Cahn v. Reid
| Decision Date | 25 May 1885 |
| Citation | 18 Mo.App. 115 |
| Parties | LEE CAHN, Appellant, v. A. J. REID and H. F. BUNGARDT, Respondents. |
| Court | Kansas Court of Appeals |
APPEAL from Jackson Circuit Court, HON. F. M. BLACK, J.
Reversed and remanded.
The facts sufficiently appear in the opinion of the court.
ALDERSON & YOUNG, for the appellant.
I. The court erred in refusing instruction numbered one, asked by plaintiff, which is as follows: " The court instructs the jury that even though the jury find from the evidence that the plaintiff ever made inquiries concerning the land, of other parties, before he received the deed for it, yet if they believe that while the defendants knowingly made false representations as to the value of the land, which were relied on by the plaintiff (as being theirs), and were one of the inducing causes of the purchase, then your finding must be for the plaintiff." 1. This instruction was a correct declaration of the law. Clarke v. Dickson, 6 C. B. (N. S.) 453; Smith v. Kay, 7 H. L. Cases 750, 775; Rawlins v. Wickham, 3 DeG. and J., 304; Trail v. Baring, 33 L. J., ch. 521; Cabot v. Christie, 42 Vt. 121; James v Hodsden, 47 Vt. 127; Shaw v. Stine, 8 Bosw 157; Morgan v. Skiddy, 62 N.Y. 319; Addington v Allen, 11 Wend. (N. Y.) 157. 2. The plaintiff's evidence was strongly in support of the charge that the defendants had effected the exchange by misrepresenting the value and description of the land, while defendants introduced testimony to prove that the plaintiff relied, not on their misrepresentations, but on information received from a third party. Here was a secondary issue, incident to the one of fraud, and plaintiff's instruction was drawn to guide the jury in determining it. By its rejection the jury considered the case without being informed that " the law will not apportion the penalties of guilt among offenders, nor divide spoil among highwaymen." 3. The law declared by that instruction is not embodied in any of the instructions which were given. If they reach it at all it is only by " inference and argument." A litigant is entitled to have the jury instructed on the law of the case clearly and pointedly so as to leave no reasonable ground for misapprehension or mistake. Owen v. Owen, 22 Iowa 270; Gilkey v. Peeler, 22 Tex. 663; Ridens v. Ridens, 29 Mo. 470; Lytle v. Boyer, 33 Ohio St. 506; Thompson on Charging the Jury, sect. 78.
II. The court erred in giving instruction numbered one, on the part of defendants, as follows: " If the jury believe from the evidence that plaintiff before trading for the Allen county, Kansas, land with Bungardt, inquired of a real estate dealer, other than defendants, acquainted with the character and value of the land, respecting the same, and afterwards traded the goods sued for to said Bungardt, upon the knowledge of said land gained by such inquiry and not upon the representations of defendants, they must find for the defendant, Bungardt. In such case it is wholly immaterial what representations were made respecting the value and character of said land to plaintiff by Bungardt or Reid, or whether said representations were true or false. The two instructions (for plaintiff and for defendant), are so diametrically in conflict that to state the reason why the former should be allowed is to disclose the error in giving the latter. This instruction for defendant could have been understood by the jury only as it read, and meant: that if the plaintiff relied at all " upon the knowledge" he obtained from the third party, he could not recover. Hence the case was submitted on a principle that has been condemned without dissent by both English and American courts, and which gives immunity to fraud and deceit. James v. Hodsden, supra.
III. That a vendor may, by replevin, recover the goods obtained from him by fraud, is as firmly founded in reason and authority as the principle of self-defence. Wells on Replevin, sects. 318, 320, 366; Benjamin on Sales (3d Am. Ed.) sects. 433, 434, and cases cited by both authors.
M. CAMPBELL, for Bungardt.
I. The plaintiff has these alleged representations occur " while the attorney was preparing the papers and drawing the deeds," and " all after all terms of the trade had been settled. " 2. The only alleged representation of defendants controverted is as to the value of the land, and this is not given as the statement of either Bungardt or Reid. 3. The offer to rescind was made after suit was brought, and was made expressly because the title was defective, which was not true and was not shown at the trial.
