McBeth v. Craddock

• Citation: 28 Mo.App. 380
• Parties: SUSAN V. MCBETH, Respondent, v. W. H. CRADDOCK, Appellant.
• Decision Date: 24 December 1887
• Court: Court of Appeals of Kansas

28 Mo.App. 380

SUSAN V. MCBETH, Respondent, v. W. H. CRADDOCK, Appellant.

Court of Appeals of Missouri, Kansas City.

December 24, 1887

APPEAL from Jackson Circuit Court, HON. TURNER A. GILL, Judge.

Affirmed.

Statement of case by the court.

This is an action for fraud and deceit. The petition alleges that plaintiff was the owner of certain household effects in Kansas City, of the value of seven hundred and fifty dollars on which she owed one hundred and thirty-five dollars; that about January 1, 1884, one P. W. Alley offered to buy said property, by paying sixty-five dollars in cash, assuming the payment of the claim of one hundred and thirty-five dollars and by executing to plaintiff four notes, each for $137.50 to be secured by a second mortgage on a tract of one hundred and sixty acres of land, which he said he owned in Greenwood county, Kansas; he represented this land to be worth three thousand dollars or more; that there were one hundred acres in cultivation and that the balance was good timber, and that there was a mortgage on the same to this defendant for sixteen hundred dollars for borrowed money, and referred plaintiff to defendant, of whom inquiry could be made as to the correctness of these representations; the plaintiff thereupon called upon the defendant and stated to him fully the representations so made to her by said Alley, and inquired of him as to their truthfulness; defendant said they were correct, and he then represented to plaintiff that he well knew the Alley land in said Greenwood county, and that, to his knowledge, Alley had been offered eighteen dollars per acre for the same, and that the land was worth thirty-two hundred dollars; that one hundred acres of it was in cultivation and the balance in timber, and that he held a mortgage on the same for sixteen hundred dollars borrowed money, but that it was abundant security above that for the four notes proposed to be given by Alley to the plaintiff, and he spoke strongly of the same as a perfectly safe venture. Plaintiff says that the trade between herself and said Alley was being negotiated by one Haller, who was connected with the real-estate firm of Johnson & Wright, and before said trade was closed defendant represented to said Haller that Alley owned one hundred and sixty acres of land in Greenwood county, Kansas, on which he held a mortgage for sixteen hundred dollars; that said land was worth three thousand dollars, and had one hundred acres in cultivation and the balance in good timber. Plaintiff says that neither said Alley nor the defendant gave to her the numbers of said land, but it was spoken of as that on which the defendant held a mortgage for sixteen hundred dollars, and lying in Greenwood county, Kansas. In pursuance of said representations, and relying on the same, on January 3, 1884, she transferred to said Alley said personal property for the sum of sixty-five dollars in cash, the payment of the one hundred and thirty-five dollar claim, and four notes given by said Alley to plaintiff, each for the sum of $137.50, secured by a mortgage on the southwest quarter of section 9, township 23, range 10, in said Greenwood county, and which was represented by said Alley to be the property on which the defendant held said mortgage, and in said mortgage the representation was made that one hundred acres of said land was in cultivation and the balance was in timber. Afterwards, on or about March 12, 1884, a deed was received by plaintiff through the postoffice, executed by said Alley and wife, conveying to plaintiff the southwest quarter of section 2, township 26, s., of range 8, east, in said county of Greenwood, and about the same time said Alley disappeared from Kansas City. This deed was exhibited to the defendant by plaintiff, and inquiry made as to its meaning, and he then said that Alley had made a mistake in the mortgage, and that the last-named deed conveyed the property which should have been described in the mortgage by Alley to plaintiff, and represented that the land described in the deed was that upon which he held the sixteen hundred-dollar mortgage. Soon thereafter, about May 21, 1884, the defendant represented to plaintiff that he had discovered that the deed, as aforesaid, of March 12, 1884, did not contain the proper land, and that, as it was his mistake in conveying the said land to said Alley, he would correct it by making a deed directly to plaintiff, which he did, conveying the southwest quarter of section 2, township 26, s., of range 8, in said Greenwood county, Kansas, and he then represented that this was the same land which he had referred to when first called on by plaintiff before she had transferred her furniture to said Alley, and which land was chargeable with the sixteen hundred-dollar mortgage, and he again repeated that the land was worth over three thousand dollars, and abundant security for the five hundred and fifty dollars, so due to plaintiff, and that, of said land, one hundred acres were in cultivation and the balance in good timber. Plaintiff says that defendant concocted the scheme to cheat and defraud plaintiff, and employed and used said Alley as a tool; that all the representations made by both said Alley and defendant concerning said land were false, and known by them to be false when made, and that they were made for the purpose, and with the intent, on the part of both, to cheat and defraud the plaintiff, and said land was not improved or timbered, nor worth three thousand dollars, but was wholly unimproved and uncultivated, rocky and broken, and not worth, clear of all incumbrances, to exceed five hundred dollars. Plaintiff says that she parted with her property and took said notes therefor, relying entirely upon the representations of the defendant as to said land; that Alley was a stranger to her, and that he is wholly insolvent, and nothing can be realized from said land, and that, by such false and fraudulent representations, her property, as aforesaid, of the value of five hundred and fifty dollars, has been wholly lost to her. Wherefore, she asks judgment against the defendant for said sum of five hundred and fifty dollars, and interest, and the cost of suit.

