Hughes v. Estes

793 S.W.2d 206, 1990 Mo. App. LEXIS 1223, 1990 WL 112533
CourtMissouri Court of Appeals
DecidedAugust 7, 1990
DocketNo. 16220
StatusPublished
Cited by4 cases

This text of 793 S.W.2d 206 (Hughes v. Estes) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hughes v. Estes, 793 S.W.2d 206, 1990 Mo. App. LEXIS 1223, 1990 WL 112533 (Mo. Ct. App. 1990).

Opinion

MAUS, Judge.

By their petition, plaintiffs John B. Hughes and Opal H. Hughes sought recovery against defendants, Coleman Estes and Iris D. Estes because the defendants, by a fraudulent misrepresentation, induced the plaintiffs to purchase an apartment building. A jury awarded the plaintiffs a judgment for actual damages of $9,500 against both defendants and a judgment for punitive damages of $10,000 against defendant Iris D. Estes. The defendants state four points on appeal.

[208]*208This opinion should not be construed as deciding any other issues inherent in the case. Only a broad outline of the facts is necessary as a background for consideration of these stated points. Additional evidence will be noted where relevant to a point. It is trite to observe “[i]n testing the sufficiency of the evidence, we must view the evidence in the light most favorable to the jury’s verdict and afford the prevailing party the benefit of all reasonable inferences which can be drawn from the evidence.” Melton v. Illinois Cent. Gulf R. Co., 763 S.W.2d 321, 324 (Mo.App.1988).

The defendants owned an eight unit apartment building at 632 W. Walnut in Springfield. After a friend informed her of their possible interest, defendant Iris D. Estes (also known and referred to as “Sue Estes”), called Opal Hughes to sell the plaintiffs the apartment building. A few days later, the parties met at the apartment building. They looked at some of the apartments and briefly inspected the common areas and exterior. Opal Hughes asked Sue Estes if she knew of any problems with the building. Sue Estes answered no.

Negotiations followed and a week or two later the parties informally agreed upon the plaintiffs’ purchase for $79,000. On October 29, 1982, they met at the office of defendants' attorney for closing. While waiting, Opal Hughes again asked Sue Estes if there were any problems with the building and Sue Estes answered no. That day the attorney prepared and the parties executed a “contract for deed” providing for the purchase by the plaintiffs, with a $3,000 down payment and the balance to be paid in specified installments. Possession was surrendered to the plaintiffs.

In March 1983, the plaintiffs received a “Field Correction Notice” from the Department of Building Regulations of the City of Springfield. This notice listed six defects in the apartment building that had to be corrected. Two of the defects required major expenditures. They were upgrading the electrical system from the inadequate 60 amp. service and tuckpointing the walls of the brick apartment building.

The plaintiffs presented records of the Department of Building Regulations pertaining to 632 W. Walnut. Those records included the following. A similar notice issued September 20, 1982 to Kevin Sharp, and the envelope in which that notice was returned.1 A similar notice issued October 12, 1982 to Susie Estes at 936 E. Walnut. (Emphasis added.) A similar notice issued November 19,1982 to Susie Estes at 936 E. Walnut. A similar notice issued May 23, 1983 to Susie Estes at 936 E. Walnut. Sue Estes denied receiving the notice issued October 12, 1982. She admitted receiving the subsequent notices.

On April 25, 1983, the plaintiffs tendered possession of the property to the defendants. A few days later, Opal Hughes gave the keys to Coleman Estes. The defendants accepted the property.

The defendants’ first point is that the plaintiffs failed to establish they knew of the defects because the plaintiffs did not establish a presumption of the receipt by mail of the notice dated October 12, 1982, before the transaction was closed on October 29, 1982. They argue the plaintiffs did not establish the Department of Building Regulations handled a large volume of mail so as to excuse direct proof of mailing within the doctrine followed in Lake St. Louis Community Ass’n v. Ringwald, 652 S.W.2d 158 (Mo.App.1983). They also contend there was insufficient evidence of '"settled custom-and usage of [the sender’s] office, regularly and systematically followed in the transaction of its business’ ”. First Nat. Bank of Independence v. Mid-Century Ins. Co., 559 S.W.2d 50, 52 (Mo.App.1977). The plaintiffs cite and rely upon Armour & Co. v. American Automobile Ins. Co., 336 Mo. 551, 80 S.W.2d 685 (1935).

It is not necessary to consider the applicability of that doctrine. The testimony of Sharon Maness included the following. She was employed in the Building Regulations Department. The file pertain[209]*209ing to 632 W. Walnut had been kept under her care, custody and control. Notices issued by the department are sent out the day they are dated. The notices of October 12,1982, and November 19,1982, were sent to Susie Estes at 936 E. Walnut. She testified the following was a correct summary of events reflected in the file.

“Q And one notice was sent to Mr. Sharp and that came back. Another notice was sent to Susie Estes, that one didn’t come back, and another notice was sent to Susie Estes and that one didn’t come back. And then this notice was sent to Mr. and Mrs. Hughes, is that correct?
A That’s right.”

The foregoing testimony was admitted without objection, as was the file copy of the notice issued October 12, 1982.

“It is no longer open to question but that in this state testimony of a witness that he ‘mailed’ a letter is sufficient to raise the presumption of receipt by the addressee in due course. Ward v. Storage Co., 119 Mo.App. 83, 95 S.W. 964; Peirson-Lathrop Grain Co. v. Barker (Mo.App.) 223 S.W. 941, loc. cit. 943.
‘The testimony that a letter was “mailed” to the addressee is equivalent to a statement by the witness that it was properly addressed, stamped, and deposited in a proper place for the receipt of mail. Such testimony is sufficient to raise a presumption that it was received in due course.’ J.L. Price Brokerage Co. v. Ry. Co., 207 Mo.App. 8, 230 S.W. 374, loc. cit. 377; Rolla State Bank v. Pezoldt, 95 Mo.App. 404, loc. cit. 411, 69 S.W. 51.” Williams v. Northeast Mut. Ins. Ass’n, 51 S.W.2d 142, 143[2] (Mo.App.1932).

The testimony of Sharon Maness met those standards and was a sufficient basis for the jury to find Sue Estes received the notice issued October 12, 1982. The inference of receipt from that testimony was supported by Sue Estes’ admission she did receive the notices issued November 19, 1982, and May 23, 1983, to her at the same address. See Proof of Mailing by Evidence of Business or Office Custom, 45 A.L.R.4th 476 (1986); First Nat. Bank of Independence v. Mid-Century Ins. Co., supra. The point is denied.

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Bluebook (online)
793 S.W.2d 206, 1990 Mo. App. LEXIS 1223, 1990 WL 112533, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hughes-v-estes-moctapp-1990.