tem. Contestee's view is that the facts alleg- [ notice, contestant should have been allowed ed in the notice are not such as show a total the opportunity to introduce proof of that disregard of the law requiring the Australian charge and establish it if he could. system to be followed, but merely that some [7] Point is made that the question whethof its many provisions were not observed, er or not any election was legally held canand hence such violations will constitute not be inquired into in a contest of this kind, mere irregularities which are not sufficient but that the contestant can only question grounds to invalidate the election unless it the result thereof. This is clearly untenable. is alleged and shown that said violations The statute authorizing contests of local opwere fraudulently committed and worked an tion elections says: "The election actual fraud upon the voters, by which the and the result thereof may be contested," result of the election was changed from etc. The power to contest, given by the statwhat it otherwise would have been, and that ute, is not limited in its scope, and conin the absence of such allegations charging sequently, not only the result of the elecfraud upon the officers and showing spe- tion, but the legal existence and validity of cifically how that fraud operated upon the the election itself, may be inquired into. voters and upon the announced result, con- State ex rel. v. Ross, 161 Mo. App. 671, 143 testant's notice states no cause of action. If S. W. 510. the law's requirements as to booths and as to secrecy in the preparation and depositing of the ballot can be dispensed with without All concur. violating the whole object and spirit of the Australian Ballot Law and disregarding it For the reason above indicated, the judgment is reversed, and the cause remanded. entirely, then we do not know what would BRIGHAM v. T. D. JUDY INV. CO. et al. violate or disregard it. We are cited to the case of Skelton v. Ulen, 217 Mo. 383, 117 S. W. 32, in support of contestee's view that the failure to have any booths or compartments constitutes a mere irregularity. In that case one of the allegations was that the booths were without screens and there was no guard rail. Because the Supreme Court refused to disturb the election and said that the contestant had alleged a number of facts which were only irregularities, contestee here argues that a failure to have any booths or compartments whatever would also be treated as an irregularity. We do not think this is a logical deduction to be drawn from the decision. The Supreme Court was considering the case on its merits, and, in its analysis of the evidence, shows that there was a substantial compliance with the law. It is not said whether screens were in fact absent from the booths or not, but the court does go on to show that booths were used and that the voters had a full, free, and fair opportunity to vote their sentiments unmolested by any one and to prepare and cast their ballots and to have the secrecy thereof duly preserved. Under such circumstances, a holding that the mere absence of screens or guard rails was an irregularity can, in no sense, be considered as a holding that the failure to have any booths or compartments at all, whereby the voter had no privacy and could not vote a secret ballot, would be regarded as a mere irregularity. Believing that the notice in the case at bar alleged a total disregard of the state election law in the holding of said election, we are of the opinion that the court erred in sustaining a demurrer thereto. If there was a total disregard of said law, then there was no election. And under the allegations of the (No. 11909.) (Kansas City Court of Appeals. Missouri. April 3, 1916. Rehearing Denied May 1, 1916.) 1. FRAUD 58(1)-ACTION FOR DAMAGESSUFFICIENCY OF EVIDENCE-CONSPIRACY. practiced upon the plaintiff held to sustain a Evidence in an action for damages for fraud finding that defendant investment company and two individual defendants were all one and the same, and had conspired together to defraud plaintiff of her equity in farm property, and had succeeded in doing so. [Ed. Note.-For other cases, see Fraud, Cent. Dig. § 55; Dec. Dig. 58(1).] 2. PRINCIPAL AND AGENT 23(1)—AGENCYEVIDENCE. Evidence in such action held to show that the first three defendants, all actively working together to defraud the plaintiff, were the agents of the other defendant, whose flat property was to be exchanged for plaintiff's farm prop erty. [Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. § 41; Dec. Dig. 23(1).] 166(2)—FRAUD 3. PRINCIPAL AND AGENT [Ed. Note. For other cases, see Principal and 4. FRAUD 48 ACTION FOR DAMAGES PLEADING ESTOPPEL. ticed upon plaintiff by an exchange of the equity In an action for damages for fraud pracin her farm property for a flat, the defense that plaintiff had lost her right to maintain the ac tion because she had elected to pursue an inconsistent remedy by bringing a suit in another state to disaffirm the trade and recover her farm, was based upon the doctrine of equitable estoppel, which, to be available, was required to be pleaded in the answer. [Ed. Note. For other cases, see Fraud, Cent. Dig. 43; Dec. Dig. 48.] 5. ELECTION OF REMEDIES 9-BRINGING OF SUIT-DISMISSAL. Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge. "Not to be officially published." Action by Sarah F. Brigham against the T. D. Judy Investment Company and others. Judgment for plaintiff, and defendants appeal. Affirmed. Chas. A. Loomis, of Kansas City, for apThe bringing of a suit which was dismissed pellants T. D. Judy Inv. Co., T. D. Judy, and before trial is not such an election as will pre-G. T. Hendrickson. Ellis, Cook & Barnett, vent the bringing of another suit to enforce a of Kansas City, for appellant Charles E. different remedy. Washburn. Heidelberger & Houston and T. Election of B. Buckner, all of Kansas City, for respondDec. Dig. [Ed. Note. For other cases, see Remedies, Cent. Dig. §§ 13-15; ⭑9.] 6. FRAUD 47 PLEADING. ACTION FOR DAMAGES In an action for damages for fraud practiced upon plaintiff by defendants, a petition alleging that the flat transferred in exchange for the equity in plaintiff's farm was not worth over $7,000, but was fraudulently represented to be worth $15,000, and that plaintiff, relying upon such representations, agreed to the exchange, that she lost the equity in her farm, and that was actually damaged in the sum of $10,000, in view of evidence by both sides throughout the trial upon the value of the flat as bearing upon the damages, presented the question of damages measured by the difference between the actual value of the flat at the time of the exchange and its actual value if it had been as represented. [Ed. Note. For other cases, see Fraud, Cent. Dig. 42; Dec. Dig. 47.] 7. FRAUD 59(2)-EXCHANGE OF PROPERTIES -MEASURE OF DAMAGES. In such case the measure of plaintiff's actual damage was the difference between the actual value of the flat when it was exchanged for plaintiff's equity in a farm and its actual value if it had been as represented to plaintiff by another of the defendants. [Ed. Note.-For other cases, see Fraud, Cent. Dig. § 61; Dec. Dig. 59(2).] 8. FRAUD 58(4) SUFFICIENCY OF EVIDENCE-RELIANCE UPON REPRESENTATIONS. Evidence, in an action to recover damages for fraud practiced on plaintiff by defendants in the exchange of the equity in her farm property for flat, held to sustain a finding of plaintiff's reliance upon the representations as to the value of the flat. [Ed. Note.-For other cases, see Fraud, Cent. Dig. § 59; Dec. Dig. 58(4).] 9. FRAUD ~11(2) REPRESENTATIONS AS TO VALUE-RIGHT OF ACTION. In such action, where the fraudulent representations as to the value of the flat were made by one of the defendants to plaintiff as his principal and relied on by plaintiff, they were actionable, as the plaintiff was not upon an equal footing with the defendants. [Ed. Note. For other cases, see Fraud, Cent. Dig. 13; Dec. Dig. 11(2).] 10. APPEAL AND ERROR 1068(4)-HARMLESS ERROR-INSTRUCTIONS-DAMAGES. In an action for damages for fraud resulting in plaintiff's conveyance of the equity of her farm without any equivalent, an instruction on punitive damages was not prejudicial error affecting the award of actual damages, where the trial court ordered a remittitur of the punitive damages awarded. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 8 4228; Dec. Dig. 1068(4); Trial, Cent. Dig. §§ 475, 553, 558.] ent. TRIMBLE, J. Plaintiff brought this action to recover damages on account of fraud which she charges was practiced upon her. At the time of the occurrences hereinafter related, she was a widow 71 years of age, living in Kansas City, Mo., unacquainted with real estate values, inexperienced in business affairs, and ignorant of the proper methods of effecting transfers of real estate. She was the owner of a farm in Kansas. The defendant T. D. Judy Investment Company seems to have been a corporation organized to engage in the real estate business. Defendant T. D. Judy was its president, and defendant G. T. Hendrickson was a stockholder and director therein, and also vice president of said company. It is apparent from the evidence that all three of these defendants were very closely associated together in business. They jointly maintained an office in the Westover Building at ThirtyFirst and Troost, though the main office of the corporation was at 1020 Commerce Building. Judy swore that all of the stock of the Company had been returned to the treasury and canceled, and that the company was not doing a real estate business in the summer of 1913, and that the office at Thirty-First and Troost was not a company office. But his codefendant Hendrickson swore that the sign on the door bore the name of the corpora tion; and the contract which said defendants introduced to prove that Hendrickson's business was separate from that of T. D. Judy or the T. D. Judy Investment Company shows that one half of the rent and telephone expense was borne by "T. D. Judy or the T. D. Judy Inv. Co.," and the other half by Hendrickson. Notwithstanding the fact that this contract provided that the business of Hendrickson should be separate and distinct from that of "T. D. Judy or the T. D. Judy Investment Company," and neither should be entitled to demand pay for what business the other originated nor be liable for the other expenses, still the facts and circumstances in evidence are ample to authorize the jury to find that, so far at least as the transactions involved herein are concerned, all three were engaged in the same common and joint enterprise. These facts and circumstances will, to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes some extent at least, be disclosed as this make a report to her about the property for opinion proceeds. The defendant Charles E. Washburn was engaged, for 30 years, in the real estate and loan business in Kansas City, and owned a flat at 410 Wabash avenue. The evidence tends to show that this flat was worth very little over $7,000. As stated before, plaintiff owned a farm in Kansas. It consisted of 160 acres, on which there was