Adams v. Barber

• Decision Date: 08 May 1911
• Citation: 139 S.W. 489,157 Mo.App. 370
• Parties: C. L. ADAMS, Respondent, v. S. J. BARBER, Appellant
• Court: Missouri Court of Appeals

139 S.W. 489

157 Mo.App. 370

C. L. ADAMS, Respondent, v. S. J. BARBER, Appellant

Court of Appeals of Missouri, Springfield

May 8, 1911

Motion for Rehearing Overruled, July 20, 1911.

Appeal from Jasper Circuit Court.--Hon. David E. Blair, Judge.

REVERSED AND REMANDED.

STATEMENT.--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 $ 3840, 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, Missouri, and the defendant owned 480 acres of land in Logan county, Arkansas; 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 $ 5100 or $ 5200, and the plaintiff taking the land at eight dollars per acre, amounting to $ 3840, 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 $ 4000, 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 Missouri, 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 Missouri, 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: Enclosed 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."

"Four hundred and eighty 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 one 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 and that he (Fishburn) knew of Barber's dealings and considered him square and honest and thought the land to be as represented, and also if it was not as described that Adams could come back on Barber. Whereupon, plaintiff decided not to go and look at the land but to close the deal. The defendant was then called in and the trade was closed, the parties entering into the written contract. At the time of closing the trade, defendant testified he did not know that Fishburn had said anything to plaintiff to induce him to refrain from examining the land before he closed the deal.

The testimony also shows that defendant, during the negotiations and before the deal was closed, stated to plaintiff that he had not been on the land except one corner. According to defendant's theory, the statements and representations made by the defendant to plaintiff about the land were not based upon his personal knowledge of the land but upon representations made to the defendant by one Calhoun from whom defendant bought the land.

The testimony shows that the market value of improved valley land in the vicinity of the 480 tract was from eight to ten dollars per acre, that unimproved valley land was worth about five dollars an acre, and improved mountain land was worth about two and one-half dollars per acre. The evidence tended to show that the 480 acres was on the side of Magazine Mountain, was rough and rocky, and too broken for cultivation and covered with bluffs fully twenty feet high and so steep that a man would have to climb a tree to get up, and that the 480 acre tract was worthless.

After the sale, the plaintiff having examined the land and ascertained its condition, tendered defendant a deed and asked a rescission of the contract. Both plaintiff and defendant claimed that Fishburn was not his agent during the negotiations, but afterwards each party paid him the sum of fifty dollars, each claiming said payment not to be a commission, but to be a mere gratuity. It may be mentioned here that the total stock of merchandise invoiced at the agreed price of $ 4521.88. On October 8, 1909, the deed to the 480 acre tract was delivered to plaintiff and the difference in cash was paid him and defendant took possession of the merchandise consummating the deal.

The court at plaintiff's request gave the following instructions:

"1. The court instructs the jury that if they find and believe from the evidence that on or about the 23d day of September 1909, plaintiff and defendant entered into a contract whereby plaintiff sold to defendant a stock of merchandise, fixtures and furniture in the city of Sarcoxie, Missouri, and was to receive in payment therefor 480 acres of land located in Logan county, Arkansas, at and for the price and sum of $ 8 per acre; that defendant represented to plaintiff that said land was fine grazing and fruit land, and was noted for its fine onions and fruits of all kinds; that perhaps half of the land could be put in cultivation and the balance used for fruit; that the soil was a sandy loam with clay subsoil, and if the jury believes that plaintiff, in trading for said land relied on the representations of said defendant, and if the jury believes further that the plaintiff and defendant invoiced said stock of goods, fixtures and furniture to the defendant and that the same amounted to $ 5034.29; that the defendant accepted and agreed to pay that amount for said goods, fixtures and furniture, and deeded the Arkansas land to plaintiff in payment therefor to the amount of...