text:
    SECOND STREET IMPROVEMENT COMPANY, Appellant, v. KANSAS CITY SOUTHERN RAILWAY COMPANY.
    Division One,
    March 3, 1914.
    1. STREET: Vacation: Title. Upon the vacation of a public alley by the city council, the title to the land and the right to the use thereof revert to the owner of the abutting property of which it is a part.
    2. LANDS: Occupied by Railroad: Ejectment or Damages. Where an eight-foot strip of land belonging to plaintiff is occupied by a railroad company with its baggage room and tracks and is used for a long time for that purpose after a ten-year lease thereon expired, and plaintiff stood by and saw it so used and the company go to the expense and trouble of condemning the adjoining land, from which proceeding the strip was in-, advertently omitted, plaintiff’s remedy is not ejectment, but a suit for damages for the wrongful appropriation of the land, where his substantial rights would not thereby be injured, and the public service would be crippled by ejectment. Plaintiff’s invitation to the company to use the land for railroad purposes, and his silence while it was being put to such use, estops him to recover the land itself, though not to recover its value.
    Appeal from Jackson Circuit Court — Ho» J. H. Slover, Judge.
    Affirmed.

      C. W. Bailey and E. C. Wright for appellant.
    (1) The legal title to the strip of land sued for vested in the plaintiff on March 29, 1891. (2) The alley vacated was a strip of land 16 feet wide east and west and 140 feet long north and south, of which the land sued for in this case is the west one-half. (3) The lease of Lots Nos. 112 and 113, Old Town “ eo nomine” from the Second Street Improvement to the Kansas City Suburban Belt Railroad included on the principle of accretion that part of the vacated alley sued for in this case. Railroad v. Patch, 28 Kan. 470; Snoddy v. Bolen, 122 Mo. 479; Paine v. Storage Co., 71 Fed. 626. (4) The grantor deeds and the grantee takes through a deed according to a plat which calls for a street to the middle of the platted street. This is not only a rule of construction but one of policy established for the purpose of ascertaining the intention of the grantor, that will not be departed from unless the deed expressly provides to the contrary. Banks v. Ogden, 69 U. S. 57; Thomas v. Hunt, 134 Mo. 392; Gould v. Railroad, 142 Mass. 85; Cox v. Louisville, 48 Ind. 178; Dubuque v. Maloney, 9 Iowa, 450; Paul v. Carver, 24 Pa. St. 207; Perrin v. Railroad, 36 N. Y. 120. (5) A tenant cannot claim possession adversely to his lessor, especially when he has gone into possession under a written lease. Handlan v. McManus, 100 Mo. 124; Crockett v. Althouse, 34 Mo. App. 404; Hamilton v.- Boggess, 63 Mo. 233; Budd v. Collins, 69 Mo. 129; Gordon v. Eans, 97 Mo. 587; Corn-stock v. Eastwood, 108 Mo. 41. (6) Even if the lease did not cover that part of the vacated alley as being a part of the lots on the west and owned by appellant, yet it belonged to plaintiff March 29, 1891, and respondent and its predecessor never claimed it adversely to plaintiff till on or after the jury trial on the exceptions in the condemnation ease, which was in December, 1907. (7) The appellant never did anything further than the execution of the lease which expired June 1st, 1901, to invite the respondent and its predecessor to build tracks or other improvements upon the eight-foot strip of land sued for in this case, and therefore is not estopped to bring ejectment, and whatever improvements were made, respondent had a right to make under said lease. Walker v. Railroad, 57 Mo. 275; Childs v. Railroad, 117 Mo. 414; Green v. Railroad, 82 Mo. 653; Bradley v. Railroad, 91 Mo. 500 -, Dodd v. Railroad, 108 Mo. 585. (8) The respondent did not make any improvements on the disputed land after June 1, 1901, and therefore appellant is not es-topped to bring ejectment for the land in suit, but had the option to bring ejectment or a suit for damages for appropriation. Doyle v. Railroad, 113 Mo. 287. (9) The plaintiff is aware of the fact that there are many and numerous decisions in the State of Missouri to the effect that where a land owner stands by and consents that a railroad may build upon his land, waiving prepayment of damages, he cannot pursue ejectment but is left to his remedy to sue for an appropriation for the value of the land taken and damages to the remainder of which that taken forms a part. Pro-volt v. Railroad, 57 Mo. 256; Scarritt v. Railroad, 127 Mo. 298.

      S. W. Moore and Cyrus Crane for respondent.
    (1) The lots adjacent on the west of the eight-foot strip in question, having been purchased by the plaintiff in the interest of and for the use of the railroad company with an understanding that later on the railroad company would take them off the hands of the improvement company at a profit, it is apparent that the entry of the railroad company upon the strip in question was permissive. The only reason why the railroad company did not acquire this property in the first instance, according to Mr. Martin, was that the railroad company did not have the money, whereas, the improvement company, composed of the same stockholders was equipped with the necessary funds to make the purchase. The railroad company apparently proceeded upon the assumption that it owned the strip and apparently the Second Street Company acquiesced in that claim by making no claim for it until December, 1907, when, in connection with the trial before a common law jury in a condemnation suit affecting the lots to the west of the vacated alley, the plaintiff for the first time suggested that it might have some claim to it. This very fact that the appellant alleged it had “forgotten” it had any claim to the strip and made no claim of the kind for six or seven years after the lease on the adjoining property had expired and the property of the Suburban Belt Railroad Company had been sold to a company which had no affiliation with the Second Street Improvement Company or its stockholders, is strong evidence that the improvement company had never regarded this strip except as right of way for depot grounds which it had obtained and turned over to the railroad company without expense. (2) It has been held in a long line of decisions in this state that a property owner cannot stand silently by and see a railroad company spending money and making improvements upon his land for railroad purposes and thereafter maintain an action in ejectment against the railroad. Cray v. Railroad, 81 Mo. 126; Provolt v. Railroad, 57 Mo. 256; Kanaga v. Railroad, 76 Mo. 207; Bradley v. Railroad, 91 Mo. 499; Alexander v. Railroad, 138 Mo. 473.
   GRAVES, J.

This is an action in ejectment for a strip of ground eight feet wide by 140 feet long in Block 11 of the old town of Kansas City, Missouri. Ouster is laid as of December 1, 1903, damages asked in the sum of $10,000 and monthly rents and profits alleged to be $100 per month. The facts may be thus summarized:

In 1890 the Kansas City Suburban Belt Railroad Company located its depot at Second and Wyandotte streets in Kansas City, Missouri. The Railroad Company did not acquire all the lands necessary for its use for a depot and other terminal facilities, but a portion of the necessary lands were acquired for such use by the Second Street Improvement Company, a friendly corporation, whose officers and directors were largely identical with those of the railroad company.. Both corporations had the same president. The lands acquired by the Improvement Company were Lots 112, 113 and 114 of Block 11. These were to the west of lands owned by the railroad and separated therefrom by a sixteen-foot alley. Block number 11 does not set square with the compass, but sufficiently so for us to say that it is bounded on the north by Second street, on the south by Third street and on the east by Wyan dotte street. This block contained ten lots numbered respectively from 107 to 116 inclusive, as indicated by the plat in evidence. The alley of 16 feet ran north and south through the block, and lots 112,-113 and 114 were on the west of the alley way, and next to Second street, lot 112 abutting upon Second street, with the other two lots to the south of it. On the east of the alleyway were lots 111 and 110, the former of which abutted in its length upon Second street, and in its width on Wyandotte street. The depot of the Suburban Belt railroad was built upon lots 111 and 110, and extended across this alley over on the lots acquired by the Improvement Company. 'It is the west eight feet of this alley which is involved in this suit, and such eight-foot strip runs through the baggage room of the depot above mentioned.

Recurring now for further development of the facts. Mr. Martin, the then president of the Improvement Company, in a letter written to the railroad company, thus states the reasons of the purchase:

“All this property (Lots 112, 113 and 114 and other property) was purchased in the interest and for the use of the Suburban Belt Railway, but at that time its financial condition was such as to have the Second Street Improvement Company take the property in its name with the understanding that later on Suburban Belt was to take it off their hands at cost, with four per cent per annum net profits added.”

The Improvement Company got its deed to the lots above named April 29, 1890. In June, 1891, the Improvement Company and the Railroad Company entered into a lease, by the term of which the Railroad Company was to have possession of said lots 112, 113 and 114, for a term ending' in ten years, or on January 1,1901. The purpose or use expressed in the lease was for “depot grounds.’’ A rental of $2,566.40 per year was fixed, which was to be paid semiannually. In the lease the Railroad Company was given the option to purchase upon terms in the instrument named. By ordinance approved March 12, 1891, the Common Council of Kansas City vacated this alley in so far as it affected the lots above mentioned.

In 1901 all the property interests of the Kansas City Suburban Belt Railroad were purchased by the Kansas City Southern Railway Company, the respondent in the case at bar. This was at a foreclosure sale in the'Federal Court. In March, 1902, the Kansas City Southern Railway Company brought its suit to condemn Lots 112, 113, and 114, supra, but it appears that this west half of this alleyway was not specifically mentioned. The right or alleged right to this strip seems to have been overlooked for a time. Upon a trial nisi the court held that plaintiff should have brought suit for the appropriation of the land, rather than a suit in ejectment for the land itself. It should be added that not only does the defendant’s depot cover this strip, but it is crossed by the tracks of the defendant. Prom this adverse judgment the plaintiff has appealed. Points made, and additional facts, if required, will be noted in the opinion.

I. It will be noted that plaintiff acquired the three lots abutting upon this alley in April, 1890; that the alley was vacated in March, 1891; and, that the lease was made in June, 1891. That upon the vacation of the alley, the use and title thereto, so far as the west half is concerned, reverted to the Improvement Company there can be no doubt. But as to whether this eight-foot strip was covered by the lease afterward executed, or was involved in the condemnation suit afterward brought, we shall not discuss, because in our judgment, the judgy ment nisi was right upon the theory stated by the trial court. This question we take next.

