*1 BLAKELEY, Appellant, Lenah L. Bradley,

Harold S. S. BRADLEY: Harold Inc., Corporation, Vera J. Hanlon, Respondents.

No. 44519.

Supreme Court Missouri.

Division No. 1.

July 11, 1955. Rehearing Transfer

Motion for Sept. 12, Banc Court en Denied Raleigh Gough

W. and Claude McFar- land, City, appellant. Kansas Stanley Garrity, Caldwell, Downing, Eastin, Garrity City, & Kansas for re- spondents Harold S. and Harold S. Inc., Corporation. Bradley, *2 City. (This the ad- case was held under HYDE', judge. husband, who 1954.) visement until Her land sale of to Action rescind Jackson dealer, was a real estate died in Their 1930. executed County to cancel deed and was daughter was unsound mind be- rescission plaintiff. court denied- The a kept in Plaintiff owned an institution. but attempting to rescind delay in cause of larger (107 the 53 acres') tract of which real estate inequitable for it found part, and acres herein involved was a paid of $265 commission agent' to retain Bradley defendant sell acres the south 40 judgment and entered the sale making for years Bradley about two lived before. against plaintiff that amount for in favor of mainly part county of the and dealt defendant, taxed with costs corporate county sale real estate. made a ap- has Plaintiff defendants. against all $4,500 but Dugan Wm. acres for to entire transaction claiming the pealed, title plaintiff good a give not able to be set aside. should daughter’s Plain- because of her condition. lawyers (including her tiff had her real estate claim is that Plaintiff’s partition suit which case) bring in this pur- her, employed agent, Thereafter, in purchased that 40 acres. taken the title was and that chaser to a sale acres made as a straw employee’s mother name of paid $4,750. Teefey'for (Plaintiff had agent. The of. the the -benefit first a commission of on the $250 tract 53 acre involved complete.) sale which she could not Then Highway 71 south S. side U. west par- plaintiff lawyers bring had her another boundary City. southern The Kansas suit, acres involving remaining tition City prop- at then 85th Street city properties, get of her and some land (Defendants’ erty brief is at Street. 103rd them. Brad- the title so that she could sell says Kansas the area has- been annexed to ley suit that the value of the testified City trial.) Of sale since the The contract plaintiff per acre and acres was $100 July plaintiff’s deed- 1944and was dated purchased $6,700. it Plaintiff sold about September 13, This' delivered ' part Mr. five acres of the northeast -21, 1947. March action' was commenced was¡ Rooney, operating who a tavern and attempt- states “that said The decree court’s (cid:127) filling station on it.. Plaintiff intended to- delayed'; and- long too ed rescission part retain the of the tract on the east side equitably be purchaser could not tq of Highway 71 but wanted sell the re- quo; hut the court finds placed-in status maining 53 acres on the west side Har^, for.defendant, equitable be Highway and talked to it. about Inc., to retain the Two Bradley, old B. Rooney Plaintiff an offer from of $150 * * * Sixty-five re- Dollars Hundred per adjoining for ten acres his tract acre making sale as a commission ceived and an offer of 'from Walter Mr. shown, property.” As hereinafter of said Page (another real estate dealer) purchaser actual regardless of whether the July Bradley’s whole acres. In at employee, agent, or estate .real office, price agreed $5,300; mother, Hanlon.and her. defendant-Vera J. signed a contract to it for that sell amount’. of the facts was if and fair disclosure full sharp There is in the conflict evidence court must plaintiff (as the not made to making to what occurred in that contract. was entitled found) then have Clearly, the she acted in time. if rescind According plaintiff, she talked to hot court’s decision was the trial basis of dividing the about land into smaller had no rescission survey He tracts and she had made. lost that it was unreasonable instead might later thought at first it done but delay. lay advisable because of the Thereafter, office, land. in his Brad Plaintiff, 80 at the time who was (cid:127) buyer ley both in her he had handed her real estate told trial up signature with the County all drawn City outside contract Kansas Jackson go asked she did Hanlon to look on.it. at “Mary C.