a house and other improvements. She testified it was worth $55 per acre, or $8,800, but her testimony was stricken out because she could not qualify as to values. Defendants offered testimony tending to show it was worth $35 per acre, or $5,600. It had a mortgage of $3,000 on it. Plaintiff desired to trade it for Kansas City property, and, seeing an advertisement in the Kansas City Star of property that was for exchange for farm lands, answered the advertisement. perhaps a week after he had gone to see it. If this was the case, then, according to plaintiff's testimony, whatever report he did make to her was after she had tied herself up with the contract and deed as hereinafter related. At certain places in the old lady's testimony it would seem, from what she says, that her son did see her shortly after he looked at the property and advised her to get somebody else beside him to look at it. In another place she says she had not received a report from her son on the property at the time she signed the contract and deed. The son says he told her he did not think the property was worth as much as $15,000. He had no definite idea of its value. And further on he said he told her he did not believe any one would lend $7,000 on the property, although he had said prior to this that he did believe it at the time Hendrickson was showing him the property and told him there was a $7,000 loan on it. From this, and from the fact that the old lady says her son "was terribly worked up over it" when she told him what she had done, it is fair to infer that the son that she had better get somebody else to look at the property before doing anything, and that the time he told her he didn't think the statement that there was a loan of $7,000 on it was true, was at the time he was "terri Along in the first part of July, 1913, the defendant Hendrickson came to plaintiff's home, bringing with him her letter. He introduced himself, telling her he had received her letter and gave her his business card, which had on it the name of the T. D. Judy Invest-did tell her, shortly after seeing the property, ment Company and also his name with the address "1020 Commerce Bldg. Kansas City, Mo." (which was the main or uptown office of the company), and also had on it the words "South Office, 206 Westover Bldg., 31st St. & Troost Avenue," together with the tele-bly worked up" over what she had done, phone numbers of both offices. He told her which, of course, was then too late since it he represented some one who owned a flat was after she had signed the contract and exin the city who had a relative who wanted ecuted the deed. At any rate plaintiff says to go on a farm, and this owner would there- she told Hendrickson that her son had told fore sell or trade his city property. He fur-her to get somebody else to examine the propther told her the flat was on Prospect ave-erty for her. nue. home, Hendrickson, who was a young man in his early 20's, told plaintiff that she greatly resembled his mother, so much so that he was going to bring his mother's picture out to show her. From that time on throughout the negotiations that ensued, Hendrickson called her "mother" and, by complimenting her and her boys, speaking of their good behavior and fine reputation, by taking her out riding and offering to do so at times and by taking her in his automobile to prayer meeting, talking about church affairs, and by other pleasant and agreeable ways, ingratiated himself into the old lady's favor and confidence. This was southwest of where plaintiff At the time of his second visit to plaintiff's lived and in a portion of the city which suited plaintiff. The next day he came in an automobile and took plaintiff to look at the property he had, but, instead of taking her on Prospect avenue, went in another direction and took her to the flat at 410 Wabash avenue, the property owned by the defendant Washburn. Hendrickson showed her this property; the two being there about 20 minutes. He told her it was worth $15,000, and that there was a "straight loan" on it of $7,000. He praised and "bragged up" the property in various ways and asked her what she thought of it. She said she would not have anything to do with it until her eldest son looked at the property. This son was superintendent of the Helping Hand Mission in the north end of the city, but was unacquainted with realty values. Hendrickson at once ascertained from plaintiff his address, and the next day went to see him and took him to look at the property, telling him his mother wanted him to see it. The record is not entirely clear as to just when her son reported to her. The evidence shows that he was busily engaged in his own affairs, taking time to see his mother only whenever he could find the time to do so. He says that he did not On the 11th of July, 1913, he came again to her home, and wanted her to sign a contract to take the flat. Plaintiff told him she didn't want to sign the contract till she had learned something about its value. He assured her it was worth all he had told her, that there was a straight loan on it of $7,000, and that there was a rule among people who dealt in such things to make no loan on property for more than 40 per cent. of its value, and this showed what the property was worth. Plaintiff told him that she could not "save herself" unless she could get $12,000 for the property, and he said to her, “Oh, During the days that then elapsed, the plaintiff was told the owner of the flat was going to see her farm. Hendrickson again came out to see her and got her to sign if you will