Stonemets v. Head

Decision Date28 February 1913
Citation154 S.W. 108,248 Mo. 243
PartiesSTONEMETS et ux. v. HEAD.
CourtMissouri Supreme Court

Appeal from Circuit Court, Audrain County; James D. Barnett, Judge.

Action by George M. Stonemets and wife against A. N. Head. Judgment for plaintiffs, and defendant appeals. Affirmed.

Fry & Rodgers, of Mexico, Mo., for appellant. Barclay, Fauntleroy, Cullen & Orthwein, of St. Louis, and F. R. Jesse, H. P. Warden, and S. D. Stocks, all of Mexico, Mo., for respondents.

LAMM, J.

Plaintiffs, husband and wife, with a family of six children, resided on a farm of 120 acres in Fulton county, Ill. Eighty acres of it belonged to Margaret, and 40 stood in the names of Margaret and George jointly as baron and feme. This little farm, with a modest outfit of farm implements, stock and household goods, was their all. In that regard Nathan's one ewe lamb allegory is apposite. Their farm will be called the Illinois farm. They seem to belong to a class that should be well beloved (because, as a great soul once suggested, God had made so many of them), viz., straightforward, simple-minded, hard-working, trustful, and confiding people, members of the church and alive to ethical work, including temperance. (The moral of which lies further on. Of which more presently, anent Head himself.) Their farm, improved and productive, was well worth $60 per acre cash. It was incumbered for $2,800, and George got it into his head that a larger farm could be profitably worked while he had his large family in hand, thereby making hay while the sun shone. Old Polybius says, sourly, "Man is the most gullible of all animals." Be that so or not so, it seems these plaintiffs were little versed in the guileful ways of traders. Thirty miles away in the same county, and a stranger to them, was a man who (on this record) seemingly lived by his wits, a trader and real estate agent named Head, who had got on in the world as such. Among others he owned a farm of 236 acres in Audrain county, Mo., subject to an incumbrance of $4,500, and 20 acres adjacent unincumbered. These two tracts will be called the Missouri farm for convenience. He had traded for all of this land, except the unincumbered 20, some years before, was no stranger to it, and knew it as a worn-out, nonproductive farm (inclusive of the 20), with a bad reputation, a "trading" property long in the hands of renters. There was evidence there was no other farm like it in the neighborhood. It stood alone in bad pre-eminence, which fact we emblazon and embalm to the credit of Audrain county. He had tried to rid himself of it without success till he met up with plaintiffs. A while before his trade with them he had listed it in a land agency at $35 per acre, agreeing to pay a commission on that price. He had tried the unusual plan of trying to dispose of it at public auction by a covinous device, to wit, the enticing and stimulating aid of by-bidders and puffers. At that auction at the county seat of Audrain county, Mexico, he screwed the price up (by by-bidding alone) to $35 an acre, but got no real bidder above that (or at that), and it was struck off to one of his by-bidders on his simulative bid, and no deed was made. The entire Missouri farm was worth, say, $20 or at best $25 per acre in cash, and we think Head knew that fact. In other words, barring the 20-acre tract, which agreed in worth with the general run of the farm, it was incumbered for about its worth. In January, 1908, Head traded his Missouri farm to plaintiffs for their Illinois farm, putting the title in plaintiffs jointly, each party to the trade assuming the other's original incumbrance. Plaintiffs, as said, put in their land at its true cash value, to wit, $60 per acre (which Head knew), and Head put his in at the claimed (but simulated) value of $60 per acre (which Head knew they did not know), and took a note and deed of trust by way of boot for $6,288, evidenced by a note due in seven years, and secured on that part of the Missouri farm already under mortgage. Shortly plaintiffs broke up their home in Illinois, moved to Missouri, and took possession of their new purchase. Shortly Head sold the Illinois farm for $65 per acre.

(Note. — There is some evidence from which it might be inferred that Head was fleeced when he traded for the Missouri farm several years before, but it is not contended by counsel that such fact, if fact it be, justified him in turning about, and, in turn, fleecing plaintiffs. Such application of the doctrine of the Squib Case whereby one passes a bad trade on to another, an innocent party, as the boy in the Squib Case tossed on the burning squib [Scott, an infant, v. Shepherd, an infant, 2 Blackstone's Rep. 892], would be novel indeed. That A., bitten by B., may by that token in turn bite C., in a like way by the same device, is a doctrine unknown to this court.)

In the late summer of 1908 plaintiffs sued in equity to cancel said deed of trust and note and for damages. This on the theory that the trade was made on the strength of false representations by Head as inducements thereto and relied upon by them; that they had been the victims of an arrant swindle, whereby they were tricked out of their farm, and were entitled to relief in equity to that extent.

From a decree canceling the note and deed of trust and awarding them $2,400 in money damages Head appeals, raising two general questions for decision, viz.: (1) Does the petition state facts sufficient to constitute a cause of action? (2) Does the evidence support the decree? Other facts will appear in connection with the discussion of those questions.

1. Of the petition.

(a) Preliminary to the main contention on the petition a foreword is due. Brought in the circuit court of Audrain in July, 1908, the bill contemplated that the suit would proceed on constructive service. However, afterwards defendant appeared personally, and answered by a plain general denial. Thereat, with the pleadings in that fix, many depositions taken in different states were filed for use; and preparatory to the final hearing, as we gather, witnesses were summoned to be in attendance at the trial term (June, 1909). Two days before the trial was set, and apparently after all...

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    ... ... State ex rel. v. Gates, 190 Mo. 540, 89 S.W. 881; Kansas City v. Hyde, 196 Mo. 498, 96 S.W. 201; Stonemets v. Head, 248 Mo. 243, 154 S.W. 108; Murphy v. Greensboro, 190 N.C. 268, 129 S.E. 614; Drummond v. City of Columbus, 136 Neb. 87, 285 N.W. 109, 115; ... ...
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