-Reese” land; so, Rooney:but that after part had done selling buy of it if was told that Mrs. take Reese would Reese wouldn’t *3 said Mrs. the it. signed Mrs. signed Plaintiff Hanlon of it all. name Mrs. get couldn’t she lawyers. plaintiff to the copy her Reese contract but said was and took contract present county would at the time. Plaintiff learned that denied that When any of there was north side ever conversation her along in not build road stated,in presence to expected (and indicate Mrs. Reese was tract as conr an Mrs. negotiations about Hanlon’s mother. also had tract) there This evidence property. of four through the tavern other transactions handled easement by by including finally convey- settled afterwards which matter was to that ances strip for access were made to or foot Mrs. Reese. the deed she Plaintiff said part the 53 acres. apparent It specific seems from the not meet Bradley why could asked she town; findings the court made and the result out of buyer she lived and he said reached, that defendants’ town, version was not says, she he comes to “but when she accepted. It apparent likewise seems from Mrs. Manor.” stopped at the Rockhill plaintiff whole time, record that was never Reese, years age at told who Mrs. Reese was Hanlon, or where she who mother of Mrs. her, lived. The deed by plain executed office, her name Bradley’s and employed in tiff, grantee states the “Mary to be by Mrs. C. Reese the contract signed been had County, Missouri.” This same had seen Mrs. Plaintiff said Hanlon. Jackson residence is shown on deeds to or from her her not know office but did Hanlon subsequent the other transactions. The The deal was closed was. name or who she first 13, information to office, September lawyers’ mother, was Mrs. definitely Hanlon’s previously been shown 1944, papers having , record, the- was in a Reese to 1946- Bradley’s office for Mrs. sent to letter sending signed by a check company’s sign'. Bradley Mrs. Han- delivered lon for principal the interest $1,560 ($1,800 check for less commission then due. Even that letter did with not adjustments) tax on which was marked show actual Reese, “Payment residence Mrs. but indicated Reese Escrow Acct.”. He also she had a City address, Kansas $3,500 and did signed note and d'elivered trust deed show that Mrs. Hanlon by-Mrs.. Reese; had connection the note providing for Bradley Company. with the This payments letter and February, interest on two following it were on blank stationery. 10th August year. 10th of each The The rule that a broker employed deed from to Mrs. to sell Reese was de property cannot sell to himself livered to extends also and recorded. relatives, or near employees previously Mrs. Reese had Curotto v. executed deed Hammack, 457, property, Mrs. this S.W.2d Hanlon for A.L.R.2d 1307; annotation never 26 A.L.R.2d recorded. Mrs. died be Reese C.J.S., Brokers, fore the trial page of this case and Hanlon, Am. § heir, her sole Sec. Restatement Agency, inherited her property. Jur. Sec. as to agents selling for their own According to Bradley Hanlon, and Mrs. benefit see Utlaut v. Glick Co., Real Estate price fixed a Mo.Sup., for the 53 246 S.W.2d 760 and cases cited. acres, office, while in his and he said to Mrs. This rule should be especially applicable in Hanlon presence in the plaintiff: this “Do case where testimony you your think mother that, would be paid interested since he Mrs. Planlon very in buying piece of property?” They salary, small got if he a chance to make her that, said after further discussion plain- money some on a deal he did (Mrs. so. presence, tiff’s Mrs. Hanlon said would Hanlon said she used her money sh.e mother’s talk to her mother about it. Mrs. “seeing that if we could make a little lived Wellsville, Kansas, it, if an in, investment came I was office, money conveyed use the we could land to a in the