II. Under the facts shown the trial court held that plaintiff should not have sued in ejectment, but should have brought his suit for the value of the property, so that the affirmance of the judgment here does not preclude the plaintiff from getting a<Jual justice, if such it desires, in a proper suit. The affirmance of the judgment does preclude the plaintiff from cutting out an eight-foot segment from defendant’s depot and railroad tracks. We think the court was right in holding that the plaintiff should have sued for the appropriation of the property, rather than for the property itself. Cases of this kind stand upon a little. different footing from cases where pure individual rights are involved. The public service is a proper matter for consideration in a way. Public service by a common carrier might be brought to naught, if an individual could eject it from an eight-foot strip across its right of way, at a point along its line midway between the two ends. Of course the supposed case is not exactly this case, but the legal principle which governs the one is the same which must be applied to the other. The courts have been very loath to allow ejectment in any case where the public service would be crippled by the act of ejectment. They do not put it upon the ground that the public service would be hampered, but they have been diligent in finding doctrines upon which the ends of the public good would be met, without injuring the substantial rights of the individual property owner.

The facts in this case estop the plaintiff from claiming the land in kind. Giving the lease the full force for which the plaintiff contends, yet the plaintiff for some years after its expiration stood by and saw the defendant use the property, and later permitted it to go to the expense and trouble of condemning lands on the other side of it. These and the other facts in the record heretofore detailed authorized the judgment nisi.

In the very early case of Provolt v. Railroad, 57 Mo. l. c. 262-263, Wagner, J., thus stated the rule:

“In these great public works the shortest period of clear acquiescence, so as to fairly lead the company to infer that the party intends to waive his claim for present payment, will be held to conclude the right to assert the claim in any such form as to the company in the progress of their works, and especially to stop the running of the road after it has been put in operation, whereby the public acquire an important interest in its continuance. The party does not, of course, lose his claim or the right to enforce it, in all proper modes. . . . But it is certain, according to the English decisions, that he cannot stop the works, and especially the trains upon the road, if he has in any sense, for the shortest period, clearly given the company, either by his express consent, or by his silence, to understand that he did not intend to object to their proceeding with their construction and operation. ’ ’

Again in Gray v. Railroad, 81 Mo. 126, we cited with approval this Provolt case, and further said:

“If from negotiation in regard to the price of the land, or for any other reason, there be just ground of inference that the works have been constructed with the express or implied assent of the landowner, it would seem wholly at variance with the expectation of the parties, and the reason of the case, that the landowner should retain the right to enter upon the land, or to maintain ejectment. There are other effective and sufficient remedies. . . . The only question we are called upon to decide is, whether, under all the facts and circumstances of this case, ejectment will lie, and we think' it will not. ’ ’

In Kanaga v. Railroad, 76 Mo. 207, this court used the following language:

“It is well settled law, in this State, that if the owner of land encourages or permits a railroad company to enter and construct its road upon his land, he cannot afterward maintain his action of ejectment to recover possession of the part so taken for a roadbed. [Provolt v. C., R. I. & Pac. R. R. Co., 57 Mo. 256; Baker v. C., R. I. & Pac. R. R. Co., 57 Mo. 265; Hubbard v. K. C., St. Jo. & C. B. R. R. Co., 63 Mo. 68.]”

The rule announced in these earlier cases has been consistently followed. [Bradley v. Railroad, 91 Mo. 499; Alexander v. Railroad, 138 Mo. l. c. 473.]

The case law does not deprive a plaintiff of the right to recover for his property, but for public reasons precludes him from the remedy of ejectment. In other words, as said in the Alexander case, supra, “under such circumstances he is estopped from bringing an action in ejectment.”

So we say in the case at bar. The circumstances in evidence preclude, on the ground of estoppel, the plaintiff from bringing and maintaining ejectment. Whether he has any remedy at all, we do not now say. It is sufficient to say that the judgment nisi, predicated, as it is, should stand. Let the judgment be affirmed.

All concur.


source: Caselaw Access Project

author: BOND, J.

license: Public Domain

text:
    TAYLOR WILSON and ROBERT WILSON v. ISAAC C. WILSON, Appellant.
    Division One,
    March 3, 1914.
    1. HOMESTEAD: Sale for Decedent’s Debts. Under Sec. 5439, . R. S. 1889, the homestead of a deceased householder could be sold, in the course of administration, to pay his debts, subject to the homestead rights of his widow and minor children.
    2. JUDGMENTS OF PROBATE COURT: Collateral Attack. Judgments of probate courts in administration matters are entitled. to all -the presumptions that attach to judgments of courts of general jurisdiction; and if they are regular on their face and do not show a lack of jurisdiction in any of the proceedings, they are invulnerable to collateral attack. Nor will a direct attack in equity avail unless the petition alleges some ground recognized in equity as sufficient to authorize an annulment of a judgment.
    3..-: Jurisdiction: To Appear “Before” Day Fixed. The use of the word “before” instead of “at” in the publication requiring the persons named to appear “before” the day fixed by the order, was an irregularity which did not go to the jurisdiction of the court.
    4. -: Administration: Sale of Real Estate to Pay Debts: Allowance of Demands. Where the records of the probate court state there were debts against the estate, the fact that the court subsequently to the date of such recital granted a rehearing of the demands allowed did not abrogate that recital nor does it tend to show that the demands were not allowed on the rehearing.

      5. RECOVERY: Bounded by Pleading. There can be no recovery on causes of action not pleaded. Where plaintiff’s petition alleged the judgment of the probate court directing the sale of decedent’s real estate to pay debts was void on the ground that the land was a homestead, and a judgment for him cannot be upheld on that ground, he cannot have it upheld on other grounds not pleaded.
    Appeal from Dunklin Circuit Court. — Hon. W. S. CL Walker, Judge.
    Reversed and remanded.

      Bradley & McKay for appellant.
    (1) The homestead could be sold at the time it accrued to the widow and children in 1884, for the payment of debts created during the lifetime of the deceased, subject to the rights of the widow and minor children. See. 5439, R. S. 1889. This statute clearly authorizes a sale of the fee to pay debts, subject, however, to the rights of the widow and minor children, if' any. Anthony v. Rice, 110 Mo. 223; Robins v. Boulware, 190 Mo. 41; Keen v. Wyatt, 160 Mo. 1; Bunn v. Lindsay, 95 Mo. 250; Crisp v. Crisp, 86 Mo. 630. (2) The judgment is clearly against the law as applied to the evidence in this cause, as the petition and all the evidence show the court had jurisdiction to sell the-lands and the sale was legally and fairly made. Defendant pleads laches and estoppel as a special defense to this action. The evidence shows that respondents were minors at the time this sale took place-in 1902, that Taylor Wilson was nineteen years old and Robert Wilson was eighteen years old; that Taylor Wilson was twenty-seven, and Robert Wilson twenty-six when this suit was filed; that they knew the-land was sold to pay the debts of their deceased father and that their step-father purchased said land and sold the same to their brother, appellant herein, and with full knowledge of all facts connected with the sale,. they stood by and saw their brother make valuable and lasting improvements, such as clearing and fencing, and saw the land increase in value from one thousand five hundred dollars to a value of two thousand dollars. They are now barred by their laches, though short of the period of the statute of Limitations. Kroening v. Groehri, 112 Mo. 641; Butler v. Lauson, 72 Mo. 249; White v. Storm, 236 Mo. 491.