The answer admitted the arrangement between plaintiff and Alley, and the mistake in the description of the land as given by Alley, and the correction thereof by his deed, but says it was done in good faith by him. Denies the other allegations of the petition; and alleges that plaintiff has not paid the sum of sixteen hundred dollars.

The plaintiff's evidence fully sustained the allegations of the petition. It also shows that, as a matter of fact, the defendant had never loaned any money to Alley or taken any mortgage on the land; that defendant owned the land himself, and had merely given Alley, who was known to be insolvent, an option on his land, by paying defendant the sum of sixteen hundred dollars, the title all the time remaining in defendant. Alley disappeared shortly after this transaction, having disposed of the property he so obtained from plaintiff.

The defendant's testimony tended to show that he acted in good faith in the matter, though his testimony was evasive as to the representations he made. His evidence also tended to show that, after he made his statements to plaintiff, he told her not to rely upon them. He, however, repeated the statements and assurances to plaintiff about the quality, situation, and value of the land, at the second meeting, when he made her the deed to the land, on her assumption of the sixteen hundred-dollar claim.

The instructions for the plaintiff, excepted to by defendant, are as follows:

" 3. If the jury believe, from the evidence, that the plaintiff, in negotiating a sale of her property to Alley was requested by him to inquire of the defendant as to the character of the land upon which he proposed to give a second mortgage to secure the notes to be given for said property, being ignorant himself of the value, condition, and locality, and if she made such inquiry, and the defendant informed her that he was acquainted with said land, and that it was worth three thousand dollars, and that Alley had been offered eighteen dollars an acre for the same; that there were one hundred acres in cultivation and the balance in timber with water upon it, and that he had a mortgage upon it for sixteen hundred dollars, but that a second mortgage to secure five hundred and fifty dollars would be good, now, if such representations were false, and known by the defendant to be false, when he made them, and if the plaintiff believed said representations to be true, and relying upon them as true, was induced thereby to sell her property to said Alley, and take in payment therefor sixty-five dollars in cash, and agreement by him to pay one hundred and thirty-five dollars incumbrance thereon, and four notes of one hundred and thirty-seven dollars and fifty cents, secured by a second mortgage on said land, and if plaintiff has sustained any loss by reason of taking said notes and second mortgage, then you must find for plaintiff."

" 4. The jury are instructed that if they find for the plaintiff they will assess her damages at the value of said goods, if any, over and above the sixty-five dollars cash paid and one hundred and thirty-five dollars assumed, but not to exceed the sum of five hundred and fifty dollars, and to this the jury may add interest at the rate of six per cent. per annum from the date of filing this suit."

" 5. Although the jury may believe, from the evidence, that the defendant stated to the plaintiff that she ought not to rely upon his representations, and that he did not advise the taking of the second mortgage on said land, yet, if you believe that such statements were not made in

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