trade lease and ’’ good clear land. J. Lentell. W. The witness testified that Laederich looked over the statement took out his desk other just statements which looked it; like andf comparing them, after said “The statement right is all exception your statement $4,000 calls for payment on the mort- gage going and we $3,000 "decidedthat we’re to collect on-the mort- gages, payments four five, then will commence pay- *5 ments; he a and also made remark expenses as to the on that state- ment, light water, and and he said ‘that power includes also.’ Mr. Morgan looked over the statement and said “The statement is cor- asked) rect.” testimony Plaintiff’s narrative continues: “I made worth. He thought was Mr. Laederieh what he desk for his valuation Morgan at next Mr. reply, but asked no Laederieh $145,000. Then Mr. Morgan said Mr. property. ’ ‘ Mr. Laeder- $145,000. I asked at building worth least was said the bankers he said the building price and ich was sold for if figuring Laederieh said Mr. $35,000.00. After some paid in Sedalia mortgage and cash; $70,000 first $35,000.00 paid the bankers Mr. I $145,000. told up mortgage, which added to $40,000 second leave care and building have take Laederieh the will of.itself and daughter woman crippled my because net income little any money any source put . . . afraid she can’t I am will carry Mr. Laederieh said it able it. and she wouldn’t be a little carry itself and also leave that, do all it would and Yogrin told Laederieh that net income.” Witness informed mortgage, narrative states: $40,000 plaintiff’s her second . n excep- $40,000 paid with the “. . said the was Mr. Laederieh dispute, he be- tion of which is in but a few hundred dollars some straightened right second all then the that would be out lieved I mortgage Morgan if made . . . Mr. me would be released. told making a I building, on this Delmain he believed would be deal good deal.” Laederieh also informed Mrs. Shore the interest would $4,900.00, which, amount amount $3,000 payment, with the would $7,900; $7,900 $9,156, from the and that he then deducted the $1,256. it left net income of According was testimony, to the when the Laederich-Barrett deal To closed, farms. Barrett owed several taxes hundred dollars an this, secure Miss Nelson, approval Barrett, executed assignment blank, assignment Morgan, which was delivered said being acknowledged July Morgan, on held while 1924, collecting he was Barrett, rents for time in October until some November when it was plaintiff. delivered to em- investigation facts made no she testified Shore Mrs. re- Morgan, but, Laederieh Messrs. in the statements braced ultimately purchased the lease representations, lying their mortgage. never She $70,000 first subject Orlann Mrs. closing Bar- the deal. thirty minutes before until about Barrett met as- 8, 1924, and the to October down continued abstract rett’s signment November recorded Orlann was Mrs. lease to plaintiff and delivered to $40,000 in notes The 1924. the transaction Mrs. Shore considered record. mortgage released five months after four or it took some one, important Morgan close it. Laederieh with defendants interview had little the leasehold established Plaintiff’s evidence first deed secured indebtedness equity above trust.