      W. R. Satterfield, Thomas F. Donaldson and J. P. Tribble for respondents.
    (1) Appellant contends that the judgment is for the wrong party. He urges in support of this assignment of error that plaintiffs’ petition alleges that the land was the homestead of deceased, W. H. Wilson, and could not be sold for the payment of his debts, subject to the homestead, and that the sale is, for that reason, void; that having alleged this fact, plaintiffs are confined to that one ground of relief. And if in error as to that point, cannot recover at all, no matter how void the sale may have been from other causes. In other words: that it makes no difference if the administrator’s sale was void from other causes, yet, if the land could be sold subject to the homestead, the sale must stand, because plaintiffs allege that the land could not be sold subject to the homestead. He strenuously urges that the homestead could be sold, since Wilson died in 1884. Conceding for the sake of argument that appellant is correct as to the right to sell the. land subject to the homestead, there is ample evidence to sustain the judgment of the court — evidence showing that the sale was void on other grounds. The first count of the petition is to determine the title. Appellant evidently overlooks the fact that in suits to determine title the petition need not set out plaintiff’s title, nor is the plaintiff required to set out the nature or extent of the defendant’s claim of title where its nature is unknown. The petition was sufficient. R. S. 1909, sec. 2535; Huff v. Land Co.,-157 Mo. 65. And in such action the court by its judgment or decree may determine the estate and interest of the parties. And the court may determine all rights, claims, interests, of the parties in the land, and grant full and complete relief, whether legal or equitable, with the same force and effect as the court might or could do in any other or different action, and when so rendered shall be as effectual between the parties as if rendered in any other or different or separate action prosecuted therefor. R. S. 1909, sec. 2535; Huff v. Land Co., 157 Mo. 65. The sale was void for the following reasons, aside from any consideration of the homestead laws existing at the time of the death of Wilson. There was no foundation for the order of sale. There was not one valid demand properly allowed against the estate at the time the sale was ordered. The order allowing the demands in favor of R. Peppers and L. P. Peppers had been revoked during the term of court at which they were allowed. The power of the probate court to revoke its orders allowing these demands, during the term of court at which they were made, is beyond question. Scott v. Smith, 133 Mo. 618; Orvis v. Elliott, 65 Mo. App. 90; Martin v. Tobacco Co., 53 Mo. App. 655; Randolph v. Sloan, 58 Mo. 155. While the date of the order revoking these allowances was omitted from the bill of exceptions by oversight, the trial court had the record before him. The order revoking the allowances was in fact made at the same term of court during which they were allowed. The probate court was without jurisdiction to order the sale of the land for the reason that the resident heirs had not been notified of the contemplated sale. This record shows that the proof of publication in the newspaper was made, but is silent as to the service of the notice on the heirs, The heirs were residents of Dunklin county and the order of the court directed that the notice be served upon them. This notice was jurisdictional. R. S. 1909, sec. 153; R. S. 1899, sec. 149; Hill v. Taylor, 99 Mo. App. 526; Young v. Downing, 145 Mo. 250; Patee v. Moore, 59 Mo. 164. The case was tried on the theory, in part, that the resident heirs were not notified, and it was clearly proven that no notice was served on the resident heirs. The witnesses were before the court and the court found that no notice was given. The order of sale, made upon petition of administrator, is at least defective if not void. That part of the order requiring notice to the resident heirs is: “And it is further ordered by the Court that a copy of the record be served on R. Peppers, Mrs. L. P. Peppers, Robert Wilson and Taylor Wilson, heirs to said estate, notifying them that unless they appear and show cause before the next regular term of this court why such order will be made for the sale of whole or so much of the estate as would take to satisfy creditors.” ' The heirs were not to be notified that real estate would be ordered sold if they did not appear, but merely “estate,” whether real or personal is not stated. If the notice had been served on plaintiffs, in the form directed by the order of the court, it would not have been sufficient compliance with the statute. The order does not require a notice in regular form served upon the heirs, but merely requires a copy of the record. Furthermore, the requirement is that they appear and show cause “before the first day of the next term of the court,” instead of at the next term of the court. If the order had been complied with, and a certified copy of the record served upon the heirs, it would not have met the requirements of the statute, and the court would still have been without jurisdiction to make the order of sale. (2) Appellant contends that plaintiffs had been guilty of laches, and urges that the plaintiffs are estopped from maintaining this action because of their delay, and because of permitting the defendant to make improvements on the land. The plaintiffs brought the suit within the statutory period. Their right to sue did not arise until the death of théir mother, less than two years before the suit was filed. She had been dead about three years at the time of the trial. The improvements consisted in clearing six or seven acres of land and appellant had sold timber off the land sufficient to pay for the improvements. Besides, he had received the rents of the land, amounting to $855, two-fifths of which properly belonged to plaintiffs. Appellant bought with full knowledge of the conditions surrounding the probate sale. He was one of the heirs, and cannot now plead laches under the circumstances. The plaintiffs never encouraged the appellant to make improvements.
    STATEMENT.
    W. H. Wilson died in Dunklin county, Missouri, October, 1884, leaving a widow and several children, two of whom are the plaintiffs in the petition hereinafter set forth, and were then under two years of age.
    At the time of his death he owned and occupied as .a homestead, forty acres of land. His widow remarried the next year and resided on the land until her •death in 1907, without issue of her second marriage. Administration was taken out upon his estate in 1902, in the course of which said land was sold for the payment of debts and purchased by the widow and her second husband, who received an administrator’s deed for the land in October, 1902.
    In 1909 Taylor and Robert Wilson, the youngest ■of the children of W. H. Wilson, deceased, and then aged twenty-six and twenty-seven yéars respectively, brought this action against defendant Isaac Wilson, who acquired title to said land by a deed from the purchaser at the time of the administrator’s sale.
    The petition is in two counts, the first of which needs only be stated since there was no recovery on the second (ejectment). Said first count, after stating plaintiffs were two children of W. PI. Wilson, and giving the names of his other children, and reciting-his death and the survival of his wife and her second marriage and death, set forth the cause of action to~ wit:
    “The said W. PI. Wilson died seized of the following described real estate, to-wit: Southwest quarter of the northwest quarter, section ten, township seventeen, range east.
    “That said W. H. Wilson at the time of his death and long prior thereto lived on said real estate and during all of that time held, enjoyed and treated the same as a homestead; and that said widow, Louisa P. Wilson, together with the plaintiffs herein, his said children, continued to reside on said real estate from and after his death until the-day of-, 1902, at which time one 'L. W. Myracle, as administrator of the estate of the, said W. H. Wilson, deceased, attempted and pretended to sell said real estate to the said R. Peppers for the alleged purpose of paying the indebtedness of the said W. H. Wilson, deceased; that at the time of said sale said real estate was the homestead of said Louisa P. Peppers and the plaintiffs;, that said sale and all proceedings in the probate court incident thereto were absolutely null and void and of no binding force or effect whatever against the plaintiffs.
    “That the defendant, Isaac O. Wilson, has the possession of said and claims title to all of said premises by reason of a deed from the said R. Peppers and wife; that the plaintiffs are the owners of an undivided two-fifths interest in said real estate.
    “Wherefore, the premises considered, the plaintiffs pray the court to ascertain and determine the estate, title and interest of said parties respectively in such real estate and to define and adjudge by its decree or judgment, the title, estate and interest of the parties severally in and to such real property, and for such other orders and demands as may he deemed just and proper, and for costs.”
    Defendants answered by a general denial and a plea of laches.
    On the hearing the court adjudged that each of the two plaintiffs was entitled to one-fifth of said land. From a decree quieting their title to that extent defendant has duly appealéd to this court.
   OPINION.

BOND, J.

(After stating the facts as above).— At the time when W. H. Wilson died and at the time of the sale of the real estate on which he had established a homestead, by the administrator °f estate, there was a statute in this State (R. S. 1889, sec. 5439) declaratory of the right of creditors to enforce their claims in the course of administration of a decedent’s estate by selling the same subject to the homestead rights of the widow and minor children. [Robbins v. Boulware, 190 Mo. 33; Keene v. Wyatt, 160 Mo. 1; Anthony v. Rice, 110 Mo. 233; Bunn v. Lindsay, 95 Mo. 250; Crisp v. Crisp, 86 Mo. 630.]

When the present action was brought, the widow of W. H. Wilson had died and his youngest children, the two plaintiffs, had attained their majority, and there was no person in existence who had any homestead rights in this property. It follows that the count of the petition set forth in the statement above, stated no cause of action in them, on the theory that the sale decreed by the probate court was a nullity or prejudicial to any rights accruing to plaintiffs under the homestead law in vogue when that sale was made.

II.

The learned counsel for respondents practically ■concedes in his brief that the judgment in their favor below cannot be upheld upon the specific attack made in their petition upon the proceeding’s in the probate court through which appellant acquired title. But they suggest that there are other grounds, not alleged in the petition, which would suffice to sustain the judgment of the circuit court and permit us to affirm it. The grounds thus suggested are, to-wit: (1), That the proceedings of the probate court disclose that its order to sell the land ■of "VY. PI. Wilson was made before any debts were allowed against his estate; (2), That the heirs who were residents of Dunklin county were not served with notice; (3), That the order made by the probate court requiring notice to them is defectively worded.

The first answer to all of these contentions is that the record and proceeding’s of the probate court, which were introduced in evidence, disclose on their face that all the steps taken in that court were regular and in conformity to the rules of law governing its action. Administration was duly taken out; claims were duly presented; a petition was filed for the sale of lands to pay debts; due notice was ordered to be given as prescribed by law; a sale was made in conformity with the directions of the probate court and duly reported and confirmed by the court; and a deed, regular in all respects, was made to the purchasers. There does not appear in any part of-the proceedings or in the files constituting the records of the county court, any fact or recital which ousted that court of jurisdiction of the cause or the parties to be affected or the res.

The rule is now weH settled that the judgments of such courts in administration matters are entitled to all the presumption given by law to the judgment of a court of general jurisdiction, and where they are regular on their face and do not disclose lack of jurisdiction in any of the proceedings, such judgments are impervious to collateral attacks. [Desloge v. Tucker, 196 Mo. l. c. 601; Robbins v. Boulware, 190 Mo. l. c. 51.) Nor are they open to a direct attack in equity except by a petition which alleges some recognized ground for annulment of the judgment under the rules governing courts of equity.

To overcome the presumption of jurisdiction attached to the proceedings and judgments of the probate courts arising from their recitals of jurisdiction contained in its records and their silence as to any matters disclosing their want of jurisdiction, it was incumbent on plaintiffs to set forth in their petition the specific grounds for annulling the proceedings in the probate court. Instead of alleging that the probate court was without jurisdiction of the persons of the plaintiffs, the petition charges that the action of the probate court was void for another reason, which it has been shown did not invalidate it. Moreover during the trial there was no proof in pais that the plaintiffs were not notified of the proceedings in the probate court.

Nor is there any merit in the contention that the publication ordered by the court was defective. It simply required the person named to appear “before” instead of “at” the day fixed in the order. That was merely a harmless.irregularity which did not go to the jurisdiction of the court.

Nor is there any merit in the suggestion that there were no debts against the estate. The record and proceedings state to the contrary, and the fact that the probate court granted a rehearing of the demands allowed, does not militate against the statements of its record that they existed, nor tend to show that they were disallowed on the rehearing. But none of these contentions were alleged in plaintiffs’ petition, and neither in equity nor in legal action, can there be any recovery on unpleaded causes of -action. And in neither forum will a judgment be sustained when it was rendered on a totally different cause of action than any comprehended within the allegations of the petition in the cause. [Newham v. Kenton, 79 Mo. 382; Kilpatrick v. Wiley, 197 Mo. l. c. 163; Milliken v. Commission Co., 202 Mo. l. c. 654; Black v. Early, 208 Mo. l. c. 313.]

The result is that the judgment in this case is reversed and the cause remanded.

All concur.


author: WOODSON, P. J.

text:
    JOSEPH GERARDI, Jr., Appellant, v. HARRY B. GARDNER; HENRY W. FEMMER, Trustee, Intervener.
    Division One,
    March 3, 1914.
    1. PRACTICE: Demurrer to Evidence: Admission of Truthfulness. In a suit for money had and received, an instruction telling the jury that plaintiff is not entitled to recover, asked by defendant at the close of plaintiff’s case and given by the court, admits the truthfulness of plaintiff’s evidence.
    2. MONEY HAD AND RECEIVED: False Representations: Purchase of Land. Evidence that defendant agreed to buy a lot for plaintiff and have it deeded to him, and received money from him for that purpose, and with it bought.the lot and took the title in his own name, and falsely represented to him that the lot had been conveyed to plaintiff and that there was a mortgage thereon which was about to become due and must be paid at once, and by those false representations obtained from - plaintiff enough money to pay said pretended incumbrance, is sufficient to make, out a prima-facie case for money had and received.
    3. -: -: -: Settlement. And defendant having by such fraudulent representations and deceit obtained plaintiff’s money, a contract of settlement, in which plaintiff acknowledged the receipt of the money so obtained, which is itself based on the rankest fraud, is no bar to a recovery of the money.