there Mr. the consent of substantial wife had a for investments good.”) interest. times, Furthermore, Hanlon at all that Mrs. explanation Defendants' owner, the 53 holding a deed an actual kept large Reese was afraid of banks and mother. Thus it made acres cash, although amounts in did have plaintiff’s right of relief immaterial small bank account in Wellsville and actual in whether any money *4 never lost in bank failures. transaction. in terest Mrs. Hanlon said her mother had received $25,000 explanation more than bachelor brothers did not convince from Defendants’ Colorado, certainly far in no from who died but there were and trial court corroborating when she in evidence Mrs. Reese was 89 records offered convincing. testimony finally stricken as and when and this was was She deaf 1950. in died hearsay. Bradley only gave said he went to Wellsville she taken deposition was Hanlon, $7,300 from got with in bills concerning the Mrs. questions answers such it; receipt suggested gave her Mrs. Reese and for money had as of amount any However, yet of stat- he said there never was a record Hanlon. by Mrs. to her money, was with this the kind to what done prompting that she owned without ed responsibili- for which he lived and also had thus assumed where she in Wellsville house ty. testimony According of both lots there. Mrs. town some Hanlon, and Mrs. Reese’s a farm of Mrs. also owned Hanlon and Mrs. part money (they $10,000) was was of said more Kansas which acres located kept Bradley’s in one drawer of and The farm and the safe Mr. Reese. of the estate kept company money property in in another for traded lots were drawer; and when a deal was made involv- County. Mr. This deeded to Jackson Reese, ing simply conveyed Mrs. Mrs. Hanlon a life and Hanlon and Mrs. take-money put it in (Mr. out of one drawer and Reese. Hanlon died Mrs. estate to other; but no property for there was record made was sold 1943.) This such transactions. a mortgage a note of de- $4,219.60 cash ledger produced proceeds tailed sheet was part were used to show $1,850; previous place. disposing the items of deal When the purchase another traded, property subject to the for which Mrs. Reese Mrs. Kansas farm farm, although Hanlon traded their Kansas signed mortgage $1,500 made a Hanlon, money this transaction involved much Mrs. less and Mr. and Mrs. Reese than the other later ones. This sheet also interest. In 1943 Mrs. providing" for 10% payments personal property showed and income on the 53 sold Hanlon also testimony most acres. Defendants’ was that Mrs. to her husband used belonged give mortgage Reese did not want to a on proceeds buy an automobile. money the 53 acres because she had much enough so have been there could While persuaded on hand and was so do with transactions to make the left from these difficulty great because insisted on a plaintiff on the $1,800 cash mortgage payments give which would year, defendants claim that the next acres annuity period deals; years. her an over of ten other handled all the four Nevertheless, pre- title, provided took with her note in which she later own larger much any These involved money. payment of all future installments at Furthermore, them the seller re- May 1946, In one of amounts. time. Company check for mortgage $13,000, Reese executed re- ceived principal $10,085.85; payments in another check quiring semi-annual mortgage, $650, another for a given later deeded to the in which Mrs. Reese executed and his $21,000 deal wife interested; and deed of trust and Mrs. R'eese $13,000 note and later were car- also “Fraud, S.W.2d 765 and like years cases cited. mortgage ried a farm) on fact, may other cir (the Kansas be established asset estate per cent. cumstantial was ten evidence. There are circum which the interest rate stances which recognized have come to be as to say the evidence Defendants badges fraud, as indicia or one of which transactions, subsequent in which may prove fraud, circumstances alone title, and did “was remote Reese took fraud, may warrant an inference of They fact.” prove single issue of tend especially where is a concurrence there relevancy evidence lacks Bank several fraud.” of New indicia inter of res the rule “under also inadmissible Briggs, Cambria v. 361 Mo. S.W.2d acta”; between thing “a done alias Herrmann, Castorina 340 Mo. They argue that is not admissible. Goldman, others” 104 S.W.2d Hendrix