789 Morgan testified income, defendant to net With reference the offered equaled Plaintiff just the income. about disbursements the decorating various expenses painting, for that annual prove build- Delmain necessary operation of the in the supplies kinds of the added to thé items on which, when ing $2,000, amounted $70,000 indebt- the and interest under and installments statement in a deficit. edness, result would petition, in set forth the allegations of fraud
A number of the plaintiff this review as material count, which is in one are not urged thereon, they nor in reliance are contention she acted makes no restricted, remanding cause. Thus grounds reversing the as for charged deceit in that a substance, fraud and plaintiff’s petition, in (the the defendants part the of Barrett and conspiracy existed on Morgan) aforesaid defraud in the excution of the Laederichs and exchange by purported leasehold Laederichs sale or of said the for Barrett; (or party Nelson, that Barrett Miss who acted as straw Barrett) leasehold; never the owner that the been trust, $40,000 indebtedness, deeds of secured first second exe- respectively, genuine, were not but had been the leasehold giving purpose appearance for a false cuted of value leasehold; leasehold, price paid and that the value Barrett, leasehold leasehold and the net annual income from the misrepresented plaintiff. defendants to pass position Defendants contend that this court is in no sufficiency issue of the make submissible evidence to plaintiff presented ease all for the reason not the evidence has given only at trial portion but her version of what large evidence shows. Plaintiff’s portion abstract sets forth a appellant evidence narrative form. contends rule, The where an respondent did not make a submissible ease, that the entire evi dence must be v. 64 appeal City, set out on Mo. Kansas [McCarroll 286; 283, Crohn v. Modern W. 145 129 Am., App. 158, 162, Mo. 1070; S. W. 1069, Deering 618, & 93 Hannah, App. Co. v. Mo. 67 714; S. W. v. Am., 666, Gooden Modern W. of 194 App. Mo. 189 W. 675, 394, S. interpreted pre is to be as to so 397(8)] appellant setting clude an forth the evidence narrative form Hanebrink, Mil. Co. v. 247 212, 152 W. [Sessinghaus Mo. 217, 354, 355(1); Vandeventer v. Goss, 239, 245, 610, 190 Mo. 88 S. W. 611; Co., Letts Wabash 131 App. 270, Railroad Mo. 111 S. 281, 138,W. when the substance of all the evidence narra 141] tive Highway the witnesses v. State 227 Comm., App. Mo. [Euler (2d) 719, 722],
An appellant’s printed abstract set should forth so much of evidence as is necessary complete understanding specific ato presented issues therefrom, by questions determinative either appealing form. is not a case where in narrative This
answers or Here make a case. contends failed to snbmissible defendant presented by .plaintiff appeals. If the evidence establishes accordingly; be case, unless, the issue ruled should a submissible showing be not cor- make that such evidence course, defendants rectly printed plaintiff’s stated in abstract. *7 overruling coiisidering the trial in In action of the court involuntary nonsuit, with set aside the taken motion plaintiff’s evidence, in to leave,, facts plaintiff is entitled to have the adduced gether however, therefrom forced (not, all reasonable inferences Ry. City Co., v. Kansas 257 Mo. or violent inferences So. [Williams 788, taken as v. Kline’s 112, 165 S. W. true 794(1)]), 87, [Bandol (2d) 746, 757(1), 322 18 Inc., 500, Mo. S. W. 505(1)]. testimony Victor Laeder The uneontradicted of defendants appearing Morgan, depositions A. L. from their ich and offered on exchange plaintiff, by behalf of established of the leasehold in Bar equity Barrett consideration for the Laederichs to said County (subject in rett two Pettis farms to an indebtedness of $40,000, by farms) secured deeds of trust said evi $70,000, by a denced note secured a first deed of said trust on leasehold. may testimony is this successfully Plaintiff bound not invite disregard court to it v. (Mo. this Western Tel. Union Co. [Green 58 App.), (2d) 772, 773(4) ; S. W. McLain v. Atlas Assurance Co. (Mo. App.), (2d) 853(5) 67 W. 849, cited; and cases Polkowski v. St. Louis (Mo. (2d) Public Service Co. 68 App.), 884, S. W. 888(5) predicate conspiracy cases to defraud on that cited], portion of said between transaction Laederichs and Barrett standing unimpeached in this Mr. record. Laederich foreclosed the July 28, deed of trust 1927. It also was that follows there support charge no plaintiff’s substantial evidence to that this fore part original alleged closure was a conspiracy, and that plaintiff transactions between and defendants in connection with the foreclosure alleged causal connection with the fraud leading purchase of the plaintiff. leasehold This failure part plaintiff prove conspiracy is not destructive of alleged cause of action. plaintiff’s The essence of cause of action Amy fraud. one or more persons of several participating in the perpetration of an actionable fraud becomes a ir fraud-feasor, and, respective proof all, of a part concert action on the of some or is liable Thompson, v. 336 Mo. (2d) 357, [Becker 361(3), and cases if party in position is defrauded cited] maintain alleged. for action the fraud that, recognized