      4. -: Tender to Restore Status Quo. A failure to tender back the worthless stock deceptively and fraudulently given to plaintiff in a pretended settlement of his claim for money received by false representations and deceit,, shown by the evidence to be entirely worthless, will not defeat plaintiff’s suit to rcover the money so obtained.
    Appeal from St. Louis City Circuit Court. — Hon. George H. Williams, Judge.
    Reversed and remanded (with directions).

      B. M. Nichols for appellant.
    (1) In considering the action of the court in directing the verdict the plaintiff is entitled to every inference of fact which the jury might have drawn from the evidence. Lee v. Geo. Knapp & Co., 137 Mo. 385; Barth v. Elevated Ry. Co.,. 142 Mo. 536Young v. Webb City, 150 Mo. 341. (2) If the representations were made it was for the jury to say whether the representations were false and fraudulent. Mooney v. Davis, 75 Mich. 188; Bigler v. Atkins, 118 N. Y. 671; Bartlett v. 'Smith, 17 Fed. 668. (3) The jury would have inferred, from the fact that Gardner immediately used plaintiff’s money to pay labor and material bills on his wife’s house and appropriated large sums to his own use (as conclusively shown by his bank account and returned checks.), that the receipt of November 1, 1906, was fraudulently designed and intended by him to protect himself from his acts of embezzlement; and the jury had the sole right to pass on this fraudulent intention. ■ Fraud is a question for the jury. 14 Am. & Eng. Ency. Law (2 Ed.), p. 205; 1 Am. & Eng. Anno. •Cas., 446; Kuykindall v. McDonald, 15 Mo. 416, 57 Am. Dec. 212 and note; Bidault v. Wales, 19 Mo. 36, 59 Am. Dec. 327 and note; Owens v. Rector, 44 Mo. 390; 2 Thompson on Trials, p. 1440, sec. 1945. (4) The receipt in itself was a badge of fraud, when it was' shown to have no consideration and to have been extorted from the Gerardis under the promise of vesting the corporation with the title, which had been taken contrary to the instructions, by Gardner in his own name, and when connected with the act of Gardner, before he vested the corporation with the title, in placing a mortgage thereon in favor of his brother for $600,000. These fraudulent acts should have been submitted to' the jury. Fout v. Giraldin, 64 Mo. App. 165; Brown v. Worthington, 162 Mo. App. 508; Lappin v. Crawford, 186 Mo. 463; Hackley v. Headley, 45 Mich. 517;. Adams v. Schiffer, 11 Colo. 15. (5) A false representation as to the ownership of property, and of solvency for the purpose of inducing credit, is actionable. Bing v. Paint Co., 44 Mo. App. Ill; Judd v. Weber,. 55 Conn. 267; Kane v. Dickenson, 60 N. II. 371; Childs v. Merrill, 63 Vt. 463; Rothschild v. Mack, 115 N. Y. 1; Eaton, etc., Co. v. Avery, .83 N. Y. 31; Orr v. Moore, 105 Iowa, 409; Note to Childs v. Merrill, 14 L. B. A. 264. (6) A receipt is evidence of payment therein recited, but always open to explanation, and when it was shown that no money passed but was given for the purpose of getting Gardner to convey the title of the property to the Monarch Realty Company, the court should have declared as a matter of law that it was not given in discharge of the previous moneys received by Gardner and did not constitute an estoppel in this case. 30 Cyc. 1288; 17 Cyc. 630; Squier v. Evans, 127 Mo. 514; Wagmann v. Rothwell, 121 Mo. App. 413; Strawni v. Railroad, 120 Mo. App. 142. (7) Fraud may be inferred; it may be established by circumstantial as. well as by direct evidence, and proof of it may be inferred from the surrounding facts and circumstances. State to use v. Estate, 6 Mo. App. 6; Groshke v. Brandenheimer, 15 Mo. App. 553; Spangler v. Kaufman, 46 Mo. App. 652; Blackwell v. Frey, 49 Mo. App. 638; Bidge v. Green, 53 Mo. App. 483; Gordon v. Ismay, 55 M.o.' App. 325; Muenke v. Bunch, 9 Mo. 409; Hopkins v. Stewart, 58 Mo. 201; Bogort v. Borchert, 59 Mo. 83. (8) If it be conceded that the receipt of November 1, 1906, for the stock had anything to do with the release of the two sums of money, it was proper for plaintiff to set np its fraudulent procurement in the reply, and the question of its fraudulent procurement should have been submitted to the jury. R. S. 1909, sec. 1812; State ex rel. v. Stuart, 111 Mo. App. 478; Girard v. Car "Wheel Co., 123 Mo. App. 358; Roberts v. Lead Co., 95 Mo. App. 581. (9) Whether the money was turned over to Gardner upon a contract, either express or implied, under which he was to purchase the real estate and build a hotel thereon at a cost of $725,000, or whether, as claimed by plaintiff, it was turned over to him for the purpose of purchasing a lot for plaintiff and for the purpose of paying off an alleged deed of trust, if it was shown, as we claim it was, that the false representations made by Gardner to the plaintiff were the superinducing cause of entering into either contract, then plaintiff was entitled to recover, under the form of action of money had and received, all such sums of money that did not go into the purchase of the lot, or which were not by Gardner applied upon the alleged contract to build said hotel, but appropriated to his own use; and this without any rescission of contract. 27 Cyc. 863, 866; Note to Martin v. Hutton, 36 L. R. A. (N. S.) 603; Johnson v. Continental Ins. Co., 39 Mich. 33; Wilson v. Ranch Co., 22 C. C. A. 244; Lockwood v. Kelsea, 41 N. H. 185; Stout v. Caruthers Hdw. Co., 131 Mo. App. 220. (10) The action for money had and received was an appropriate remedy for moneys obtained by the deceit and fraudulent representations of the defendant and no rescission was necessary. Richardson v. Drug Co'., 92 Mo. App. 515; Henderson v. Koenig, 192 Mo. 690; Brooks v. Church, 128 Pa. St. 408; Note to Weber v. Lewis, 35 L. R..A. (N. S.) 364.

      Marion G. Early for intervener.
    (1) The burden is upon appellant to establish error, as all presumptions are indulged in favor of the judgment in the lower court. Rankin v. Railroad, 150-Mo. App. 32. (2) The judgment of the lower court directing a verdict is supported by incontrovertible evidence and the inconsistent, contradictory oral testimony when opposed to physical law and facts is without probative force. Shipley v. Railroad, 144 Mo. App. 7; Dillv v. Railroad, 55 Mo. App. 123. (3) Upon the admitted facts appellant acquired 1,500 shares of stock in a corporation, which at the time was the owner of property on which $20,000 cash had been paid and many other expenditures made for the benefit of the company. Appellant over his own signature had certified that the stock was one-half paid. The stock admittedly was therefore of value and a rescission of the contract of sale was a condition precedent to his right of recovery in this action. Blount v. Spratt, 113 Mo. 48. (4) Appellant testified that when he signed the agreement for the purchase of the 1,500 shares of stock on November 1, 1906, he did so deliberately without any intention of paying anything for it, and for the sole purpose of securing to himself the title to the property. His purpose was therefore admittedly fraudulent. A court will grant no relief under such circumstances. The court should leave him where it found him. King v. Ordway, 73 Iowa, 735. (5) The reply admits that the stock was retained and has never been tendered back. A conditional tender is no tender at all. Upon the admitted facts the sale of stock is binding upon appellant, and the contract being in full force nothing is due from Gardner to appellant, and the court was correct in declaring that appellant was not entitled to recover. • Gerardi v. Christie,. 148 Mo. App. 75. (6) It was immaterial whether or not Gardner was worth a large sum of money. There is no averment that he agreed personally to bnild the hotel. It was immaterial whether the title was in the name of- Gardner or some other trustee for the corporation. (7) Upon the record the judgment is for the- right party. The evidence of the Gerardis is entitled to no weight being in conflict with undisputed facts and necessary condusions. Comm. Co. v. Aaron, 145 Mo. App. 307. (8) The pleadings filed by appellant admit the execution of the instrument dated November 1, 1906, the delivery to and continued retention by him of the certificate for 1500 shares of stock and his fraudulent intent not to pay a cent of what he agreed to pay. His position was the result of his own fraud, and the lower court properly held he was not entitled to recover. Bell v. Campbell, 123 Mo. 1; Morrison v. Juden, 145 Mo. 282. (9) The pleadings and testimony offered by plaintiff recognize the necessity of the avoidance by appellant of the agreement of sale dated November 1, 1906, to entitle him to recover. The case was tried upon that theory, and it will be disposed of by this court on the same theory upon which it was tried in the court below. Manzie v. Galdenberg, 149. Mo. App. 12; Hume v. Hale, 146 Mo. App. 659.
   WOODSON, P. J.

The plaintiff instituted this suit in the circuit court of the city of St. Louis; the first count was to recover the sum of $36,702.79, for money had and received, and the second, to set aside and cancel a certain written instrument, dated St. Louis, Mo., November 1, 1906, “certifying” that the defendant had sold to plaintiff 1500 shares of stock in the Monarch Realty and Building Company, for the sum of $30,000, a part of the money mentioned in the first count, and signed by both plaintiff and defendant, which will be presently copied in full.

The suit grew out of an alleged fraudulent scheme, on the part of defendant Gardner, to defraud the plaintiff out of said money, which will subsequently appear from a summary of the pleadings.

Pending the litigation, the defendant went into bankruptcy, and defendant Femmer, the trustee in bankruptcy, was substituted for the defendant Gardner, and the suit has ever since been conducted against him as such trustee.

A trial was had before the court and jury, and at the close of the introduction of the plaintiff’s evidence, the defendant asked an instruction in the nature of a demurrer, telling the jury that the plaintiff was not entitled to a recovery, which was by the court given. Thereupon the plaintiff took a nonsuit with leave to move to set the same aside. Said motion having been overruled, the plaintiff duly appealed the cause to this court.

The sufficiency of the pleadings is in no manner ■questioned, and for that reason only a summary of them will be set out for the purpose of outlining the issues.

