Brooking v. Shinn

• Decision Date: 28 March 1887
• Citation: 25 Mo.App. 277
• Parties: EDWARD BROOKING, Respondent, v. EZRA W. SHINN, Appellant.
• Court: Kansas Court of Appeals

25 Mo.App. 277

EDWARD BROOKING, Respondent, v. EZRA W. SHINN, Appellant.

Court of Appeals of Missouri, Kansas City.

March 28, 1887

APPEAL from Clinton Circuit Court, HON. GEORGE W. DUNN, Judge.

Affirmed.

The case is stated in the opinion.

THOMAS E. TURNEY, for the appellant.

I. The court erred in giving the declaration of law prayed by the plaintiff, because: It does not require that the representations complained of should have been made with a fraudulent intent. This is the foundation and gist of an action for deceit. Cooley on Torts, 475; Griswold v Sabin, 12 Am. Rep. 76; Joliffe v. Collins, 21 Mo. 338; Peers v. Davis, Adm'r, 29 Mo. 184; Owens v. Rector, 44 Mo. 390. " The gist of an action for wilful and fraudulent misrepresentations and concealments is the actual evil intent of the defendant," and " the intent is not a necessary conclusion of law from his acts." Pope v. Hart, 35 Barb. (N. Y.) 630. The declaration, which assumes to cover every issue in the case, and is equivalent to a special verdict, says that only these facts must be proved: (1) That the defendant represented that the farm contained two hundred acres, knowing at the time that such representation was untrue, and second, that the plaintiff relied upon the representation and was induced by it to purchase the farm, as containing two hundred acres, without making further investigation. The omission is not harmless. Unless the testimony introduced by the defendant is entirely disregarded, there is the most persuasive evidence that no fraud was intended. When the defendant learned that the plaintiff said that he had been deceived by defendant's representations, he at once offered to rescind the trade. At this time, the condition of the parties had not been changed. " Douglass had turned over nothing." (2) It does not require that the representations should have caused damage to the plaintiff. Cooley on Torts, 475. It may be argued that the damage necessarily follows, when the false representation is of the number of acres of land to be conveyed. But this ignores the testimony of defendant's witnesses, which was intended to establish, and certainly does tend to establish, that plaintiff would have purchased the land at the same price, if he had known that it contained only one hundred and eighty-six acres. The plaintiff could not recover for the deficiency, in a suit upon the deed because it conveys two hundred acres, more or less, and because the purchase was of the farm, and not of the tracts of land by the acre. He would not rescind the contract when that was proposed by the defendant, and he elects not to rescind now, which he could do, by proving the facts required by the declarations. Electing to stand by his purchase and sue for damages for the deceit, he must show that the deception was intentional and that he was damaged by it. Owens v. Rector, supra.

II. The defendant's third declaration should have been given. Langdon v. Green, 49 Mo. 363; Dunn v White's Adm'r, 63 Mo. 181; Colliers v. Harkness, 26 Ga. 362; Buford v. Caldwell, 3 Mo. 477.

III. The motion for a new trial should have been sustained, because the evidence does not warrant the finding and judgment. Langdon v. Green, 49 Mo. 363; Saunders v. Hatterman, supra; Dunn v. White's Adm'r, supra.

IV. The motion in arrest should have been sustained, because the judgment is for two hundred and sixty-six dollars, while the damages alleged are two hundred and sixty dollars.

THOMAS J. PORTER, for the respondent.

I. " A cause will not be reversed by reason of erroneous instructions which could not have prejudiced the appellant." Breckinridge v. American Central Ins. Co., 87 Mo. 62; Brink v. Railroad, 17 Mo.App. 629. A refusal to give an instruction is not equivalent to the assertion of the converse proposition of law. Nile v. Davis, 19 Mo. 408.

II. While the " gist of an action for wilful and fraudulent misrepresentation and concealment is the actual evil intent," and " the intent is not a necessary conclusion of law from his acts," " yet the known falsity of a representation is strong evidence of a purpose to practice a fraud." Jolliffe v. Collins, 21 Mo. 342, par. 2; Peers v. Davis, Adm'r, 29 Mo. 189.

III. The court will not reverse for the reason that the judgment is for six dollars more than the damages alleged, but will afford an opportunity to respondent, and allow a remittitur of the excess. Auchencloss v. Frank, 17 Mo.App. 41; West v. Ice Co., 19 Mo.App. 547.

PHILIPS P. J.

This is an action to recover damages for an alleged false and fraudulent representation made by defendant to plaintiff in the sale of land, as to the number of acres contained in the farm. The allegation is, that the defendant falsely and fraudulently represented the number of acres to be two hundred, knowing the same to be false; that the tract contained, in fact, only one hundred and eighty-six acres. Damages laid at two hundred and sixty dollars, with prayer therefor, and interest on that sum.

The cause was tried by the court, without the intervention of a jury. The court found the issues for the plaintiff, and rendered judgment for the sum of two hundred and sixty-six dollars. Defendant has appealed.

Complaint is principally made by appellant against the following declaration of law, given by the court at plaintiff's instance:

" The court declares the law to be, that if the defendant represented the land in question to contain two hundred acres, knowing such representation to be untrue at the time, and the plaintiff relied on the representation as true, and was induced thereby

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