It is well is presumed, fraud not but must be proved, and upon party the burden rests charging the fraud. charge fraud,” McCaw a discussion of the postulate “As a may 44(2) “we 249 S. W. states: 401, 413, Mo. O’Malley, 298 the burden representations, that an action (cid:127)observe false that .herein) by proof establish upon (defendant it, upon he relied only representation, there but false ordinary prudence,’ and such reliance ‘was act of upon influenced relied representations prudently such thus n ., damage. . . to his foregoing that— “It follows from the “ pro- prudence sufficient for full ordinary ‘Where care and are Therefore, duty tection, party to make use them. it is the fact, and regarding if matters representations false are made both knowledge equally are hand available to the means of at resorting them, sees fit to trust parties, party, and the instead him, is to himself the hands of one interest it whose mislead own placed by he his law, him has been general, will leave where . imprudent confidence.’ . . by the may them facts, knows the know
“Where the vendee ordinary opinions he form his own prudence, exercise of must *8 judgment. act on . . . his own ground false of equity
“Neither law nor will afford relief on the fails equal information, representation with means of to one who to resort such means. ...” to n ’Malley, v. O are propositions supra, The in McCaw announced by authority, may with supported citations which be consulted profit. Maupin (Mo. & also v. Provident Life Accident Ins. Co. [See (2d) 75 App.), 593, S. W. 595(3-6).]
A any fraud failure to establish one of the essential elements of recovery. (Mo.), 85, is fatal v. Hill 178 W. to S. 86(1).] [Dillon 385; Slaughter’s (80 S.) 383, Admr. 13 Gerson, v. Wall. U. 379, 20 L. 627, 628, 629, .equity Ed. “A court will states: not under take, any law, more than party a court of to relieve a from con the sequences hav of his own If, inattention and carelessness. ... ing eyes, he will directly them, not see before where con matters no cealment is attempted, made or favorable he will not be' entitled to complains Consideration when that he has -from his own- he suffered voluntary blindness, and has been misled in the overconfidence 385:) (And statements of another.” l. c. “Where the means information equally open at hand and parties, are to both and no attempted, language concealment is made is, or the' cases- misrepresentation ground equity furnishes no for a court of refuse parties. neglect the contract enforce The purchaser to himself, avail cases, in all -such -infor the means of mation, whether attributable indolence credulity, to his from: takes just him all claim for relief.” also See Missouri Pac. Conklin v.
792 (2d) (this 55 S. W. 308 court 738, 306, Mo. Co., 734, 331 Railroad long gone way in its efforts has stating, that while-it en banc “ against foolishly credulous; machi- . as . . ‘the
protect
’
sight
...
have
designedly wicked,
we
never lost
nations of
protect
who,
will
those
courts
principle
);
.
.
so,
proect
.
will not
themselves
opportunity
full
to do
(2d)
329
Co.,
341,
Lumber
44 S. W.
350,
Ganahl
Mo.
v.
Brenneeke
all the
631(2) (stating:
respondent’s duty,
“In view of
under
627,
give
his
protection
attention
circumstances, to
reasonable
which
interests,
representations
we
not think that the false’
own
do
agent
says
claim
made can
have been such
he
said to
as
bev
reasonably
investiga-
forego inquiry
calculated to induce him to
rely
whom
wholly
solely upon
of a man
tion
statements
day”) ; Bragg
he
know
v.
did not
and had never seen before that
Packing
1012,
Co.,
App. 600, 604,
205 Mo.
226 W.
Kirksville
S.
1014, (stating:. “A vital part
a case
show
of this nature
fraudulently imposed
was
upon;
astray,
that he was led
informing himself”);
knew
no-better and had
means of
Corn-
wall v.
Co.,
383,
McFarland Real Estate
150
51 W.
377,
384,
Mo.
(stating:
738
736,
The evidence
property
open
“showed
was
might
observation and that
have
knew,
either
he
[plaintiff]
known,
“Moreover,
its money
both
.