v. it claimed “in transactions is none of these Mo.Sup., Certainly, S.W.2d indirectly, Bradley, directly became stated, unusual methods considered with *5 purchaser property involved.” relationship parties, age con fact certainly overlook the Defendants Reese, her dition concealment of of Mrs. that, in the transaction which- Reese Mrs. apparent attempts make identity, and the to con mortgage, executed did seem to be for a different transactions vey the land to in which them, purpose actually than made of the use Bradley and his wife a substantial had obviously by taken would warrant the view interest; plaintiff’s and also claim that court; that the view we the trial is Reese awas straw all for take of the evidence. We them. think evidence was rele very convincing vant and to show that Mrs. Whether was acting party; especially Reese act did as straw employee so or himself Mrs. Hanlon or explanation in view of defendants’ lame (who Mrs. Hanlon and her mother had subsequent involving these transactions previously together) kept large currency claims of sums so; with to duty a violation of do source, satisfactory explanation out its (as act and if he did so court must have acquisition use, without records of its plaintiff’s did) knowledge found he without consent, and claimed to be an handled such unusual then contract was voidable way (both for an investor and real her estate at election. “The reason this rule corporation) complete person toas all such trans is employing that a broker to by moving currency negotiate purchase actions from one a sale or in his behalf skill, again. drawer of safe another and back bargains for the disinterested dili Moreover, Bradley agent gence, said he did not think he and zeal of the for his own parties had told the of the other a confidence transactions exclusive benefit. It is neces reposed mother; sarily that the broker he Mrs. Reese was Mrs. Hanlon’s will act them, but he did also tell at least regard one with a sole to the as interest of his plaintiff, employer lawfully may. he did that Mrs. as seeking Reese was far he Con property to sequently, attempts use as home. he where Plaintiff’s claim act for falsely sides, one of fraud is both he is confronted with representing that the im making possible securing he an agent was actual sale as task of each the most independent possible.” purchaser. advantageous bargain fide bona 26 A.L. annotation; by 1036, Fraud can be shown R.2d evi circumstantial Sec. Am.Jur. ; 87; Brokers, 42, C.J.S., page 102; dence and other similar Re transactions in the § continuous, systematic Agency, course statement of Sec. 313. We course hold dealing plaintiff’s evidence, are Rice with the infer admissible. Lam mers, Mo.App., 151; reasonably 65 S.W.2d ences that could drawn Am.Jur. therefrom, C.J.S., Sec. sufficient to make Evidence, was a case § page C.J.S., Fraud, rescission; and that much of page defend § applied is cases, support this rule also ants’ evidence tended to criminal this con v. Kornegger, see State 968, 255 clusion. hospital a heart was in whether question of leaves This spring after the the'year unrea- condition much of to rescind plaintiff lost summer, probably of 1946. During are to following facts delay. The sonable lawyer early August, after the time "At on this issue. be considered acres, plain- begun investigation arid called Brad- S3 the sale closing it, ley’s plain- called office rumors Bradley she had heard tiff told telephone 'the hos- tiff’s from that Mrs. property and buying he pital and was him that him. told an investi- party for a mere straw Reese gation made, said,- of the deal was at 'you being laughed and just “he said She ” plaintiff’s request; getting and that he was can, said she anything.’ hear ready to suit to hear what file but wanted him but discussed believe tó inclined he' it. He go' before filed to the lawyer and decided with her told him “I did not also said:' Manor. She Rockhill purchaser, why and lived out of town but went to the That I him. believe (cid:127) City daughter that her lived 'in' Kansas if and s’ee up check Manor Rockhill he would ask her to come to see him stop at that hotel.” She did (plaintiff’s about it. Mrs. Hanlon lawyer) after- the deal there soon went said she did not do so but in suspicion closed; á sent check to for the investigation she made confirmed due, and’interest then drawn on a objection she was (On

