Adams v. Barber

• Citation: 139 S.W. 489,157 Mo. App. 370
• Parties: ADAMS v. BARBER.
• Decision Date: 08 May 1911
• Court: Court of Appeal of Missouri (US)

139 S.W. 489

157 Mo. A. 370

ADAMS v. BARBER.

Springfield Court of Appeals, Missouri.

May 8, 1911.

Rehearing Denied July 20, 1911.

1. FRAUD (§ 13) — ELEMENTS — SCIENTER.

Scienter is an essential element of actionable fraud.

2. FRAUD (§ 1) — "FRAUDULENT."

"Fraudulent" means using fraud, trickery or deceit; dishonest.

3. FRAUD (§ 45) — PLEADING (§ 433) — REQUISITES.

While one suing for deceit must aver that the representations were made with knowledge of their falsity, the averment is sufficient, especially after the verdict, if it can be fairly inferred that defendant falsely and fraudulently deceived plaintiff.

4. FRAUD (§ 45) — PLEADING — SUFFICIENCY

A petition for damages for falsely representing the quality of land exchanged, alleging that defendant made the representations fraudulently and intentionally to induce plaintiff to enter the contract, sufficiently pleaded defendant's knowledge of the falsity of the representations.

5. FRAUD (§ 47) — PLEADING — SUFFICIENCY.

A petition for fraudulently misrepresenting the quality of land exchanged for plaintiff's stock of goods alleging that defendant traded 480 acres at $8 an acre in payment for the stock, that defendant was to pay the difference in cash, that the stock invoiced about $5,000, that the trade was consummated, and that through the false representations plaintiff was damaged $4,000, sufficiently showed the nature of damages claimed.

6. FRAUD (§ 31) — REMEDIES.

One defrauded has a choice of remedies, and while his affirmance of the contract may preclude rescission he may rescind and yet sue for deceit.

7. BROKERS (§ 102) — REPRESENTATIONS BY AGENT — CONCLUSIVENESS UPON PRINCIPAL.

Representations by a broker concerning the quality of land traded by defendant to plaintiff bind defendant in a suit for fraudulent representations if they were made pursuant to design between the broker and defendant, or if the broker acted as defendant's agent.

8. FRAUD (§ 65) — MISREPRESENTATIONS CONCERNING LAND — INSTRUCTIONS — KNOWLEDGE OF FALSITY.

In an action for misrepresenting the quality of land traded by defendant to plaintiff, the instructions should present an issue whether the representations were made as of defendant's own knowledge, and not as a matter of opinion or general assertion concerning a matter of which he had no knowledge.

9. BROKERS (§ 102) — REPRESENTATIONS BY — CONCLUSIVENESS UPON PRINCIPAL.

If a broker who brought about an exchange of defendant's land for plaintiff's stock represented defendant only, or represented both parties, representations made by him to plaintiff in acting for defendant bind defendant.

10. FRAUD (§ 59) — MISREPRESENTATIONS CONCERNING LAND — DAMAGES.

A purchaser of land, defrauded by misrepresentations as to its value, is entitled to the difference between the actual value of the property and the value it would have had had the representations been true.

11. VENDOR AND PURCHASER (§ 37) — CONTRACTS TO PURCHASE — DOCTRINE OF CAVEAT EMPTOR — APPLICABILITY.

The doctrine of caveat emptor does not apply to a contract for the purchase of land situated

in another state, the purchaser not having an opportunity to examine.

12. APPEAL AND ERROR (§ 882) — INSTRUCTIONS — RIGHT TO COMPLAIN OF.

Neither party can complain of instructions given under an erroneous theory adopted by both at the trial.

13. FRAUD (§ 54) — MISREPRESENTATIONS CONCERNING LAND — EVIDENCE.

In an action for misrepresenting the quality of land in another state, traded by defendant to plaintiff, evidence as to an agreement that plaintiff was to examine the land for himself and as to inducements held out by a broker not to examine was properly considered on the question whether defendant fraudulently and intentionally made false representations to induce the trade, or whether he made them as of his own knowledge when in fact he had no knowledge.

Appeal from Circuit Court, Jasper County; David E. Blair, Judge.

Action by C. L. Adams against S. J. Barber. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

This was an action for damages for deceit. The respondent traded a stock of goods for 480 acres of land, and respondent charged in his petition that the trade was procured by the fraudulent representations of the appellant. Judgment was rendered for plaintiff below for $3,840, from which the defendant appealed.