give me all I can get over $12,- This she understood was to be left with the 000, I will make at least $1,500." And he contract as the owner of the flat would not assured her he could sell it for her and go to see the land until the note was put up make some money for himself. He induced with the contract. Hendrickson also asked her to agree to make him her agent to effect for and obtained the legal description of the the trade of her farm for the flat, she to farm, he giving her a receipt for it. This pay him $150 commission, and the man who was done in the morning. In the evening of owned the flat to pay him a like sum. She the same day he came back with a deed to did not tell him to draw up a contract, but the farm drawn up and told her the man he drew a blank form from his pocket and who owned the flat was going to see the proceeded to prepare it for her signature. farm, but he wanted to be satisfied, and He did not tell her who owned the flat, but therefore it was necessary for her to sign always spoke of him as the man who owned the deed; that it was made out to somethe flat. Plaintiff, believing and relying up- body in the office; that nothing would be on his representations, signed said contract. done with it; it would be held there in the It is not definitely certain just how much office until the man went to look at the farm, of this contract was filled out at the time and then another would have to be made plaintiff signed it. It is certain that Wash-out. Thereupon plaintiff signed the deed. burn had not signed it at that time, because She says that during the conversation afterhe did not sign it until after the deal had wards, he asked her if she acknowledged it, been closed and the exchange of properties but she did not know he was a notary and had been consummated. And Hendrickson did not understand that her acknowledgment admits he inserted a certain clause in the was being formally taken, and did not learn contract afterwards to which he says plain- it until afterwards when, having employed tiff consented. When introduced in evidence, an attorney, she was informed of it by him. however, this contract dated July 11, 1913, Hendrickson took the deed away with him, was between "Sarah F. Brigham, party of leaving no copies of any of the instruments the first part, and Chas. Washburn, party he had induced the old lady to sign. of the second part, and G. F. Hendrickson, agent." By it first party agreed in consideration of $1 to convey to second party her Kansas farm on or before August 15, 1913, subject to incumbrance of $3,000, and to fur-two notes for $75 each, being for the $150 nish abstract of title thereto within 10 days from date of acceptance. Second party agreed to convey to first party on or before July 15, 1913, the premises known as 410 Wabash avenue, Kansas City, Mo., being a three-story brick building, subject to $7,000 incumbrance in two notes and two deeds of trust, one for $4,000 and one for $3,000, payable $75 per month, or less, if possible to secure. The contract further provided that should either party fail or refuse to complete their part of the contract, then the party failing should pay the other $500 as liquidated damages, but for this cause the contract should not cease to be operative. The contract further provided that second party or his agent should have 15 days to investigate plaintiff's land and to approve or reject the contract; but if the contract is not approved by that time, then it was to be null and void. The contract further provided first party was to pay his agent $150 as commission. Hendrickson told plaintiff the man who owned the flat was to pay $150 commission. But when the contract was introduced in evidence it provided that the second party agreed to pay his agent "$no as commission in this transaction, each of them being fully aware that said is receiving also a commission on the premises from the other party." In addition to the contract, Hendrickson obtained plaintiff's signature to a note for $500, dated July 11, 1913, payable to the order of T. D. Judy Investment Company. she had agreed to pay him as her agent for effecting a trade of her farm. Plaintiff asked him, every time he came, if the man had been to see the farm yet, and Hendrickson told her he had not gone yet, but was going. At the time he obtained the notes for $75 each, he told her the man who owned the flat had got jealous of him because he was working so hard for her and, on that account, the man had refused to pay him any commission. During the days plaintiff was waiting for Hendrickson and the flat owner to close up the trade, Hendrickson would come out in his automobile and offer to take her riding. At one time he came in and assisted her in washing the dishes and afterwards took her to church in his machine. After her son learned from her that she had signed a contract, he suggested to her that she should obtain the abstract and have it examined. She thereupon spoke to Hendrickson about it during one of his visits to her home, and he told her, "We have got a good lawyer in our office, and he will examine it, and it won't cost you a cent to have this title examined." He presented a paper for her to sign, telling her it was to her interest to do so; that it would enable the lawyer to look over the abstract, as he wanted to see that it was all right and that after that, her son could have it examined if he wanted to. Plaintiff signed it after Hendrickson had read it partly over and told her it was to her interest to do so. This paper plaintiff was induced to sign was