After a careful reading of the petition, answer and reply, we are satisfied that the abstract thereof, made by counsel for the plaintiff, is substantially correct, and we will adopt it for the purposes of this case, which is as follows (formal parts omitted):

“The petition states a cause of action essentially for money had and received, seeking a rescission of a contract upon the ground of false representations.
“The averments are that the defendant, with intent to deceive, defraud and cheat the plaintiff, falsely and fraudulently represented and stated to plaintiff:
“(1) That he, defendant, was possessed of and owned at the time bonds of the amount of $150,000' issued by the Federal Government, commonly known as Government bonds, in his own right.
“ (2) That the defendant had at the time cash on deposit in the Commonwealth Trust Co., a banking •corporation, in the amount of $50,000.
“ (3) That he, defendant, lived in his own house which was worth the sum of $50,000.
“(4) That he, defendant, had at the time agreed with the Commonwealth Trust Co., and the said trust company had agreed with defendant, to furnish defendant the sum of $600,000 for the purpose of financing and building a hotel on the lot described in the petition.
“(5) That on the 27th day of September, 1906, the defendant falsely and fraudulently represented to the plaintiff that he, defendant, had agreed to purchase a lot or parcel of ground, described in the petition, for the sum of $115,000, and that the defendant had given his personal check for the sum of $20',000 as earnest money or part purchase money of said lot.
“(6) That on October 8, 1906, defendant falsely and fraudulently represented to plaintiff that there was a note or notes secured by deed of trust upon said property for $16,500, and that the said note or notes were due and the holder thereof demanded payment thereof.
“And the petition avers that all of said representations were untrue and were known to be untrue at the time they were made, and that they were made by the defendant to the plaintiff, and that plaintiff relying upon said representations, and not knowing to the contrary, advanced defendant two sums of money, one on September 27,1906, of $18,702.79, and one on October 8, 1906, of $18,000.”

The answer was:

“(1) A general denial.
“(2) New matter in which the defendant claims that on September 24, 1906, he agreed with plaintiff that plaintiff should purchase the property described in the petition for $115,000, and that the plaintiff and defendant should organize a corporation to be known as the Monarch Eealty & Building Co., with a capital stock of $600,000, and that the said corporation would issue bonds and the defendant would sell the same, and that with the proceeds of the bonds the defendant would erect a hotel, the total cost of which was to be $725,000, and that as compensation therefor to the defendant he should have one-half of the capital stock of said corporation, and that the interest on the said bonds should be secured by a lease from the said Monarch Realty & Building Co. to the Joseph Gerardi Hotel Co. for a term of thirty years, at an annual rental of $60,000, payable $5000 per. month, and that the defendant should spend all of his time in the negotiation of said bonds, the erection of said hotel and the promotion of said enterprise, and that the defendant should have for his services five per cent commission in addition thereto; that pursuant to said contract the lot described in the petition was purchased at $115,000, and that the defendant paid the sum of $20,000 thereon; that the sum of $18,702.79 received by defendant on September 27, 1906, was received by him as part payment upon said enterprise; that pursuant to said agreement the said corporation was organized, the plaintiff subscribing for 2500 shares, the defendant for 2500 shares, and Geo. E. Beal for 1000 shares of the capital stock of said corporation; that after the organization of said corporation, and the payment of said sum of $18,702.79, plaintiff refused to go further with said enterprise, because he did not have the majority of the capital stock, but that the defendant had already incurred expense in excavating said lot; that thereupon and on October 8,1906, the defendant agreed with plaintiff to sell to plaintiff for $30,000, 1500 shares of the capital stock he had subscribed for; that the $18,000 paid to defendant on October 8, 1906, was paid to him under said agreement to purchase 1500 shares of his subscription to said capital stock, and that the plaintiff now owed him under said purchase the additional sum of $12,000, which the defendant now pleads as a set-off or counterclaim,' and that the defendant claims an additional and further counterclaim of $6000 expended in the excavation of said lot.
“(3) In further new matter by way of defense defendant claims that the judgment rendered in the case of Rookery Realty Loan, Investment & Building Co., plaintiff, v. Harvey L. Christie, Trustee, and Leonidas S. Mitchell, defendants, by the circuit court of the city of St. Louis, the object and purpose of which was to cancel a deed of trust upon the property described in the petition alleged or claimed to have been paid, was res adjudicate/, of the cause of action stated in plaintiff’s petition, for the reason that plaintiff and defendant herein were privies to said proceeding for the cancellation of said deed of trust.
“ (4) For further defense by way of new matter the defendant pleads that the plaintiff herein, by reason of the alleged contract of sale of 1500 shares of the capital stock of the Monarch Realty & Building Co., by the defendant to him, and the payment of $18,000 upon said purchase, plaintiff is estopped from ‘questioning the validity of said transaction.’
“(5) By way of defense as new matter defendant again pleads as an estoppel of plaintiff and the cause of action contained in the petition, the judgment rendered by the circuit court of the city of St. Louis on, to-wit, February 8, 1908, in the ease of Rookery Realty, Loan, Investment & Building Co. v. Harvey L. Christie, Trustee, and Leonidas S. Mitchell, alleging and claiming that both plaintiff and defendant were privies to said judgment.”

For reply to the new matter contained in defendant’s answer plaintiff alleges:

“(1) A general denial.
“(2) That the alleged or claimed contract under date of November 1, 1906, relied upon in defendant’s answer, upon which he claims an estoppel and out of which he claims arises a counterclaim of $12,000, was obtained from plaintiff in this, that the defendant, contrary to instructions and agreement between plaintiff and defendant, procured the conveyance of the title to the property described in the petition, in his own name; that he refused to convey the title to plaintiff unless the plaintiff would sign said alleged or claimed contract for the purchase of said 1500 shares of stock; that the said stock was wholly worthless, for the reason that no part of the capital stock of said corporation was ever paid by or to the parties organizing said corporation and that the corporation was wholly without property; that about the time said alleged or claimed receipt for the sale of said stock was signed by plaintiff he discovered that defendant’s representations that he had $50,000 deposited in the Commonwealth Trust Co., that he owned $150,000 of Government bonds, and that he owned his own residence of the value of $50,000, were wholly false and untrue; and that the representation that the defendant had, out of his own funds, paid $20,000 for the purchase of said real estate, was false and untrue, and that in consequence of the discovery of said false statements, tinder which defendant had procured plaintiff’s money, plaintiff was afraid of losing his property; that while the defendant agreed with plaintiff to convey said property to the Monarch Realty & Building’ Co., in which corporation he proposed to transfer to said Gerardi said stock after said receipt was executed, nevertheless, defendant executed a deed of trust and placed the same upon said property in favor of James P. Gardner, his brother, in the sum of $600,000, and thereafter conveyed the equity in said property to said Monarch Realty and Building Co., which rendered said equity wholly worthless, because of said property thereby being incumbered for a sum'far in excess of any possible value thereof; that although said stock was wholly worthless the same was tendered back, if a tender was necessary, and the same was brought in court and tendered to defendant.”

The evidence, as usual in such cases, is very voluminous, covering some four hundred printed pages. The substance of which, was testified to by the plaintiff and his father, Joseph Gerardi, Sr., and his mother, Annie Gerardi, and some ten or twelve other witnesses, whose testimony more or less corroborated the testimony of the Gerardis.

Their testimony tended to prove that the plaintiff, his father and mother, conceived the idea of purchasing the lot mentioned in the petition and to organize a corporation to which the lot should be conveyed, and which thereafter should be financed for the purpose of constructing a hotel building thereon. This was only talk — no contract was entered into between them, at that time.

About September 22,1906, Joseph Gerardi, Sr., was introduced to defendant as a contractor and builder. In the course of their conversation said Gerardi mentioned to defendant his desire to purchase said lot for the purpose previously mentioned.

That about September 24,1906, the defendant met the Gerardis at the Grand Avenue Hotel, which was then being conducted by them. At this meeting Joseph Gerardi, and his wife, Annie Gerardi, and the defendant, Gardner, were present. At this meeting all three of them canvassed the situation fully.

The Gerardis told defendant what their scheme was, namely, that they wanted to purchase the lot mentioned in the petition, provided it did not cost more than $115,000, which was to be paid for by the plaintiff, incorporate the realty company, and convey the lot to it for a recited consideration of $250,000, and then bond the property for $600,000 for the purpose of procuring the necessary means with which to construct the hotel building.

At this meeting defendant told them that he would like to go into the scheme with them, and that he was perfectly able to carry out the proposition; that he was a large contractor and builder, and a man of large means; that he had $50,000 in cash and $150,000 in United States bonds on deposit in the Commonwealth Trust Company, and owned and was living in a house that cost him $50,000; and that he could float the $600,000 of bonds.

That in pursuance to their conversation and those representations made by the defendant, they entered into an agreement practically as follows:

That defendant was to purchase the lot mentioned for a sum not to exceed $115,000 and to have the title conveyed to Joseph Gerardi, Jr., the plaintiff (all understanding that the whole transaction was to be done in his name and for his benefit).

That the realty company mentioned was to be incorporated and said lot was to be conveyed to it for a recited consideration of $250,000; that the corporation was to have a capital of $600,000', to be represented by 6000 shares of stock of $100 each; that the company was to borrow $600,000, with which to erect the hotel building, which the defendant said he had made arrangements for, and agreed to float the bonds; that the company was to construct the hotel building and lease it to plaintiff for thirty years, at an annual rental of $60,000, $5000 payable monthly.

That in consideration of this agreement and the services to be performed by the defendant, the company was to issue to him 2500 shares of the capital stock of the realty company. Plaintiff was to have 2500 shares of the stock and George E. Beal, the third one of the organizers, was to have the remaining 1000 shares.

That in pursuance to this contract, defendant, on September 27, 1906, went to the Grand Avenue Hotel and stated to Annie Gerardi, that he had purchased the lot for $115,000 and had taken the title in the name of the plaintiff, and that he, the defendant, had paid ont of his own funds, $20,000 of the purchase money and that he would turn the deed over to plaintiff. Later, on the same day, he repeated that statement to the plaintiff and his father, Joseph Gerardi, Sr.