The plaintiff in his petition alleged that prior to the 23d day of September, 1909, he owned a stock of merchandise and fixtures at Sarcoxie, Mo., and the defendant owned 480 acres of land in Logan county, Ark.; that on said day the plaintiff and defendant entered into an agreement whereby they exchanged properties, the defendant taking plaintiff's stock at marked prices, estimated at $5,100 or $5,200, and the plaintiff taking the land at $8 per acre, amounting to $3,840, the defendant paying the plaintiff the difference in cash; that the plaintiff was induced to make said exchange by false representations of the defendant as to the quality of the land; that the defendant falsely represented that "said land was good grazing land; supposed to be underlaid with coal; would grow alfalfa or any crops that Missouri would grow; that the timber should be sufficient to pay for the land; that it was noted for its fine onions, and fruits; that one-half could be put into cultivation and the balance used for fruits; that the soil was a sandy loam with clay subsoil"; that at the time of making the exchange plaintiff had not seen the land; that the agent, or "go-between," who brought the parties together, represented to plaintiff that defendant was financially responsible, was a square fellow, and would guarantee the land to be as described, and thereby prevented the plaintiff from going to see the land; that after plaintiff had made the trade and ascertained the real condition of the land he and his wife executed a deed to the defendant for the land, tendered the same to the defendant, and demanded that defendant return to plaintiff the said stock of merchandise and fixtures or pay to the plaintiff the value at which the land was taken, which the defendant refused; and that by reason of said false representations, exchange of properties, and defendant's refusal to rescind or refund the value at which the land was taken by plaintiff, the plaintiff had been damaged in the sum of $4,000, for which he prayed judgment. The petition does not state the actual value of the stock of merchandise and fixtures, nor the value of the land as it existed, nor what the value of the land would have been if it had been as represented. The answer was a general denial.

The case was tried before a jury on the 23d day of June, 1910. At the opening of the trial the defendant objected to the introduction of any evidence for the reason that the petition does not state facts sufficient to constitute a cause of action, and for the reason that the alleged representations as appearing on the face of the petition were simply expressions of opinion of the defendant as to the character of the land and what it would produce and how much of it could be put in cultivation, and it did not appear that the opinion so expressed was not an honest opinion and was not believed to be true by the defendant; which objection the court overruled, the defendant excepting.

The evidence showed that the plaintiff, a resident of Sarcoxie, Mo., was the owner of a stock of merchandise and fixtures and desired to dispose of them; that prior to the exchange of the properties the plaintiff told the witness Fishburn, the "go-between," an old acquaintance who was engaged in the real estate business at Carthage, Mo., to get him a customer for said stock of goods; that Fishburn then went to defendant, a resident of Carthage, and obtained a written description of his land and sent it to the plaintiff, requesting him to come to Carthage and talk with the defendant about the trade. This description, which constituted the defendant's representations as to the tract of land and constituted the basis of the trade, and Fishburn's letter to plaintiff, are as follows:

"Mr. Charley Adams, Sarcoxie, Mo. Friend Charley: Inclosed please find description of 480 acres of land. The owner is here now, and if you can come down in the morning do so, and you can talk to him in person. He is a square fellow and he will guarantee the land to be as described. He wants $8 an acre and will pay you the difference in cash. Take your goods at invoice. Come down in morning as you can deal with him, and I consider his land worth the money. Very truly yours, M. P. Fishburn."

"480 acres in Logan county, Ark., 4 miles from Havana, Yell county, Ark. Timber is oak and pine. Land broken but fine grazing land and fruit land; supposed to be underlaid with coal. Writer has seen croppings and had samples 1 mile west of this land and it is claimed this tract shows more coal out-croppings. Coal fine quality. Land will raise alfalfa and any crop Missouri will raise; is noted for its fine onions and fruits of all kinds. Timber should pay for land. Perhaps half could be put in cultivation. Balance used for fruit. Finest of water. Soil, sandy loam, with clay subsoil."

Adams did not go to Carthage, and Fishburn states: "I knew of Mr. Barber having this land. I saw Mr. Barber, talked to him, and framed up a deal which Mr. Barber would agree to make if the goods were satisfactory." Fishburn took defendant to Sarcoxie and introduced him to plaintiff and a deal was agreed on, provided the land suited the plaintiff, and it was agreed that plaintiff was to go and see the land before closing the deal. The defendant was then ready to return to his home in Carthage, but, as defendant's evidence tends to show, as he was leaving the store, Fishburn and plaintiff went to the rear of the store and had a private conversation, in which Fishburn in substance said to Adams, the plaintiff, that he (Adams) had a written statement of the land,...