Opinion
No. 41799.
December 11, 1950. Rehearing Denied January 8, 1951.
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, HARRY J. LIBBY, SPECIAL JUDGE.
Thos. J. Brown, Kansas City, for appellants.
Albert Copaken, Sylvia Copaken, and James F. Pickett, all of Kansas City, for respondent.
This is an action in fraud arising out of a written real estate sales contract. At the close of plaintiffs' case, the trial court directed a verdict for the defendant, C. L. Criger From the judgment entered, plaintiffs appealed. Plaintiffs ask judgment against Criger for $7,500 actual damages and $7,500 punitive damages. At the outset we are confronted with a motion to dismiss the appeal. The motion covers five pages and in a number of points it is urged that appellants in their brief have not complied with the rules of this court. We have determined to decide the case on the merits and overrule the motion to dismiss without further comment.
Plaintiffs, Charles W. Saunders and Joan Carlton, owned a building at 4556 Walnut Street in Kansas City, Missouri. It was being used as a boys' boarding school. Gordon B. Bannister and Jemima E. Bannister, who owned a small hotel at Jerico Springs, Cedar County, Missouri, were originally named as defendants but later plaintiffs dismissed as to them. The defendant C. L. Criger was a real estate broker. On July 28, 1947, the plaintiffs and the Bannisters entered into a written contract whereby plaintiffs agreed to sell their property (above-mentioned) to the Bannisters. C. L. Criger was acting as the agent for both parties. The portion of the contract giving rise to this lawsuit reads as follows: "this contract being subject to buyers, through Criger Realty Company, Agents, negotiating a loan or loans for a minimum total of $10,000.00, proceeds of which Criger Realty Company shall pay to seller for account of buyer; Criger Realty Company also to hold warranty deed from buyers covering certain property at Jerico Springs, Cedar County, Missouri, legally described as: Lots 16, 17 and 18 of Block 3, in the original Town of Jerico Springs, Cedar County, Missouri, for the purpose of selling this said property with improvements consisting of a 22 room hotel for $7,500.00 cash, said amount less closing expenses to be applied to this contract and in event net cash realized is below $7,500.00, said shortage shall be added to buyers' second mortgage note to sellers; sellers to accept buyers' second deed of trust and note and chattel mortgage and note for remainder of purchase price above $2,500.00 cash payment plus proceeds of loan to be negotiated plus proceeds of sale of Jerico Springs property. If loan commitment for $10,000.00 minimum is not obtained within 15 days, this contract shall be declared null and void and earnest money refunded to buyers; otherwise it shall remain in full force and effect until consummated in all details as provided herein".
On September 2, 1947, plaintiffs Charles W. Saunders and Joan Carlton, the defendant Criger, and John Carlton, husband of Joan Carlton, were present at Criger's office. A warranty deed was executed and signed by plaintiff Charles W. Saunders, who had legal title to the Walnut Street property, conveying the property to the Bannisters. A deed had been executed by the Bannisters conveying their property but the name of the purchaser was left blank. This deed was held by Criger. In substance plaintiffs charge that Criger represented that he had a purchaser for the Jerico Springs property and that it would be sold within a few days so that plaintiffs would then get the balance of the purchase price which was $7,500. It was charged that Criger did not in fact have a purchaser and that the representation was false. It was further charged that Criger agreed to hold the warranty deed executed by Saunders until the full purchase price of $22,500 was collected for plaintiffs; that he violated his trust by delivering the deed to the Bannisters. It is claimed that $7,500 is still due plaintiffs and due to Criger's neglect, plaintiffs have no security therefor.
As we shall presently see, plaintiffs failed to prove any fraud on part of defendant Criger. Let us look at the contract signed by plaintiffs and compare its provisions with what the parties did in carrying out its terms as revealed by plaintiffs' evidence. It will be noted that Criger was to secure a loan of at least $10,000. The evidence showed that plaintiffs knew this loan was to be secured by a deed of trust on the Walnut Street property. It was, therefore, necessary to have the title transferred to the Bannisters so the loan could be made. This was done on September 2. The charge that Criger agreed to hold the deed was not supported by the evidence. In addition to the above facts, let us see what became of the deed on September 2.