there. defendants’ *6 different bank'than the one used to what she testify as permitted to signed “Mary Acct. C. she did believe Escrow learned.) Later she said plain- Vera Hanlon.” This was after closed Bradley at time the deal was but the J. lawyer tiff’s had to Company talked about receiving after that investigation. prin- Plaintiff’s and com- the interest checks for two 1945 pared signature this with the one on the note she cipal payments mortgage original sale contract and decided both suspicion that thought her were in the handwriting same and said September this buyer and that was confirmed very suspicious made him about the Bradley was deal. that felt confident 1945 she He said that he did not know Mrs. Hanlon all buyer gossip all and “from * * * employee Bradley anwas until after this these checks.” had and evidence I received, letter plaintiff and he told negotiations 1945, plaintiff had During to cash the check. When the east of the seven acres the sale cashed, check was not Hanlon sent Highway with the Carter-Waters of the plaintiff duplicate by registered mail in to proposing build Corporation, which was ' 1946, saying December stopped she had nearby. plant This' re- Haydite block payment the original, on believing it to Bradley opposed at rezoning quired have been February lost in the mail. In he this at hearings. He said did several 1947, registered she sent a check by mail he many to whom customers request of payment. first 1947 Plaintiff did that area. Neverthe- property sold not cash of these sig- checks. It said, firm con- less, plaintiff nificant that the check to the County Col- Bradley was the that her mind viction lector for the (in 1946 taxes December accepted owner, cashed the 1946) was a Company check in- the third 1946 check being stead of drawn March on the account from However, she talk- which the checks sent plaintiff, by interest. Hanlon, these lawyer about checks and drawn. When Mrs. Hanlon to her ed suspicious nothing there was asked for the abstract March he told sold, saying the to be probably- land' was because that it begun and he was so-that could suit not be brought .the sold purchaser. matter of convenience to an innocent law- it as a Plaintiff’s paying yer delayed he filing suit because he her. 712, 724, Neither has S.W.2d 979. and “didn’t evidence some have wanted suspicion.” been shown in Plaintiff acted this case. on mere lawsuit file a want person before there was a sale a third relied im- changes and defendant made no trial court Apparently, Hammack, provements. No doubt there has been an v. Curotto followed on increase in the due A.L.R.2d value of the 457, 241 S.W.2d employed development City, agent of Kansas there estate case, a real that In widowed is we nothing the record about this and a sale to plaintiff made by the We judicially home. know most of has oc- lived in his who mother-in-law or curred since begun. this suit was these circumstances held to dis- give the dinarily Hammack, In addition to Curotto de v. judgment and, ordered affirm the sale rely fendants cite and on Blank v. Aron paid commission against agent son, Cir., Kingman-Moore 187 F. did not set aside to him. we Implement Ellis, Mo.App. 692, Co. v. until suit was not instituted saying sale Roller, 103 S.W. Ebel Mo.App., after 23 months transaction S.W.2d Restatement of Contracts grantee in months after the was declared Sec. 484 and Missouri Annotations. None competent, pow stating purchasing that the present cases cited a situation such steadily and er of had declined the- dollar (a this. the Blank In case F. pointed materially time. during that It [187 245] selling pur case of a agent becoming the as to the ex out the record was silent estate; chaser) the sale conveyance was set grantee’s tent and condition of the cas,e aside although it was contended that and it is not in that when the stated promptly “did not unevasively identity Like grantee was learned. rescind the sale after wise) being of de advised no active concealment of material n fendant's fraud.” The court said: “The appears to have been' shown in that facts subject well-settled rule on this Perhaps, is that one case. under the circumstances of entitled to case, rescind a contract the ground judgment ordered was ade *7 of fraud must quate Nevertheless, purpose equity. announce to do to do we are promptly, so unconditionally, and unwilling say lapse time uneva- that mere of sively upon discovery prac the the accompanied purchasing of fraud a decline in by the. upon ticed him.” power court prevent held of will rescission un support evidence was by sufficient to der the circumstances that indicated the rec compliance of finding require party with seeking ord herein. It is that “a true Implement ment. In the (a case re- representa Co. rescind for fraud or false plevin action), principal point dis tions must do promptly so and within a cussed necessity time, of a tender before by reasonable the right is lost action, bringing the the court discovery holding failure that to act in such 'a time on this was fraud, necessary in an action at law based might or after it have been by necessary equity rescission but not diligence.” discovered the use of due an C.J.S., Contracts, 432, page case, suit for 914. See rescission.- In latter § 1027-1029, 446-447; also the court willingness Secs. said tender and Am.Jur. pay plead Sec. Restatement of into court could made in the Am.Jur. Contracts, ings; replevin action, Sec. As these authorities but in a such as it show, important an consideration in required deter was the tender was considering, question case, S.W.2d, mining delay before suit. In the Ebel unreasonable is change po whether there has been loc.cit. court said: trouble “The party plaintiff’s position, nutshell, sition by guilty of fraud or prejudiced whether a discovery third has been that after of the fraud which had by delay. practiced her, Lindsay, upon also been See Collins v. instead of Mo.Sup., Carter, promptly announcing purpose 25 S.W.2d Leslie v. to re transaction, 240 Mo. S.W. Fi scind the she sold the v. Jones Co., National delity acquired Bank & Trust which she had Rollers, from the due) then letter by (sending the transaction stand elected to thus that let- Even far her was the owner. in so mother thereof accept the fruits and to lived or only ter did not disclose where she defendants looking to might, as she employee but she Mrs. Hanlon was a losses recoupment of whatever for a learning those For a it did afford some basis for the deal.” may suffered have telling v. facts. Even then Bassett see similar case somewhat plaintiff’s lawyer transaction was a Restate Brown, Mass. 551. Sec. power bona fide sale Reese. to Mrs. covers loss of ment of Contracts to her still had than sus- an intention little more by manifesting avoidance picion as a rescission and were affirm, dominion over basis for by exercising or prevented restored, being after dis defendants’ conceal- required to be things Roller, supra, is ment from the real facts. Under getting Ebel v. of fraud. covery case, to this all the we think Missouri annotations circumstances of this in the cited section, quoted, as an ex it is extensively unreasonable right covered Sec. 484. ample of the situation to rescission lost because she did ap are think these authorities not file her think the trial We do not suit sooner. We plicable Hammack, in this case. court in to the situation following Curotto

