202 Mo. 173 | Mo. | 1907
This is an action to recover $1,350, on the ground of an alleged fraud. It was brought to
Inasmuch as the ground for certifying the cause to this court is, that the plaintiff was permitted to recover upon a cause of action different from that alleged in the petition, and wholly failed to- sustain the cause of action stated in the petition, we deem it best to set forth the petition in full:
“Simon Van Baalte, plaintiff herein, for cause of action against Jacob I. Epstein, defendant herein, states:
“ That the defendant, at the time hereinafter mentioned, and for a long time prior thereto has Ipeen engaged in the business of real estate and financial agent
“That on or about the —--day of---, 1898, the defendant, while acting as the agent of plaintiff, rented the said house and lot to one Dr. Benjamin J. Tomlin as his residence, and at the time of said rental the defendant informed the plaintiff that said Tomlin was a prospective purchaser of the said house and lot, and that he, the defendant, felt quite certain that he
“That on the 20th day of November, 1899', the defendant in pursuance of his said plan and scheme to defraud the plaintiff,induced said-Tomlin to purchase said La Salle street property and to pay therefor the sum of five thousand, seven-hundred and fifty dollars, and caused and procured said Augustus M. Wood on said 20th day of November, 18991, to convey said- La Salle street property to said Dr. Tomlin, but that the consideration therefor was paid to and' received by the defendant. Wherefore, plaintiff says that the defendant has received and has the sum of tMrteen hundred and fifty dollars,- which in equity, and in good conscience and of right belongs to the plaintiff, and for which the defendant should account to the plaintiff. Plaintiff further states that he did not know, and the defendant concealed from him, the fact that said Wood held the title to said La Salle street property-in trust for the defendant. Wherefore, plaintiff prays judgment against the defendant for said sum of tMrteen hundred and fifty dollars, together with interest and cost of suit.”
Defendant’s answer was a general denial.
“Plaintiff and defendant had been intimate' for many years; defendant for about eig’ht years had been in the real estate business in St. Louis, and during that time had acted as agent of plaintiff, buying and selling property for him and negotiating loans for him, and enjoyed Ms full confidence. In September, 1898-, plaintiff acquired a house known as No. 1821 La Salle street in tbe city of St. Louis, and being desirous of its disposal placed it in charge of defendant for rent and sale and fixed the price at $5,500. In February, 1899',
‘ ‘ The legal title of record to the. Pairmount avenue lot stood in the name of Lewis James, a negro porter in the musical conservatory of which Epstein’s brother was co-proprietor. In consummation of the transaction, on October 23rd, Van Raalte conveyed his La Salle street house as requested to Augustus M. Wood, also a ‘ straw man, ’ for an expressed consideration of $6,500. Without Van Raalte’s knowledge Wood had executed to Theodore Hemmelmann, Jr., as trustee for W. H. Bush, a deed of trust for $3,500 on the La Salle street house, and the money thus procured was paid to Epstein and by him delivered to Van Raalte, together with a conveyance from Lewis James to Van Raalte on the Pairmount avenue property, subject to the existing deed of trust for $1,500. On November 20, 1890’, Epstein sold the La Salle street house to Tomlin for $5,-750. Epstein further testified that the Fairmount avenue lot was owned jointly by himself and Harris, with the right accorded the latter to purchase the whole at a fixed rate, and that he, Epstein, had accepted a half interest in the'La Salle street house in lieu of the like interest in the Pairmount avenue lot, and title to the La Salle street house was taken in the name of Wood for the joint benefit of himself and Harris and the differ
In the above statement we have availed ourselves of the very admirable summary of the testimony which appears in the opinion of Judge Rbyburn in the St. Louis Court of Appeals.
I. The proposition which the counsel for the defendant urges at great length is that the essential alle*gation in the plaintiff’s petition is that defendant ‘ ‘having then made arrangements with said Tomlin to purchase the same at a price and sum far in excess of said sum of $4,500, caused one Ellis Harris to call upon plaintiff and to pretend to be the agent for the sale or exchange of the Pairmount avenue property for plaintiff’s La Salle street property,” and “not knowing the defendant had already made arrangements and contracted with the said Tomlin to purchase said La Salle street house on or about October 18, 1899, agreed with said Harris to make said exchange. ’ ’ And that because this allegation in .the petition was not sustained by proof, there was no substantial evidence to support the plaintiff’s cause of action and the judgment should be reversed without a remanding. It is true that the pe
So that, without the two allegations as to a prearrangement between defendant and Dr. Tomlin for the sale of the La Salle street lot, there remain ample averments in the petition charging the defendant with a breach of his duty to plaintiff in failing to exercise reasonable diligence to carry out his instructions from the plaintiff for the sale of the In Salle street property and then, by concealing the truth from the plaintiff as to defendant’s relation to theFairmount avenue property, manipulating a scheme whereby he acquired plaintiff’s La Salle street property at less than its real value. “The paramount and vital principle of all agencies is good faith, for without it the relation of principal and agent could not well exist. So sedulously is this principle guarded that all departures from it are esteemed frauds upon the confidence bestowed. An. agent therefore will not be allowed to put himself in a position antagonistic to his principal, or speculate in the subject of the agency.” [1 Am. and Eng. Ency. Law (2 Ed.), 1071.]