.
.
and rental value.”
personal
could have made
cov-
examination of the
mortgage
ered
had he desired
his
to do
and thus
so,
formed
judgment
own
its value,
have
also
whether was
learned
it-
Nothing
rented or not.
prevent
done
defendant to
him
doing,
so
and, if
rely upon
he
representations
chose to
defendant’s
with respect to
cash
its
and rental value rather
so,
than
it
do
his
fault”); Higgins
own
194,
v.
Car Co.,
American
324 Mo. (2d)
1043, 1044; Morgan County
Halderman,
Coal Co.
254 Mo.
Seq.,
et
strength purchase plaintiff interview with them would of her testimony she have done so in view of her leasehold, nor could well during negotiations her folks” subse- that she had to “consult quent “big deal,” If she interview. considered it a she legal justification ex- testified, at a to understand what we are loss implicit sought be the continued reliance here placing isted for strangers first upon in made total their Shown statements meeting]' never interview re- "She once returned to defendants or quest verification, any manner, of them the statements she agents attributes them. As we view the record and her rely to; did, upon representations they testified if or, did not result of mat- such reliance was the indolence and inattention may hand'; ter in not recover. urges tendency
Plaintiff
of modern decisions
the'
to condemn
falsehood,
fraud-feasor
rather than the
victim.
credulity of his
distinguish
The facts in this case
it from the cases wherein such a
tendency
Parties,
has been manifested. The action sounds in tort.
juris,
possession
sui
in full
of their
faculties and unrestrained
action,
upon
their
when
about
enter
a business transaction should
the law or
look to
the courts as a child
parent
does to its
guardian.
self-reliance,
ward to its
The exercise of
sense,
common
ordinary diligence
prudence
expected
is to be
in such trans-
adults,
indolence,
actions between
listlessness,
indifference and
credulity
encouraged.
unwarranted
should not be
Common ex-
perience
us
upon
teaches
one looks with favor
his
property;
own
gain prompts trading;
that a desire for
and that attention to busi-
inquiry
(rather
after)
before
than
ness
more
trade affords the
may
protection.
desiring
certain
dispose
While'one
temptation
be
thereto,
under
to make misrepresentations
respect
inquiry
one
finds on
who
that he
contract,
cannot
his
avbid
en-
foolishly
tered into
on
his mistaken judgment,
other than
proof
misrepresentation by
subject
the other is
to the
ac-
same
tivating temptation.
justice
Courts of
are not warranted in assum-
ing
any and all
litigant
under
circumstances that a
asserting fraud
(having
proof)
asserting
burden of
truth,
therefore,
and,
affairs,
they
stand in
parentis,
guardian
should
loco
or as a
over the
men,
encourage
of such
such claims. To
places
unjus-
do so
premium indiscretion,
tifiable
unreasonable inattention to business
expense
at the
indolence
exercise
prudence, ordinary
diligence in business'
judgment.
transactions and business
distinguish
The facts in the instant case
it from the cases of Mon
santo Chemical
Works
American Z. L. & S.
(Mo.),
Co.