addressed to the T. D. Judy Investment Company and G. T. Hendrickson, authorizing them to turn the abstract to the flat over to an attorney therein named for examination, and plaintiff agreed therein that "if he says the title is O. K., I will accept it in its present condition; if not, title to be corrected within 30 days, or as soon thereafter as possible." The attorney therein specified was unknown to plaintiff and had his office with the T. D. Judy Investment Company at 1020 Commerce Building. He never saw plaintiff, was unacquainted with her, and made no report to her in any way. Hendrickson says he showed him the written authority plaintiff had signed, got him to examine the abstract and make a report to him, and paid him $5 therefor. Plaintiff, having signed a number of instruments and having no copies thereof to learn what she had signed, and no trade having been made, went to Hendrickson and asked him for them. He told her they were in the bank vault, and he had left his keys at home and could not get them. Plaintiff became uneasy and became worried. Thereupon Hendrickson introduced her to the defendant Judy. He appeared to know all about the deal and told plaintiff she was getting a good thing, was making more on it than she would on the farm, and would be getting a better income. Plaintiff then went to consult her attorney (Mr. Heidelberger) who advised her to go back in the afternoon. She did so, but was unable to get the papers. Heidelberger, learning that she had been unable to get them, telephoned to Judy and Judy told him he would have the abstract the next day. Heidelberger wanted to see what the contract was which plaintiff had signed, and also to examine the abstract to the flat for her. The next day, Tuesday, plaintiff and Heidelberger went together to the office of the T. D. Judy Investment Company. They called for Mr. Judy and sat waiting for 15 or 20 minutes, and then, Heidelberger having an appointment at the courthouse, left. He returned after a time and found the door of the private office open and Mrs. Brigham sitting there, but Judy was gone. Mrs. Brigham says that while her attorney was away they told her they were not ready for her then and showed her into the private office, and a young man in the office talked and talked to her. She remarked that it was very warm in there and wanted to go back to the outer office, but he told her it was hotter out there. She says they seemed to be doing something in the other office, but she was kept waiting in the inner office till everything was quiet outside, and then the young man who was with her went out of the inner office where she was and closed the door. Finally she opened the door and went out into the outer office, but everybody had gone except the office girl. Mrs. Brigham's attorney called over the telephone two or three times that evening and finally got into connection with Judy, who informed him he would have everything ready the next morning; the abstract and all the papers would be there. The attorney asked Judy whether or not there was a written contract between Mrs. Brigham and some one, and Judy told him there was a regular contract. Upon the attorney asking him where he could see the contract, Judy informed him it was in a safe deposit vault, but that he would have the abstract and all the papers for his inspection the following morning. The next morning Heidelberger went to Judy's office. Judy called him into the office and handed him the ab In her efforts to get her abstract and papers, plaintiff told Hendrickson at her home she was going to send her son to his office the following Monday to get the abstract. Hendrickson told her for him not to come Monday as they would not be ready then. Plaintiff then said she would telephone her son and let Hendrickson know what he said. Hendrickson told her not to telephone to him (Hendrickson) that day because he wouldn't be in his office; that he wouldn't be in his office till 6 o'clock Monday. After Hendrickson left plaintiff's home, she telephoned her son and learned from him that he would go the next morning to get the papers. Thereupon plaintiff telephoned to Judy's office not expecting Hendrickson to be there, as he had told her he would not be in his office any more that day. But Hendrickson was there and answered the phone. She told him her son would be over for the abstract to the flat, got him to sign a receipt stract the next morning, Saturday. Hendrickson told her for him not to come, as it was "rulable to deliver it only to the owner." Plaintiff thereupon said she would go herself and made an appointment to go to the office at 12 o'clock. Instead of waiting till 12 she went some 2 hours earlier, and Hendrickson and Judy were surprised to see her. They rushed into the private office and closed the door. After a time Hendrickson came out and told her they were not quite ready yet and asked her if she had the receipt he had given her for her abstract. When she told him "No," he wanted her to therefor, and then informed him that it was no longer necessary to examine the title because the transaction had been closed. This receipt was dated July 23, 1913, and recited that Heidelberger had received of T. D. Judy abstract of title to the flat, describing it by its legal description, and that it was to be returned in 10 days. Upon learning from Judy that the deal had been closed, Heidelberger asked him what it meant. Judy replied that the whole transaction was absolutely regular; that the title had been examined. Upon being asked by whom, Judy showed Heidelberger Mrs. |