Arthur v. Wheeler & Wilson Mfg. Co.

• Decision Date: 06 June 1882
• Citation: 12 Mo.App. 335
• Parties: MASTIN H. ARTHUR, Respondent, v. WHEELER & WILSON MANUFACTURING COMPANY, Appellant.
• Court: Missouri Court of Appeals

12 Mo.App. 335

MASTIN H. ARTHUR, Respondent,

v.WHEELER & WILSON MANUFACTURING COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Jun. 6, 1882.

1. In an action for deceit, a petition which alleges that the statement made by the defendant was false and was fraudulently made, sufficiently alleges the scienter.

2. To support an action for deceit, the defendant must have known, or had good reason to believe, that the statement made was false, or he must have assumed or intended to convey the impression that he actually knew the truth of the statement.

3. Where the question is as to fraudulent misrepresentations of facts peculiarly within the defendant's knowledge, that the plaintiff had means of knowing the truth is not necessarily fatal to his recovery.

4. The allegation and proof being that a sum certain was obtained by false representations, the jury may be instructed to allow interest on that amount.

APPEAL from the St. Louis Circuit Court, THAYER, J.

Affirmed.

M. W. HUFF, for the appellant.

E. P. JOHNSON, for the respondent.

BAKEWELL, J., delivered the opinion of the court.

There are two counts to the petition in this case. The first is for money had and received. The second count sets out a bond executed by one Gillingwaters as principal, and plaintiff as surety, conditioned for the faithful performance of his duty by Gillingwaters as agent of Sumner; and alleges that Sumner, having sold out his business to defendants, turned over to them, with his other papers, this bond; that defendants wilfully, falsely, and fraudulently represented to plaintiff that Gillingwaters, as the agent of Sumner, had violated the condition of this bond, and was indebted to defendants in the sum of $230.47, and demanded that sum of plaintiff; and that plaintiff, relying on said false and fraudulent representations of defendants, and believing the same to be true, paid to defendant, for the supposed cancellation of said bond, whereas, in fact, Gillingwaters had not violated the conditions of the bond and was not indebted to defendants. The prayer is for damages.

It appears from the evidence that, up to December, 1873, and for some years before that time, Sumner had been dealing on his own account in Wheeler & Wilson sewing machines. In March, 1873, he appointed Gillingwaters, at Hannibal, his agent for the sale of such machines, and took from him the bond in question, with plaintiff as surety, for the faithful performance of his duties as agent. Gillingwaters was the agent of Sumner until December 1, 1873, when Sumner sold out to defendants, and turned over to them all papers connected with his business. Gillingwaters was notified of the sale, and in Feburary, 1874, he had an interview with Kalb, the secretary of defendant, whose business it was to settle up agents' accounts. He then had a settlement with Kalb, which lasted two days. Sumner owed Gillingwaters about $1,000, for machines sold up to December 1st; and Gillingwaters owed Sumner between $700 and $800, for moneys and goods, and had a horse and harness of his. It was agreed that Gillingwaters should have the horse and harness and receive $50 in full of balance due him, and receipts were exchanged in full. Kalb then proposed that Gillingwaters remain as agent on new terms, which he accepted, and handed to Gillingwaters a new bond for plaintiff to sign, and a letter dated February 28, 1874, addressed to plaintiff, which states that Gillingwaters must give a new bond, and that the former bond was given to Sumner, and is only binding in connection with the business as conducted directly by him. This letter and bond were not shown to plaintiff, nor did he know anything about them until after he had paid to defendant the money which he sues for in this action. Gillingwaters returned to Hannibal, but worked for defendants only a week or two, as an experiment, after which he notified them that he would give up the agency; and a Mr. Hill was sent up to Hannibal to settle with Gillingwaters and receive the property in his hands. Gillingwaters says there was due him a considerable sum on commission account, which Hill said could only be settled at St. Louis by Kalb. Gillingwaters declined to settle for some machines sold until his commissions were settled, and claimed a balance due him, which he called at the office of defendant to collect, several times in 1874 and 1875. He says that it was never intimated to him that he owed defendants.

The statement of defendant to Gillingwaters, in April, 1874, showed a balance of $104.30; but, against this was set $241 of commissions not yet due to him, but to become due for various sales. This was not carried out on the ledger. On June 30, 1874, the ledger account is closed by a credit entry, “By agent's loss account, $123.47,” which balances the credit entries against Gillingwaters, the commission which he was to receive not appearing in the account.

On November 27, 1875, two days after plaintiff had settled the demand made upon him by defendant, new entries are made upon the ledger account of defendant with Gillingwaters. They charge him for five machines $292, and with agent's loss account, $123, and credit him with the commissions which had not been carried out, and with $230.47 received from plaintiff to balance.

On November 12, 1875, defendant wrote to plaintiff, enclosing a statement of account by which they claimed that Gillingwaters owed them for machines, less commissions, $230.47, which they request him to pay, stating that the amount is due by Gillingwaters as principal and by plaintiff as surety; that they can get no satisfaction from Gillingwaters and must proceed against plaintiff. The result was, that plaintiff, believing the statement of defendant to be true, within a few days, and before November 25, 1875, paid the demand by giving his two notes, which he paid to defendant in a day or two and before maturity. When the notes were paid, defendant delivered to plaintiff his bond, with a receipt upon the back of it for $230.47, the alleged deficit of Gillingwaters. Afterwards, plaintiff ascertained the facts from Gillingwaters, on applying to him to be reimbursed. He then began this suit. There was a verdict and judgment for plaintiff for $272.25.

The case was given to the jury upon the following declarations of law, of which the first two were given on the motion...