253 S.
W. 1006, 1008;
v. Belinder,
Goar
213 Mo. App.
339, 249
S. W.
980;
Flack v. Wahl,
795 Boyer, 869(7); Finke v. (2d) 867, W. (Mo.), Miller 48 S. Luikart v. cases and other 1251(4), (2d) 372, 375(5), 56 S. W. 1242, Mo. 331 eases the necessary discuss by not plaintiff. deem it ¥e relied on individually. was, not either the Analyzing reveals case them1 apparent it was interposed; or that here tried below on the defense of by was the result from the evidence action had been induced not information of the means misrepresentation; the or Among the salient more equally open to both parties. at hand or That the distinguishing'such are: from the instant case facts eases That misrepresentee. misrepresentor upon the urged the transaction facts (or law, relation in under the equivalent, a confidential its involved) misrepresentor posses existed. That the had exclusive misrepresentee sion the of the facts refused to make disclosure to request. misrepresentee upon hampered, That the or restrained was investigate from or with in his or efforts to opportunities interfered ascertain facts reason his the the of distance misrepresentations interposed involved or obstacles further misrepresentor. misrepresentee ignorant the That the inex was perienced disability subject or under a to the matter' with reference misrepresentee mis the transaction. the the That disclosed to representor relying representations was Judd upon that he the made. Walker, 215 248 313, Head, v. Mo. 114 S. W. and Stonemets v. 979, 243, light Mo. 154 108, peculiar' S. W. when read the of the facts respective the against cases not here reached. are the conclusion Bragg Packing the observations in 205 Mo. Co., v. Kirksville [See App. l. c. 226 608, S. W. l. c. 1015, which These' we need not repeat.] recognize obligation other cases imposes part the law the on the misrepresentee the to exercise exer such care and attention as is cised ordinarily prudent men in like businss transactions.
Adverting
specifically
alleged:
more
to the fraud
Statements
ordinarily
as to the value
not
do'
constitute fraud.
Edison,
v.
ground. Having might reached the conclusion suc cessfully allege fraud with misrepresentations to the reference value, position she is avail herself like misrepresentations that, as to cost. is an There entire absence trans of evidence action with any basis- other than value op leasehold. Had advantage she taken ample unrestricted portunities available to property, ascertain could value of she may relied on what have Barrett it. *12 paid not have for [See, connection, this McCall v. 298 249 O’Malley, 401, 415(4), Mo. 41,W. 45(6).] theory was no that on the there proceeds petition Plaintiff’s alleged of misrepresentations leasehold, and from the
net income facts) it of that (detailed in the statement Laederich defendant The actionable. net income was leave a little itself and carry would cer gross rental and annual showed in evidence exhibit offered leaving $9,156. itemized; net of balance expenses, tain items theory upon the that Laederich’s Although petition proceeds Mrs. $9,156, annual income was effect the net was to the statement in annual explained that interest and the to her he- Shore testified met; after mortgage would have to be first stallments $4,000 $3,000 for installments from four reducing annual $5,000 annually) be there would (after which would it payments five representation con obvious, if this be $1,256. think We it be left management engaged prop in the of real fact, sidered one one buildings consisting residences, store hotel erty apartments, representation upon which the was based the exhibit items depreciation, and such allowances whatever included no cleaning, supplies all decorating, painting, window kinds as having experience of filter one water service. To repairs and expense these items of upon her the addition of agents, total or more (some prove offered would which annually) apparent there would be annual net it should have been interest, installments due on payment of income after the think this conclusion inevitable do we trust. first deed of Especially fact for four or five'months giving to ’-the upon consideration agents the exhibit before them and her had plaintiff and must have discovered that any degree exercise of attention neither expense. Defendants exhibit did include these items agents any fraud brought .plaintiff practiced nor to bear during refrain from an examination period this to induce them to as informing prevented themselves statement or which them forth. set the extent of the information therein truthfulness or they they given attention, ample Had some reasonable have statement, they opportunity, must do, unrestricted embraced; this facts there extent of the the true discovered eyes. their permitted to close they should not be obvious result judgment case, the should be af- the instant Under the facts of CC., Westhues, concur. Cooley and firmed. It is so ordered. foregoing opinion C., adopt-
PER Boi-iling, CURIAM: The judges opinion All the concur. ed as the of the court. Plaintiff-Respondent, v. Albert William Fleischaker, Fleischaker, Defendant-Appellant, Fleischaker, Emil Ruth Fleischaker, Meyerhardt De- Iris Jacob Fleischaker, Fleischaker fendants-Respondents. at the Relation of Relator, Albert
State Missouri Fleischaker, Perry T. J. Walter E. Bailey, Judges Allen, Smith, Robert Springfield Appeals. (2d) Court of 169. Two,
Division March 1936. *13 Tyler, Mertsheimer & Gossett, & O’Donnell Ellis, Dietrich appellant. Grayston M. Charles