II. The issue here is the title of plaintiff when he filed his petition. Petition had been filed and writ issued, as his own attorney says, before plaintiff even offered to rescind the trade. Hence plaintiff had no right of possession when he sued, and could not maintain replevin. Story on Sales, sects. 447, 200; Wharton on Evidence, sect. 1028; Thayer v. Turner, 8 Metc. 530; Pickington v. Trigg, 28 Mo. 95. And since plaintiff did not attempt to prove the title to the land invalid, while defendant did prove said title to be good, the offer made was worthless to revest in plaintiff the title to these goods, without which he could not maintain replevin. And equity will not rescind an executed contract for the sale or barter of land " because the title is defective," unless the contract has been tainted by actual fraud. Hart v. H. & St. Jo. R. R. Co., 65 Mo. 509; Cooley v. Rankin, 11 Mo. 642; Key v. Jennings, 66 Mo. 357. Nor can a court of law rescind a conveyance, or give a judgment amounting to a rescission. Rawle. Cor. Title, 278; Reese v. Smith, 12 Mo. 344; Luckett v. Williamson, 31 Mo. 54; Hart v. Hamblin, 43 Mo. 171; Brigham v. Winchester, 6 Metc. 460; Adams on Equity, 97, 351; Story on Eq. Jur., sect. 698. It follows that the court could create no title in plaintiff by holding this vain offer to be a rescission, nor could it decree " the restoration of the purchase money and interest." Hart v. R. R., 65 Mo. 509; Kerr on Fraud, 83; Hilliard on Sales, sect. 13, p. 10.
III. The plaintiff has pleaded and relied upon a plain legal title to these goods, and no proof was admissible except proof of such title. The representations as to value, and whether true or false, ought not to have been allowed to go to the jury at all on the issues in this case. Maguire v. Vice, 20 Mo. 429. The trade or exchange was not void, but only voidable. But on this petition the only sort of fraud that plaintiff had a right to show was such fraud as nullified, from the beginning, the whole transaction, and this must have been pleaded. Burrows v. Atler, 7 Mo. 424; Corby v. Weddle, 57 Mo. 459; Kerr on Fraud, 328; Crowe v. Peters, 63 Mo. 429; Davis v. Luster, 64 Mo. 43; Smith v. Sims, 77 Mo. 269.
IV. There is not the shadow of a showing of fraudulent representations. All they said was simply equivalent to the phrase, " we do not know the value of this land." Hodges v. Torry, 28 Mo. 99. They must be in reference to some material thing unknown to the vendee, as to the nature, quality, quantity, situation, and title thereof, affecting the whole subject matter of the contract. Dunn v. White's Adm'r, 63 Mo. 181; Langdon v. Green, 49 Mo. 363; Story on Sales, sects. 169, 360, 380.
V. There is no ground for complaining of the instructions. The instructions given as a whole included the propositions in plaintiff's first instruction, in plainer language and more readily understood. Besides, the instruction refused to the plaintiff is not the law of this case, but some other case. There was no testimony of this sort of " representations." The evidence shows that plaintiff did not " repose special confidence in the representations of the vendor," nor " enter into the contract on the strength of that confidence." Langdon v. Green, 49 Mo. 363.
This is an action of replevin to recover possession of a stock of hair goods, consisting of switches, puffs, curls, frizzes, fronts, bangs, etc., given to defendant in exchange for eighty acres of land in Allen county, Kansas. The plaintiff bases his suit on the fraud of defendant in misrepresenting the description and value of the land; the sole issue being one of fraud. The action was dismissed as to defendant, Reid. It has doubtless been a troublesome case, as, beginning in 1878, there have been five trials, before three nisi prius judges, the plaintiff, as he states, having had two verdicts, hung two juries, and lost at the fifth and last trial. There was evidence tending to show that plaintiff was a stranger in Kansas City, and had never seen the real estate traded him; and that he relied wholly on the representations of defendants as to the character and value of the land. That defendants had an attorney present during the negotiations, or, at least, a part of it; and that he arose several times to go out and get an attorney to come and advise him as to the correctness of everything, but defendants and the attorney persuaded him not to, saying it was not worth while and would be a useless expense on his part, as everything was all right. That defendant represented that the land was worth from one to two thousand dollars, cash; that it was well watered and timbered, and was under fence. That the title was perfect and was free from any encumbrances. That plaintiff relied wholly on these statements.
The evidence on the part of the defendant was a denial of any representations, or any effort to prevent plaintiff going to advise with an attorney, but on the other hand defendant referred him to parties acquainted with the land. That plaintiff counseled with these parties, and upon information and representations had of them, made the trade. Plaintiff appeals to this court, assigning as errors the following, to-wit:
I. The...
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