Later in the day, the mother of plaintiff turned over to defendant a certificate of deposit in the National Bank of Commerce, dated July 6, 1906, for the sum of $18,702.79, payable to Joseph Gerardi, Jr., and took from defendant the following receipt:

September 27th, 1906.
Received of Mrs. Annie Gerardi one certificate for $18,702.79', the same to be payment on Kingshighway and Maryland avenue ground, dimension 215 feet on Kingshighway and 150 feet on Maryland avenue.
Harry B. Gardner.

Upon September 27, 1906, the defendant took this certificate of deposit to the Commonwealth Trust Company and obtained a cashier’s check for $5000, payable to the order of "Weisels-Gerhardt Real Estate Co., one of the agents through which the sale was made, as earnest money, and deposited the balance thereof, less a discount, $13,287.19, to his individual account.

On the next day, September 28th, the defendant entered into a written contract with the Euking Realty Co., another agent through which the sale was made, in his own name for the purchase of said property, which is- as follows (formal parts omitted):

St. Louis, Mo., September 28th, 1906.
Received of Harry B. Gardner, through Weisels-Gerhart Real Estate Company, Agent, the sum of five thousand dollars, as earnest, the same to be retained and applied as part of the purchase money for the sale of the following described realty, lying and being situate in the city of St. Louis and State of Missouri, and described as follows, to-wit:
“A lot in city block numbered 2882 of the city of St. Louis, fronting 225 feet, more or less, on the east line of Kingshighway Boulevard, by a depth eastwardly of 150 feet along the north line of Maryland Avenue, and by a depth, eastwardly along the north line of said lot of 180 feet. The northern 10 feet of said property being subject to an easement or right of way for the free use and benefit of the owners of property abutting on the north line of Maryland avenue in said city block, for alley purposes. The price for which said real estate is this day sold being one hundred and fifteen thousand dollars, on the following terms; Twenty thousand dollars cash, less the earnest money, hereby received, and the remainder shall be paid as follows, to-wit: the purchaser herein shall assume the payment of a certain deed of trust dated September 25, 1905, executed by Thomas P. Plumeridge to secure one note for the sum of forty-seven thousand five .hundred dollars, payable three years after date with interest at the rate of five per cent per annum, payable semi-annually, and shall also assume the payment of second deed of trust dated September 29, 1905, executed by L. I. Finegan for the sum of twenty-five hundred dollars, payable one year after date with interest at the rate of five per cent per annum, payable semi-annually; both of which said deeds of trust are now on said property hereinabove described. The purchaser shall also execute and deliver one principal note for forty-five thousand dollars, payable on or before thirty days from this date with interest at the rate of six per cent per annum and eight per cent per annum after maturity, to be secured by a regular balance of purchase money deed of trust upon the property sold.
General warranty deed to be given, except for the taxes for the year 1907 and thereafter, which the purchaser assumes and agrees to pay, and also excepting the easement of right of way above mentioned, and also excepting the above described deeds of trust.
The title to said property to be perfect, free from all encumbrances, liens or clouds, except as aforesaid; and in the event after an examination thereof the same should prove imperfect, and cannot be perfected within a reasonable time, then, and in that event, the earnest money hereby received to be returned to the purchaser herein, together with the cost of examination of title, and this agreement to be canceled.
Sale to be closed on or before Monday, October 8th, 1906, at the office of the Weisles-Gerhart Real Estate Company, 104 North Eight street, city and state aforesaid, and if not closed by said time, provided that all the stipulations and conditions herein contained have been complied with on the part of the undersigned seller herein, then the earnest money hereby received to be forfeited to the seller herein.
In Witness Whereof, the parties hereto have signed this agreement in duplicate originals the day and year first above written. Interest on encumbrances to be apportioned from date of deed.
This contract is made subject to owner’s approval, and when so approved is binding on both parties hereto.
Euking Realty Company,
By L. B. Pierce, President.
Signed at 4 p. m. September 28, 1906.
Approved and accepted:
C. B. Gardner.
This proposition to be either accepted or rejected on or before five o’clock p. m. today.
Deed to be made to ............................
Grantor’s full name ...............................
Grantor’s husband or wife’s name ................
Check No. 2721. St. Louis, October 8th, 1906.
Received of Weisels-Gerhart Real Estate Co., Statement of Account to October 8th, 1906, which has been duly examined and approved as correct, showing a balance due from Weisels-Gerhart R. E. Co., of eleven thousand seven hundred and seventy-nine and 11-100 dollars, check for which has this day been received in settlement. In re-sale of 225 feet northeast corner Kingshighway Boul. and Maryland avenue, C. B. 2881, to Harry B. Gardner, under contract dated September 28th, 1906.
Euking Realty Company.
By L. B. Pierce, President.
$11,779.11.
No. 331.
Euking Realty Co. to Harry B. Gardner.
N. E. Cor. Kingshighway and Maryland Ave.
Date 9-28-1906. _

That from September 21, 1906, to September 27th, same year, defendant’s deposit in said Trust Company was only $6.47.

That on September 29, 1906, the defendant gave a check on said Trust Company in favor of the American Tile & Slating Co. for'$265, “in full of tile roofing on Kingshighway and Raymond avenue house.” (The same being the $50,000 house he represented to plaintiff that he owned and was living in.) On the same day he drew another check on said Trust Co. in favor of Thiebes-Stierling Music Co. for $251.75 and another in favor of W. A. Goodwin for ninety dollars. That on October 1, 1906, he drew a check on said trust company in favor of himself for $500; on October 2nd, another in favor of BoecMer Lumber Co. for $229.46; on October 3d, another in favor of William Johnston for $3.55, on face of which was written, “Payment in full for gas pipe on third floor Kingshighway and Raymond Place; ’ ’ and on same day one in favor of W. A. Goodwin for $125, on the face of which was written, “Payment in full for Georgia Marble and work for balance on account of Kingshighway and Raymond, place; ” on October 4th, one in favor of Summer & Felter for $16.90; on October 5th, one in favor of Yan Nort Bros. Electric Co., for $100, on the face of which was written, “Payment on electric work on contract of H. B. Gardner, for Kingshighway and Raymond.”

. The evidence also tended to show that defendant used the remainder of said deposit for his own personal account, in paying for labor and materials furnished for said residence on Kingshighway and Raymond Place and for other purposes not necessary to mention.

On the 6th or 7th day of October, 1906, the defendant telephoned to Gerardi, Sr., and his wife that there was a note for $16,500 secured by a deed of trust then due on the property he said he had purchased for the son, and that it had to be paid by October 8, 1906, either the next or second day thereafter. On the last named date Gerardi and wife went to the Fourth National Bank, taking with them some certificates of deposit in favor of the plaintiff, and thereon borrowed the sum of $18,000, which they deposited in said bank and drew a check therefor in favor of the Jos. Gerardi Hotel Co. which was endorsed by it and by Anna Gerardi and Harry B. Gardner, and delivered to the latter the defendant, for the purpose of paying him the difference between the $18,702.79 which had been given to defendant by Gerardi, Jr., on September 27, 1906, as previously stated, and the sum of $20,000 he said he had paid out of his individual funds for the property on that date, and also for the purpose of paying off said note and deed of trust for said $16,500 just mentioned. Upon the receipt of this check, defendant said to Mr. and Mrs. Gerardi, that $18,000 was too much, that it was more than he needed, and immediately drew a check in favor of the said Hotel Company for $500, and handed it to them.

On the same day, October 8th, defendant deposited the $18,000 check in the Commonwealth Trust- Co. to his individual credit.

On the same day, defendant went to Weisels-Gerhart Real Estate Co., the agents through whom he had negotiated the purchase of said property, and paid them the sum of $13,473.62, by a check drawn on said Trust Co'., which was the balance, less some commission allowed defendant by the said Real Estate Company, of the $20,000 due as the first payment to be made on said property as provided for in the contract of purchase dated September 28th, 1906, previously copied herein; and at the time of paying said $13,473.62, defendant received from the Euking Realty Co., through Weisels-Gerhart, its agent, a deed conveying said property to himself and he gave his note for $45,000, the balance of the purchase money, there being a deed of trust for $47,500 on the property, which defendant assumed to pay; and secured the same by deed of trust on the property which he had recorded.

That upon the delivery of the $18,000 check by the Gerardis to defendant, on October 8, 1906, he promised them that he would pay off said note and deed of trust for $16,500, and have the same acknowledged, satisfied of record and deliver it to them, together with the deed to the property, which he told them he had taken in the name of Gerardi, Jr., at the time he purchased it.

That the Gerardis took no receipt for the last $18,000 check given to defendant, for the reason, they testified, that they thought the checks, the deposits and deed of trust to be returned, would be a sufficient receipt therefor.

The Realty Company was incorporated October 7, 1906, and H. B. Gardner, George E. Beal and Joseph Gerardi, Jr., were the organizers and each received the number of shares of stock previously stated.

Upon the receipt of the charter a directors’ meeting was held and H. B. Gardner was elected president, Joseph Gerardi, Jr., treasurer, and George E. Beal, secretary.

The matter stood in this condition until about October 23rd, up: to which time defendant had not delivered the deed for the property to Gerardi or the supposed canceled note and deed of trust for the said $16,500, as he had agreed to do, when he received the check of October 8, 1906', for the $18,000, when the Gerardis became suspicious and had the matter investigated by counsel.

Upon investigation counsel ascertained that the representations, made to the plaintiff to the effect that he had purchased the property for $115,000, had paid $20,000 of the purchase money out of his own funds and that the title thereto had been conveyed to plaintiff, were wholly untrue; that at the time he received said certificate of deposit of $18,702.79 from .the plaintiff, as a partial' reimbursement of the $20,000 he represented to plaintiff he had paid on the purchase price of the lot, he had not even entered into the contract of purchase; that subsequently, when the contract of purchase was entered into, it provided that the title thereto should be conveyed to him, the defendant, instead of the plaintiff, as was agreed to; also that, there was no note and deed of trust for $16,500' against the land, as defendant represented, and which he said had to be paid on or before October the 8th, for the payment of which the plaintiff gave to defendant the check for fhe $18,000 previously mentioned.