As mentioned above, John Carlton, husband of plaintiff Joan Carlton, was present at the meeting on September 2. He testified as follows:
"Q. Are you assuming that is when this deed was signed that you were up there? A. Yes, sir.
"Q. What happened to the instrument after it was signed? A. That deed?
"Q. Yes, — did you take it down to the Pulliam Company? A. Yes, sir. There were several papers.
"Q. Was this one of them, this deed, too? A. Yes, that is one of them I took over there.
"Q. You took that over, and also a letter stating the balance of the indebtedness on the property at 4556 Walnut? A. I don't know about the letter.
"Q. You took other papers to the Pulliam Company? A. I took some; I didn't examine each one.
"Q. When this deed was signed it was turned over to you and you took it over to the Pulliam people? A. His boy was not in there, I think I volunteered to take it over there, — I think.
"Q. You got a receipt for it? A. No, I took them and delivered them.
* * * * * *
"Q. Do you know whether your wife got the money from the Pulliam people? A. Yes, sir."
The loan was made by Pulliam Company for $12,500 which was used as a part of the purchase price. Obtaining a loan of $12,500 made it unnecessary for plaintiffs to take a second deed of trust on the property as mentioned in the contract. The fact that plaintiff's husband, John Carlton, personally delivered the deed to the Pulliam Company belies any agreement on the part of Criger to hold the deed. The $2,500 cash payment mentioned in the contract was made. The plaintiffs, therefore, received by the arrangement under the contract the sum of $15,000 cash. This left a balance of $7,500. The contract provided that the Bannisters were to execute a deed conveying their property. The deed was to be held by Criger for the purpose of selling the property and the proceeds were to be applied to the payment of the $7,500 still due. The Bannisters did execute a deed conveying their Jerico Springs property and Criger took possession of the deed and held it as provided for in the contract. The contract provided that this property in Jerico Springs was to be held as security for the balance due on the purchase price. In case the sale of this property was made for less than $7,500, plaintiffs were to take a note and deed of trust for the balance due. The charge, therefore, that the defendant delivered plaintiffs' deed without obtaining any security for the balance due on the purchase price is not supported by the evidence.
Criger was not successful in obtaining a buyer for the Jerico Springs property. He did tell plaintiffs during the negotiations that he had several bidders for the property and that the sale would be made within a few days. However, the agreement signed by the plaintiffs contemplated that the sale would not take place until after September 2. Criger took possession of the deed for the Jerico Springs property and held it as security for plaintiffs. We cannot see wherein Criger perpetrated any fraud on the plaintiffs. Appellants in their brief say: "The question of fraud and what constitutes fraud in all of its ramifications is a very indefinite matter and an exact gauge of the amount of evidence that we must produce upon the trial of a fraud cause in order to substantially prove and sustain the issues is dependent upon each particular case."
What constitutes fraud may depend upon the particular facts in a given case. However, fraud is never presumed and while legal fraud sometimes arises out of a given state of facts, there must be present certain elements from which fraud may be inferred. 37 C.J.S., Fraud, § 3, page 215; Dunham v. Tenth Street Garage Sales Co., Mo.App., 94 S.W.2d 1096, loc. cit. 1099 (3). Among the necessary elements is that plaintiff must have been damaged. In this case plaintiffs received all that was called for in their contract. They complain because Criger did not sell the Jerico Springs property. The contract provided, and plaintiffs agreed, that this property should be held for sale for their benefit. That was done in the exact manner as the contract required. That being so, the trial court was justified in directing a verdict for the defendant Criger. As above-stated, in the original petition plaintiffs joined the Bannisters as defendants. Plaintiffs for a consideration of $5,000 dismissed as to them. The case was tried as against Criger only.
Having determined that plaintiffs failed to prove their case, we hereby affirm the judgment of the trial court.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court.
All concur.
BOHLING and BARRETT, CC., concur.