Judd v. Walker

• Decision Date: 23 December 1908
• Parties: CURTIS J. JUDD, Appellant, v. ALTEN M. WALKER and FRED NAXERA
• Court: Missouri Supreme Court

114 S.W. 979

215 Mo. 312

CURTIS J. JUDD, Appellant, v. ALTEN M. WALKER and FRED NAXERA

Supreme Court of Missouri, First Division

December 23, 1908

Transferred from St. Louis Court of Appeals.

Reversed and remanded.

Ball & Sparrow for appellant.

Pearson & Pearson for respondent Walker.

(1) (a) It is the duty of the court to construe the terms of a contract. Keaton v. Boughton, 83 Mo.App. 165; State ex rel. v. Lefaivre, 53 Mo. 471; Chapman v. Railroad, 114 Mo. 551; Ford v. Dyer, 148 Mo 541; Edwards v. Smith, Admr., 63 Mo. 127. And as far as possible the construction the parties have given to a contract will to a large extent govern the court in construing the terms of such contract. St. Joseph U. D Co. v. Railroad, 131 Mo. 291; Meyer v. Christopher, 176 Mo. 580; Sawyer v. Sanderson & Thomas, 113 Mo.App. 233; St. Louis v. Laclede Gas Co., 155 Mo. 1; Green v. Higham, 161 Mo. 333. (b) The testimony of Judd that he and Bourland had no agreement whereby Bourland was called his agent; that he was to get no salary, commission, or anything of that kind, but was to share equally in the profits, and bear one-half the losses, establishes the relationship not of principal and agent, but of partners. When one party contributes the capital and other the labor and skill, or experience for carrying on a joint enterprise, such a combination constitutes a partnership, unless something appears to indicate the absence of joint ownership of the business and profits. Torbett v. Jeffrey, 161 Mo. 645; Steckman v. Bank, 126 Mo.App. 664; Glore v. Dawson, 106 Mo.App. 107; Tamblyn v. Scott, 111 Mo.App. 46. There is no evidence in this record to overcome the legal presumption that these parties were partners. (2) If the contract under which these parties were operating is construed to make Bourland a partner in this enterprise with Judd, then this action should have been brought in the name of the real parties in interest; and these were the individuals composing the partnership. Bourland should have been made a party plaintiff. Conrad v. Spink, 38 Mo.App. 309; Mitchell v. Rialton, 45 Mo.App. 282; Hammersmith v. Hilton, 8 Mo.App. 564; Steckman v. Bank, 126 Mo.App. 668. (3) The abstract was called for by the contract, was furnished, and was in the hands of Bourland and his attorney one month previous to execution of deed to Judd; was carefully examined by plaintiff's attorney and casually examined by Bourland. This abstract contained the deed that conveyed this tract of land to Naxera as 160 acres, more or less; and also contained deed or deeds that had previously described this same tract of land as containing 178 acres. This abstract gave plaintiff all the information Walker had, or claimed to have had, concerning the title to this land, and the number of acres it contained as shown by the various deeds from various grantors, from the Government down to and including deed from Conrad to Naxera, which deed was introduced in evidence, but the abstract was not. (4) Walker did not know, and did not claim or represent to Bourland that he knew the exact number of acres in said tract of land. We do not think the record justifies the conclusion or statement in the opinion of the Court of Appeals that: "The evidence shows conclusively that Walker made positive representations to Bourland as to the number of acres in tract," etc. But, on the contrary, Bourland testified positively that Walker told him he did not know the exact acreage of the tract of land; that the abstract would show it. If Walker told Bourland, as Bourland testifies, that he did not know how many acres were in this tract of land; that he would, and did, furnish him with an abstract, which showed this same tract of land had been described in various deeds as containing different number of acres, and delivered to him a deed by which Naxera obtained title, describing tract as 160 acres -- then any statement made by Walker to Bourland at any time during the course of negotiations as to the number of acres in said tract of land could not have been considered or treated by Bourland as a statement of facts, positively and of his own knowledge, but a mere expression of opinion, and cannot be held to constitute fraud.

Matson & May for respondent Naxera.