In Barthelmew v. Leech, 7 Watts 172, it was held that ah agent having charge of wild lands, could not become a purchaser thereof at a sale for taxes without a previous and explicit renunciation of his agency. In that case, C. J. Gibson observed: “The most open, ingenuous and disinterested dealing is required of a confidential agent while he consents to act as such; and there must be an unambiguous relinquishment of his agency before he can acquire an interest in the subject
The doctrine that trustees, agents, administrators, guardians, attorneys or others whose connection with any person is such as to establish a confidential relation between them concerning his property or give them special knowledge or opportunities in regard to it, cannot without, and often with, his full knowledge and consent, become the purchaser of such property, is well settled in the jurisprudence of England and the United State, and is affirmatively established as the settled law of this State. [Thornton v. Irwin, 43 Mo. l. c. 163; Boardman v. Florez, 37 Mo. 562.]
In the leading case of Fox v. Mackreth, 2 Bro. C. C. 400, Lord Chancellor Thuklow said: “If a trustee, though strictly honest, buys an estate himself, and then sells it for more, according to the rules of a court of equity from general policy, and not from any peculiar imputation of fraud, he should not be permitted to sell to himself, but should remain a trustee for all intents and purposes.” In that case having sold the property at a higher advanced price he was decreed a trustee as to the sums produced at the second sale, for the original vendor. [Marshall v. Ferguson, 94 Mo. App. 175; Palmer v. Pirson, 24 N. Y. Supp. 333.] The gist of the action at law for such a fraud is the fraudulent producing of a false impression upon the mind of the principal by the agent, and if this result is accomplished, it ■ is unimportant whether the means of accomplishing it are words or acts of the defendant, or his concealment or suppression of material facts not equally within the knowledge or reach of the principal. [Stewart v. Wyoming Ranche Co., 128 U. S. l. c. 388.]
That the petition in this case stated a cause of action within the foregoing principles governing the rela
This brings us to the contention of the defendant that the decision in the Court of Appeals was in conflict with Huston v. Tyler, 140 Mo. 252, and other similar cases of similar import, by this court. But an examination of Huston v. Tyler will show that in that case the petition counted upon a specific contract on the part of the defendant to procure a note signed by four persons, and it was held in that ease that plaintiff having declared upon an express contract or warranty as to the genuineness of certain signatures, he was thereby precluded from relying on an implied warranty to the same effect, and that the allegation as to the express warranty was not mere matter of inducement but constituted the gravamen of plaintiff’s action, and there being no proof of it, therefore, he was not entitled to recover in that case. In this case the allegation as to the prearrangement of defendant with Tomlin may be disregarded as surplusage and still a good and sufficient cause of action remains specifically alleged, which was not the case in Huston v. Tyler. "We find no conflict whatever in either of the decisions of the Court of Appeals in this case with what was said in Huston v. Tyler, or in any other of the authorities relied upon by the defendant. It must follow, there
II. It is next insisted that, there was no evidence tending to show that the defendant was the agent of the plaintiff at the time of the sale to Harris. Without recapitulating the testimony upon this point, it must suffice to say that in our opinion there was abundant evidence that the defendant had become, the agent of plaintiff for the sale of his La Salle street property in February, 1899, and that such agency continued and had not been terminated by the plaintiff up to the date of the consummation of the trade; and that there had never been an unambiguous. relinquishment of his agency by the defendant with that full and candid disclosure of defendant’s relation to the Fairmount avenue property, which through “straw men” he was unloading on plaintiff in exchange for plaintiff’s lot. Nor does it change the rights of the plaintiff that there was some evidence tending to prove that plaintiff was acting .in his own behalf in the trade with Harris when all the evidence of concealment of defendant’s connection and ownership of the Fairmout avenue property is taken into consideration, and of Harris’s relation to the defendant. These were questions of fact for the jury under the instructions of the court.
III. It was urged in the Court of Appeals and the insistence is renewed in this court that the facts stated made this a suit in equity, triable before a chancellor alone, and the plaintiff was, not entitled to a jury and that the court erred in submitting the
It has been often stated by the courts of this country that in cases arising out of fraud, the courts of law and equity have concurrent jurisdiction. Courts of equity by reason of their more extensive powers may and frequently do adjudicate matters of fraud, which courts of law are incompetent to try, and to that extent, at least, may be said to exercise an exclusive jurisdiction, but the jurisdiction of courts of law to grant relief by way of damages growing out of fraudulent transactions, is a very ancient one, and where full and adequate relief may be administered in a court of law on account of fraud, the injured party may bring his action in a court of law. This has been the rule in this State since the case of West v.Wayne, 3 Mo. 16; McFarland v. Railroad, 125 Mo. 253. In this case as tho defendant had by his own action caused plaintiff’s lot to be conveyed to an innocent purchaser for value and without notice, plaintiff was not in a position to ask for a rescission of the contract, or to set aside the sale, and could only be compensated by a money judgment for the amount of the injury he had suffered by the alleged fraudulent acts of the defendant, and under the plain command of the statute the cause was triable by a jury.
IV. It is also contended that the damages allowed
V. Finally, it is asserted that the instructions were inconsistent and erroneous. This assignment harks back to the original contention that the cause of action alleged was not proved. As we have already disposed of that insistence, it is unnecessary to say more on that subject. As to the objection that the instructions fix an improper measure of damages, we find
Upon a careful review and examination of all the grounds alleged for the reversal of this cause, we find no reversible error and the judgment of the circuit court is affirmed.