12 Mo.App. 335 (Mo.App. 1882), Arthur v. Wheeler & Wilson Mfg. Co.

Citation:12 Mo.App. 335
Opinion Judge:BAKEWELL, J.
Attorney:M. W. HUFF, for the appellant. E. P. JOHNSON, for the respondent.
Case Date:June 06, 1882
Court:Court of Appeals of Missouri

Page 335

12 Mo.App. 335 (Mo.App. 1882)

MASTIN H. ARTHUR, Respondent,



Court of Appeals of Missouri, St. Louis.

June 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.


M. W. HUFF, for the appellant.

E. P. JOHNSON, for the respondent.



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...

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