(1) Plaintiff is not entitled to recover under the pleadings and the evidence, and the action of the court in instructing the jury to find for this defendant is correct. Mires v. Summerville, 85 Mo.App. 183; Boxley v. Stevens, 31 Mo. 201; Sullivan v. Ferguson, 40 Mo. 79; Martin v. Stone, 79 Mo.App. 309; Gordan v. Parmallee, 2 Allen (Mass.) 212; Mooney v. Miller, 102 Mass. 217; Credle v. Swindle, 63 N.C. 305; Dunn v. White, 63 Mo. 182; Hitchcock v. Baughn, 36 Mo.App. 216; Faulconer v. Samples, 57 Mo.App. 302; Anderson v. McPike, 86 Mo. 263; Lewis v. Brookdale Land Co., 124 Mo. 687; Langdon v. Green, 49 Mo. 363; Seay v. Sanders, 88 Mo.App. 478. (2) Bourland should have been made a party plaintiff, under his testimony and the testimony of plaintiff Judd. He has an interest in this suit. White v. Dyer, 81 Mo.App. 645; Seay v. Sanders, 88 Mo.App. 478; R. S. 1899, sec. 540; Wilson v. Polk Co., 112 Mo. 126. (3) In so far as the contract between Walker and Bourland is concerned, Naxera cannot be bound by it, for the reason he is not a party to it, and it is within the Statute of Frauds and Walker had not been "authorized by Naxera in writing to make said contract for him." R. S. 1899, sec. 3418; Hackett v. Watts, 138 Mo. 502. (4) The Statute of Frauds is available as a defense without being specially pleaded and may be proved under a general denial. Hillman v. Allen, 145 Mo. 638.

OPINION

LAMM, J.

Judd, the plaintiff, resides in Brookline, Massachusetts, but is in business at Dwight, Illinois. Bourland resides at Pontiac, Illinois. The defendants, Walker and Naxera, reside in Buffalo township, Pike county, Missouri. Naxera owned two tracts of land in Pike county, Illinois. Walker was Naxera's agent to sell them. Bourland was Judd's agent to buy them. So acting, at a certain time Bourland purchased from Walker said tracts of Illinois land. Judd and Bourland were strangers in that vicinity and unfamiliar with the lands. Walker and Naxera were familiar with the lands and Walker made false representations as to the acreage. After the deed passed from Naxera to Judd, it was ascertained there was a serious discrepancy in the amount of land conveyed by the deed, whereby Judd paid over $ 1,000 for land he did not get and which Naxera did not own and knew he did not own. Thereupon Judd sued Naxera and Walker for damages in the Louisiana Court of Common Pleas, grounding his action on fraud and deceit. No question is made on the pleadings and the facts seem to be of such sort that the law should throw no mere captious obstacle on dry technicality in the road of recovery -- to the contrary, should put its benediction on the effort if it can be done without overturning settled principles.

The laws of hospitality seem to require that strangers should be taken in in a good sense, but courts should be astute to not permit such a "taking in" as appears here.

At a trial in that court with the aid of a jury, at the close of plaintiff's evidence, he was cast by a peremptory instruction. Thereat he appealed to the St. Louis Court of Appeals. That court, speaking through Nortoni, J., handed down a unanimous opinion reversing and remanding the case ( Judd v. Walker, 114 Mo.App. 128, 89 S.W. 558), but certified it here, being of mind that its opinion was in conflict with Mires v. Summerville, 85 Mo.App. 183, decided by the Kansas City Court of Appeals.

The statement of facts by Judge Nortoni and his conclusions of law follow:

"This is an action at law on an allegation of fraud and deceit for the sale of lands. The evidence was to the effect that the plaintiff, Curtis J. Judd, treasurer of the Keeley Company of Dwight, Illinois, is a man of means and invests surplus money in lands. One Bourland, a banker of Pontiac, Illinois, and Mr. Judd have an arrangement whereby Bourland looks around for lands out of which money can be made by buying and reselling, and upon locating such lands Mr. Judd furnishes the money and the land is purchased in the name of Judd as a speculation. The business is all done by Bourland, subject to Judd's approval. On the occasion in question, Bourland, as agent of Judd, came to Louisiana Missouri, in search of lands and met the defendant Walker, a real estate agent at that place, who drove him across the Mississippi river into Pike county, Illinois, and upon the lands of the defendant Naxera, which he then had for sale as agent for Naxera. The land was irregular in shape, being bounded on one side by the Sny and running to a dull point on the north end. Walker, Naxera's agent, informed Bourland, Judd's agent, that the two pieces of land which were adjacent and owned by Naxera, contained one hundred and seventy-eight acres, one piece containing eighty acres and the other ninety-eight acres, and offered the tract at forty dollars per acre. Bourland looked at the land and they then drove on and viewed other properties. Returning to Louisiana, both Bourland and one Sims, a friend of Bourland who was accompanying him on the trip, informed Walker that Bourland was acting for Judd and that he would wire Judd for consent to buy the Naxera lands, which he did and received Judd's permission by wire, which was communicated to Walker. On the following day, Bourland drove to and upon the lands in order to locate a certain slough thereon, and that evening paid Walker $ 200 earnest money and entered into a contract in writing, whereby he agreed to purchase said lands as soon as Walker could procure satisfactory abstracts, conveyances, etc. At the time of...