Upon learning these facts the plaintiff repeatedly demanded of the defendant a return of the $36',702.79 he had advanced to him, but he, as often as requested to return the money, declined to so do; and finally, after proposing several schemes of settlement, instead of returning the money, the defendant proposed to plaintiff that he would convey the property to the Real Estate Company and transfer to him, Gerardi, Jr., 1500 shares of his stock in said company, provided he would sign the receipt or “certificate” dated November 1st, previously mentioned, and to be presently set out. That after considering the proposition, and after consulting with his attorney regarding the matter, plaintiff signed said receipt or contract, which is as follows:

St. Louis, November 1st, 1906.
This is to certify that 1 have sold aud delivered to Joseph Gerardi, Jr., certificates number one for fifteen hundred shares of the capital stock of the Monarch Realty and Building Company, said shares being a part of my original subscription of twenty-five hundred, for the sum of thirty thousand dollars, the receipt of which I hereby acknowledge as full consideration therefor.
Harry B. Gardner,
Joseph Gerardi, Jr.

That plaintiff never paid defendant the $30,000 mentioned in the receipt or any part of it, and never intended to so do, as plaintiff testified that it was intended to release defendant to that extent from his liability to him, the plaintiff, for the $36,702.79' procured from him in the manner previously stated and in pursuance to the terms of the settlement just mentioned, and for which the receipt was given.

That in violation of said settlement, evidenced by said receipt of November 1st, the defendant executed a deed of trust on said lot, dated October 19, 1906, in favor of his brother James P. Gardner, to secure the' sum of $600,000, but not acknowledged until November 5, 1906, at 10:20 a. m., five days after the date of the receipt, and was not recorded until February 14, 1907.

That plaintiff had no knowledge of the existence of this deed of trust or its recordation until some time after he signed the “certificate” of November 1, 1906.

That defendant, by a general warranty deed, dated October 19, 1906, conveyed said property to the said Real Estate Company, acknowledged October 30, 1906, and filed for record by him on November 5, 1906, at 10:25 p. m., just five minutes after he had recorded the deed of trust for $600,000 to his brother.

That the said Real Estate Company never had any property ‘or means whatever, except this property which was conveyed to it by the defendant on November 5,1906, subject to the two deeds of trust of $45,000 each and a small' interest note of $2000 or $3000 and the one for $600,000 payable to defendant’s brother,. James P. Gardner, which property was not worth more than $150,000 at the outside.

That defendant never built the hotel he agreed to, nor sold any of the bonds he agreed to float. In fact, they were never issued, nor had defendant made any arrangement for their issuance.

That the title to the residence defendant represented to the plaintiff that he owned, was living in and was worth $50,000, was in his wife; that he did not own any United States bonds as represented by him; and instead of having $50,000 in cash deposited in the Commonwealth Trust Company, he had only $6.47 deposited therein.

The defendant introduced no evidence, but in the cross-examination of plaintiff’s witnesses, in connection with the written instruments introduced by him, counsel for defendant insist that plaintiff’s own evidence shows that he is not entitled to a recovery.

This insistence grows chiefly out of the receipt or bill of sale dated November 1, 1906', wherein it is recited that defendant sold to plaintiff 1500 shares of his stock for $30,000, to -which he adds, if I understand the record, certain commissions he claims, expenses incurred for plans and specifications', and costs of excavating a portion of the foundation for the hotel, making a total in excess of the amount of money received from plaintiff.

Counsel also asked plaintiff this question:

“Q. Isn’t it a fact, Mr. Gerardi, that on the 6th day of October, Mr. Gardner wrote out a paper, and I will read it to you, and see if you can recall it. This paper that I refer to, Mr. Gerardi, was written out as a memorandum, written on a blank form of check, I think on the Mississippi Valley Trust Company, and written by Mr. Gardner, and is as follows: ‘October 6, 1907. I will carry out the agreement. Gerardi is to pay a hundred and fifteen thousand dollars for the ground and thirty thousand dollars for stock. I guarantee to furnish six hundred thousand dollars of mortgage bonds to build a hotel with. Harry B. Gardner. ’ Then on this side is: ‘Mrs. Gerardi and son agree to pay me thirty thousand dollars for a hundred and fifty thousand of Monarch Eealty & Building Company’s stock. By first agreement Gerardis agreed to' pay a hundred and fifteen thousand dollars for the lot, or a hundred and forty-five thousand dollars. Gerardis get forty-nine hundred and ninety-five shares, I get one thousand shares and Beal gets five shares. I am to build a hotel and get six hundred thousand dollars first mortgage bonds for it. Harry B. Gardner.’ Hid you ever hear of a paper to that effect?”

To which he answered, “No, sir.”

This paper was not offered in evidence; and after refreshing his memory plaintiff stated that he remembered the paper and that he thought it was introduced in evidence at a former trial; and I judge it was introduced by his attorney; however, this is not quite clear, but I will treat it as so offered by him for the purposes of this case.

There was other evidence introduced hearing upon the relations that Beal bore to the plaintiff and defendant, hut that evidence has no special bearing upon the questions involved in this appeal, but relates specially to the cross-bill filed by the defendant, which was by him dismissed, and therefore it would be useless to incumber this statement with that evidence.

Such additional evidence as may be necessary to properly present the legal propositions involved will be stated in connection therewith in the opinion.

I. There are but two legal propositions of any importance presented by this record-, and they are: first, was. the evidence sufficient to set aside £he receipt or bill of sale dated Novem- . . ber 1, 1906', read m evidence? and, second, was there sufficient evidence introduced by the plaintiff to carry the case to the jury?

For convenience, we will consider those propositions in the inverse order in which they are stated.

(In order to make the evidence intelligible, it should be borne in mind that all of the Gerardis were acting for and in behalf of Joseph Gerardi, Jr., the plaintiff.)

Begarding the second: The plaintiff’s evidence tended to show, and for the purpose of this case the defendant’s demurrer thereto admits its truthfulness,, that Joseph Gerardi, Jr., prior to his meeting the defendant, had under consideration the purchase of the lot of ground described in the petition and mentioned in the evidence, with a view of organizing a corporation, conveying the lot to it, and constructing a hotel building thereon, to be leased by it to him for a period of thirty years, at a rental of $60,000 per annum, $5000 payable monthly.

After having formulated the general scheme of the proposition, the father of plaintiff, by chance, as I take it, met the defendant in the Grand Avenue Hotel, and was introduced to him as a contractor and builder. This introduction suggested tbe hotel scheme young Gerardi had in mind, and the father mentioned it to-the defendant, who immediately became interested therein; and by mutual understanding they entered into a discussion of the scheme in detail.'

After thus discussing the proposition, defendant stated in substance that he would consider the proposition; and about September 25; 1906, the defendant called upon the Gerardis and told them that he would like to undertake the execution of the scheme previously mentioned, upon the terms and conditions to be presently stated.

That- as an inducement for plaintiff to enter into the contract with the defendant, the latter represented to the former that he was a large contractor and builder, and had constructed large buildings in St. Louis and Chicago, and was fully capable of building tbe hotel the plaintiff had in mind. That he was also-financially able to carry the plan; into execution, in that he had a deposit in the Commonwealth Trust Company of St. Louis of $50,000 cash and $150,000 in United States bonds; that he owned and was residing in a house that cost him the sum of $50,000 and that he had made arrangements with said Trust Company to float the $600,000 worth of bonds, the proceeds of which were to be used in the construction of the. hotel.

That relying upon the truthfulness of those representations the following oral agreement, in substance, was entered into between them:

That plaintiff agreed that the defendant should purchase the lot upon which the hotel was to be erected and have it conveyed to him, tbe plaintiff, provided it did not cost more than $115,000.

That be, tbe plaintiff, tbe defendant, and one Beal would organize a corporation under the name of the-Monarch Real Estate &. Building Company, with a capitalization of $600,000, divided into six thousand shares of $100 each. That plaintiff was to pay for the lot and convey it to the corporation for a recited consideration of $250,000. That the corporation was to issue $600,000 worth of bonds secured by a first deed of trust upon the lot and the hotel building to be erected thereon.

That defendant agreed to have the Commonwealth Trust Company float or sell said bonds, the proceeds of which were to' be used in erecting the building upon the lot. That the corporation was to lease the hofel building to the plaintiff for a period of thirty years-, at an annual rental of $60,000, payable in. monthly installments of $5000.

That the defendant agreed to float the bonds before mentioned, draw the plans and specifications for the hotel building in conformity to plaintiff’s ideas and construct the building according to said plans.

In consideration of this- agreement plaintiff and defendant were each to have 2500 shares of the capital stock of the corporation, and Beal was to receive 1000 shares thereof, not pertinent to the questions here presented.

We will now briefly mention the evidence which tends to show that the defendant made the false representations! with which plaintiff charges him as an inducement for entering into the contract and upon the strength of which he claims he parted with the money sued for.

The evidence not only tends to show, but the demurrer admits, that the defendant did not own the house in which he resided, and which he said was worth $50,000; that he had no United States bonds deposited in the Commonwealth Trust Company or elsewhere, so far as this, record shows; nor did he have deposited therein the sum of $50,000 in cash, as represented by him, but in truth and fact, he had only $6.47.

The demurrer to the evidence admits that these representations were made; that they were relied upon and that they were false, and consequently he was not able to perform his part of the contract. Not only that, the evidence for the plaintiff tends to prove the grossest kind of a fraud perpetrated upon plaintiff, arising or descending, as yon may choose to term it, to a “ confidence game ’ ’ of the filthiest water, in this: the plaintiff, relying upon the financial standing and ability of defendant to perform his part of the contract, orally instructed him to purchase the lot mentioned, for him, for a sum not to exceed $115,000, and to take the title thereto in his, the plaintiff’s, name, which he agreed to do. That subsequently he reported to the plaintiff that he had purchased the property for $115,000, and had it conveyed to him, the plaintiff, and that he, the defendant, had with his own funds, paid the sum of $20,000' as part of the purchase money thereon, all of which was false.

In order to partially reimburse defendant for the $20,000 he represented to the plaintiff he had so paid on said lot, the plaintiff indorsed .to him a certificate of deposit on the National Bank of Commerce, for the sum of $18,702.79, and took his receipt therefor.