supra, overlooked the studied concealment It was sus pre- is true of material facts in this case picious the transaction from discovery vented the true nature of start; according We, therefore, to the evidence hold that transaction. believed, think is which we court right had not lost the to rescind concealment convincing, there was active when this suit was filed. and it continued of the facts defendants The judgment is reversed and the cause up In the time this suit was filed. remanded with directions to enter decree fact, claim that defendants did not even rescission, cancellation of deeds and for

they ever made full disclosure accounting. identity and residence Mrs. Reese. They only referred to her as All concur. presence plain in the Hanlon’s mother On rehearing Motion for if

tiff. Hanlon said did (Mrs. to transfer to banc. identity “then she was a know lady, poor Mrs. Reese’s because observing opinion Defendants claim our is based on I constantly name was mentioned and misinterpretation the trial de- court’s only ”) Not did say 'my mother.’ *8 say cree. Defendants be the decree should plaintiff where tell defendants never finding issues in- construed as all for the every in evidence Reese lived but deed finding and that the dividual defendants as her residence was she was delay merely unreasonable County, Missouri. Most stated as Jackson separate unnecessary De- finding. appear of these other deeds did not finding fendants further the one until 1946 and cor record corporation should con- against poration in his wife finding as a of failure to exercise strued was not made until Feb were interested diligence advising plain- due care and ruary the month before suit was to the value of the and the tiff as plaintiff was We think dili commenced. advisability of selling it. business investigating having gent in investigation; with all this is that and she did not The trouble make information from full disclosure must be considered as whole and decree get separate parts How could construed as isolated have not by defendants. Moreover, paragraphs. Mrs. Reese the basis of sooner found out liability, corporation’s Information as to iden than she did? solely through Bradley and the acting came when only tity of negli- all as to fraud and not evidence was 1946 stated Hanlon in badges of gence. Furthermore, most shown fraud on the transaction we While evidence.

defendants’ own evidence that before defendants’

showed “sufficient in, plaintiff evidence

came rescission”, defend- when make case for it did in we think

ants’ came evidence overwhelming on

make the entire evidence think the trial we also issue. While it had the same shows that court’s decree issue, arewe con- we have on this

view as finding only reasonable that it is the

vinced record. from the whole be made

that could overruled.

Defendants’ motion is

All concur. WALTERS, Appellant, L.

Rose Myrtle Sr., TUCKER,

Charles D. Wife, Respondents. Tucker, his

No. 44385.

Supreme Court Missouri. No. 1.

Division

July 11, 1955. Rehearing

Motion for and to Transfer to Sept. 12, Court en Banc Denied

L. A. Robertson and Alexander & Rob- ertson, Louis, appellant. St. Tompkins, Louis, David St. for re- J. spondents. HOLLINGSWORTH, Judge. quiet an action to This is title to certain City real estate situate in the of Webster