The evidence is undisputed that at that time, September 27, 1906, the defendant had neither purchased said lot, nor had he paid said $20,000 or any other sum for the plaintiff as a part of the purchase price thereof. As a matter of fact, he never purchased said lot until September 28, 1906, as shown by the written contract introduced in evidence and copied in the statement of the case.

Moreover, said contract shows that when he, the defendant, entered into the contract of purchase, if provided that it should be conveyed to the defendant instead of the plaintiff, as the former was instructed and agreed to do.

Not only that, the contract shows that he only paid $5000 of the purchase price of the lot and expended the remainder of the $18,702.79 he received from the plaintiff, for his own personal benefit.

In addition, said contract shows that the defendant was to assume the payment of a $45,000 mortgage on the property, execute another for a like sum payable in thirty days, and $15,000, less some commissions defendant was allowed for negotiating the sale, was to be paid on or' before October 8, 1906.

In order to meet this $15,000 payment, the defendant telephoned the plaintiff and falsely stated that there was then due and unpaid a mortgage of $16,500 on said lot, which had to be paid on or before said 8th. day of October.

The plaintiff believing said statement to be true, gave defendant a check, as before explained, for $18,-000, for the purpose of paying off and discharging said mortgage, and to pay him the difference between the $20,000 he falsely represented to plaintiff he had paid September 27th on said purchase price,' and the amount of the certificate of deposit he indorsed and delivered to defendant on that day for $18,207.79.

Upon the receipt of the check for the $18,000 dated October the 8th, defendant stated to plaintiff that hedí d not need that amount of money, for the two purposes above mentioned, and gave back to him a check for $500.

The defendant then took the $18,000 check and deposited it in the Commonwealth Trust Company and then drew a check in favor of the Weisels-Gerhart Real Estate Company, for the sum of $13,473.62, being the balance of the $20,000, due on the first payment under the contract of purchase, less a commission which, was allowed by that company to the defendant for his assistance in negotiating the sale of the lot.

The plaintiff testified that he took no receipt from defendant for this $18,000, for the reason that at the time of the delivery of the check, defendant said to him that he would cash the check and with the proceeds thereof pay off said mortgage and return it and the deed to the property to him, which defendant had previously stated to plaintiff had been previously conveyed to him, all of which plaintiff said he thought, would be a sufficient receipt for the money.

But be that as it may, there is no question but what defendant received this $18,000, just as he did the $18,702.79, on September 27th, and instead of paying off the fictitious mortgage for $16,500, with the proceeds thereof, the falsely alleged purpose for which he procured the money, he went to Weisels-Gferhart Eeal Estate Company as previously stated and paid therewith the- balance of the $20;000 due October 8th, under said contract of purchase; thus showing conclusively that defendant by false and fraudulent representations procured from plaintiff $36,702.79, less the $500 check he gave to plaintiff before mentioned.

I say false and fraudulent representations, for the reason that defendant procured said $36,702.79 from plaintiff upon the false representation that he had purchased the lot for the latter and that the deed thereto conveyed the lot to the plaintiff. By those-false and fraudulent representations he procured from plaintiff the $36-,702.79 and used the same in making the first payment, $20,000, due upon the lot, which he had purchased for himself instead of for the plaintiff, and the balance thereof he expended for work performed and materials furnished upon and for the use of the $50,000 residence his wife owned, but which he represented to plaintiff he owned.

This is as clean cut. case of fraud and confidence game as I ever read of.

We are, therefore, clearly of the opinion that the evidence made a prima-facie case for the jury.

II. If we correctly understand the position of counsel for defendant, they do not seriously controvert any of the material matters and things stated, and upon which our conclusions in paragraph one of this opinion are based, but seek to escape the legal effect thereof by contending’ that the whole matter was adjusted and settled by virtue of the written instruments dated October 6, 1906, and November 1, 1906, respectively, and read in evidence and set forth in haec verba in the statement of the case.

The former starts out with the frank statement that “I [the defendant] will carry out the agreement,” referring to his original contract to construct the hotel building, etc., provided the plaintiff would pay the sum of $115,000 for the lot, and $30,000 for stock (to whom? Presumably to plaintiff). In consideration of which defendant ‘ ‘ guaranteed to furnish six hundred thousand dollars of mortgage bonds to build a hotel.” Exactly what he had agreed to do under the original contract, and before he had fraudulently procured from the plaintiff said $36,702.79.

So far, I suggest there is not much consideration to support this- contract (in fact it is $36,702.79 less than nothing) if it may be so called, as it was written upon the back of a blank check of the Mississippi Valley Trust Company and only signed by the defendant.

The remainder of this alleged contract, which was written on the other side of that blank check and signed by defendant alone, has no special bearing upon the questions under consideration, but relates more particularly to the interest of Beal, and a repetition of some of the facts purporting to have been agreed to, as stated on the other side of this check; also a recitation of some of the facts agreed to in the original contract, as well as the number of shares- that he and Beal were to receive under the modified agreement, Which, as previously stated, has no particular bearing upon the questions here presented; but whether it does or not, it can in no manner affect the result to be reached.

The contract dated November 1, 190G, which constituted the basis of the second count of the petition and which prayed for its cancellation, deserves more serious consideration.

In passing, it may not be out of place to state that the circuit com t and counsel for both parties, as I understand the record, treated this contract more in the nature of a receipt than as a contract; but we will consider it as a contract and consider the evidence bearing upon its execution and see if it is sufficient to warrant this court in setting it aside for fraud as charged in the second count of the petition, notwithstanding the ruling of ■ the circuit court to the contrary.

For convenience, I will reproduce said, contract at this place:

“St. Louis, November 1, 1906'.
“This is to certify that I have sold and delivered to Joseph Gerardi, Jr., certificate number one for fifteen hundred shares of the capital stock of the Monarch Realty and Building Company. Said shares being a part of my original subscription of twenty-five hundred, for the sum of thirty thousand dollars, -the receipt of which I hereby acknowledge as full consideration therefor.”

(Then follow the signatures of the parties.)

Practically all of the evidence bearing upon the execution of this contract consists of the oral testimony of the plaintiff and his father and mother; the defendant introduced no evidence at the trial.

The plaintiff’s evidence regarding tibe execution of this contract was substantially as follows:

That when defendant received from plaintiff the check dated October 8, 1906, for $18,000, he agreed to pay off the alleged mortgage of $16,500 and to deliver it to plaintiff with the alleged deed' conveying the lot to'him. Having received neither, plaintiff’s sleepy suspicions for the first time became aroused as to the fidelity of the great builder, the man of large means and a financier of great enterprises. This suspicion led plaintiff to employ the learned counsel who represents him in this case, to investigate the entire transaction, which clearly revealed the fact that plaintiff and his relations were a set of silly dupes, apparently needing a guardian to manage their business, much more than a hotel in which to cater to the public.

But be that as it may, the defendant again took advantage of their confiding cordiality, and according to defendant’s contention he sold to plaintiff a “gold brick” for $30,000, which was worth at the very lowest estimate $510,000- less than nothing; but according to plaintiff’s contention, when he discovered the base perfidy of defendant, he set about, under the advice of counsel, to save the wreckage which he thought was in sight, namely, the $20,000' out of the $36,702.79, which he had advanced to the defendant on the purchase price of the lot, which had been conveyed to the defendant, as previously stated.

The defendant, being equal to the occasion- and -with a design to retain his ill-gotten gains, refused to return to plaintiff the $36,702.79, or any part of it, but began to hatch different schemes, not in settlement of the barefaced fraud he had committed against the defendant, but to thwart any and all legal proceedings the plaintiff might take to redress his. grievous wrongs.

Bear in mind, the plaintiff, wanting to receive a conveyance of the lot from plaintiff upon which $20,-000 of his money had been paid upon the purchase price, suggested to defendant, after various schemes had been advanced by the latter, that if the defendant would convey the lot to him subject to the incumbrances thereon as shown by the contract of sale to defendant, dated September 27, 1906' (which he, the defendant, was both legally and morally bound to do, for the reason that he had purchased it as the agent of the plaintiff, and paid the first installment of the purchase price out of the money of plaintiff), and transfer to him 1500 shares of the stock of the Monarch Real Estate & Building Company, he, the plaintiff, would cancel and release $30,000 of the $36,702.79 the defendant had defrauded him out of.

Seizing upon this proposition to further consummate his fraudulent design, the defendant agreed to the proposition made by the plaintiff and drew up the contract of November 1st, previously quoted, reciting only a part of the terms of the settlement, namely, the sale of the 1500 shares of the stock to plaintiff for $30,000', but omitted to state therein that he was to convey to the plaintiff the lot in question without which the stock was not worth the paper upon which it was printed, as the corporation had.not a dollar or any means.

But in pursuance to said proposition, the defendant did convey said lot to the plaintiff five minutes after he had executed a deed of trust upon the same to his brother to secure a note for the sum of $600,000, the bona fides of which, in so far as the brother is concerned, is not questioned.

The incumbrances placed upon the lot by the defendant were many times- its- value, which of course rendered the value of the entire stock absolutely worthless, for the reason stated, that the corporation had' not a dollar of money or assets, except this lot, which, when conveyed to the company, was- incumbered for some $663,000', while it was not worth more than $150,-000 at the outside limit.

In short, the defendant has by his fraudulent representations obtained from plaintiff the sum of $36,-702Y9, less $500, cheek given by defendant to plaintiff on October 8, 1906', leaving a balance o'f $36,202.79'.

We are, therefore, of the opinion that the contract mentioned, dated November 1, 1906, should be set aside and for naught held, and it is so ordered;

III. Counsel for defendant finally insist that the plaintiff is not entitled to a recovery because he did not tender back to defendant the 1500 shares of stock mentioned in the contract of November 1, 1906.

There is no merit in this insistence, because they are not worth a cent, not even the paper upon which they are written.

But independent of that, the undisputed evidence conclusively shows that by his fraudulent representations, the defendant has procured from plaintiff $36,202.79, the lot in question, except the naked legal title, not worth a cent, and he still retains 1000 shares of the stock, while the plaintiff has received only 4000 shares of absolutely worthless stock, for the money advanced by him.

The judgment is reversed and the cause remanded with directions to the circuit court to retry the case in conformity to the views herein expressed.

All concur, except Bond, J., not sitting.