Alexander v. Wade
| Decision Date | 20 May 1904 |
| Citation | 80 S.W. 917,107 Mo.App. 321 |
| Parties | ALEXANDER, Respondent, v. WADE, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Montgomery Circuit Court.--Hon. E. M. Hughes, Judge.
Judgment affirmed.
Warner Lewis, John M. Barker and A. W. Lafferty for appellant.
(1) There was no debt contracted for on the part of the defendant, for it was a complete and executed contract and nothing left to be performed by either party, and there being no intent to defraud on the part of Wade shown, an attachment did not lie under the fourteenth subdivision of the attachment act. R. S. 1899, sec. 336; Finley v Bryson, 84 Mo. 664; Wallen v. Railroad, 74 Mo 521; Ederlin v. Judge, 36 Mo. 350; Hoagland v Railroad, 39 Mo. 451; McDonald v. Forsyth, 13 Mo. 541; Riles, Wilson & Co. v. Shelly Mfg. Co., 93 Mo.App. 178. (2) The plaintiff says that the defendant told him he had a good title to the land. That was a mere matter of opinion and does not constitute a guaranty or warranty, neither will it furnish a basis for an action for deceit nor a suit of any kind. McBeth v. Craddock, 28 Mo.App. 392; Anderson v. McPike, 86 Mo. 293; Hermann v. Hall, 140 Mo. 270.
P. H. Cullen and J. D. Barnett for respondent.
(1) The defendant has filed two separate bills of exceptions and failed to incorporate the first bill in the second or final bill. Hence the second bill can not be considered because the jurisdiction of the court was exhausted when the first bill was signed, and the first bill containing no motion for new trial there is nothing open to review. Atchison v. Railway, 94 Mo.App. 572; Goldsmith v. St. Louis Candy Co., 85 Mo.App. 595; Smith v. Baer, 166 Mo. 401. (2) The trial on the plea in abatement can not be reviewed because the defendant failed to file any separate motion for a new trial on that issue as required by statute. As a matter of fact no motion for a new trial was filed on that issue and none is incorporated in the bill of exceptions filed on that issue. R. S. 1899, sec. 407; Steele v. Steele, 85 Mo.App. 224; Lilly v. Menke, 92 Mo.App. 356. (3) It is settled law in this State that when a person has been induced by fraud to accept a contract he is not bound to rescind it in order to recover for the fraud. He may stand by it and sue upon it as the plaintiff did in this case. Jarret v. Morton, 44 Mo. 275; Parker v. Marquis, 64 Mo. 38; Shumabarger v. Shelton, 41 Mo.App. 147; McCuin v. Frazier, 38 Mo.App. 66. (4) It is also settled that in such an action the plaintiff may maintain an attachment on the ground that the debt sued for was fraudulently contracted. Glass Works v. Robertson, 73 Mo.App. 156; Finley v. Bryson, 84 Mo. 664; Blackwell v. Fry, 49 Mo.App. 638; Houghland v. Dent, 52 Mo.App. 241; Cale Mfg. Co. v. Jenkins, 47 Mo.App. 664; Warner v. Kade, 15 Mo.App. 600; Bank v. Rosenfield, 66 Wis. 292; Rosenthal v. Wehe, 58 Wis. 621. When defendant asserted he had a good title and in support of that assertion exhibited a false and forged abstract which showed a good title, plaintiff was not guilty of negligence in failing to go to Christian county and verify the abstract and the truth or falsity of defendant's statements. He had a right to rely on the statements and representations of defendant under the circumstances. Cottrell v. Krum, 100 Mo. 367; Richards v. Lee's Admr., 71 Mo.App. 230; House v. Marshall, 18 Mo. 368; Waunell v. Kem, 57 Mo. 478; Dunn v. White, 63 Mo. 181; Caldwell v. Huny, 76 Mo. 254; Arthur v. Wheeler Mfg. Co., 12 Mo.App. 335; Ency. of Law (2 Ed.), pp. 120 to 122; Och v. Railroad, 30 Mo. 71; Whitney v. Allairs, 1 N.Y. 305; Wardell v. Fosdich, 13 Johns. (N. Y.) 325; Monell v. Weeler, 13 Johns. (N. Y.) 395.
In September, 1902, plaintiff sold and delivered a stock of groceries to defendant; as payment for these goods, defendant agreed to convey land in Christian county, Missouri, described in a deed in his possession, assuming to be executed by one Joseph Ward, with the place of the name of the grantee therein left blank, and to be filled up subsequently. The testimony tended to show that defendant stated to plaintiff, that the title to the land was good, and he exhibited to him an abstract of title in reply to inquiry therefor, purporting to show that the grantor, Ward, had a perfect title to the land, free and clear of liens. That Ward had not then, and never had, title to the land, but that it was owned by and in possession of persons other than Ward, and that the accompanying abstract was fraudulent, were facts proved by plaintiff, without refutation or contradiction attempted by defendant. The barter was completed by delivery of the abstract and deed to plaintiff and of the merchandise to the defendant. When plaintiff went to Christian county to examine the property, he discovered the fraud, and after demand upon and refusal by defendant to make payment for the goods, this action was brought in two counts; the first count contained allegations, that in December, 1902, plaintiff had traded defendant a stock of groceries at an agreed price of one thousand dollars to be paid for in land in Christian county, Missouri, which defendant had failed and refused to do, and judgment for such amount, the value of the goods, was asked. The second count contained averments that plaintiff had sold and delivered to defendant a stock of goods or merchandise at an agreed price of one thousand dollars, which defendant was to pay for in land or money, and had failed or refused to do and judgment for the same sum was asked. In aid of his petition plaintiff sued out an attachment, the affidavit for which contained various grounds for its issuance, but was confined at the trial to the sole ground, that the debt sued for was fraudulently contracted on the part of the debtor.
Defendant in his plea in abatement, denied, specifically and generally, all the grounds of attachment set forth by plaintiff's affidavit, and a trial by jury was had resulting in a verdict for plaintiff, sustaining the attachment upon the ground stated. Forthwith defendant filed an answer to the merits, denying the allegations of the petition and affirmatively charging that "in the fall of 1902, plaintiff had traded defendant a stock of damaged goods, worth not over one hundred dollars, for the title papers to a section of land in Christian county, Missouri, executed by one Joseph Ward, of the State of Colorado, with the name of the grantee left blank in the conveyance; that the plaintiff had accepted said title papers in full satisfaction for said stock of goods, without any warranty or guaranty from defendant; that the goods and title papers had all been delivered and said contract had been fully performed and executed;" and a general denial in the reply completed the issues. The parties then proceeded to a trial upon the merits before the same jury, and upon testimony, practically a repetition of that introduced upon the plea in abatement, the jury found for plaintiff.
Defendant filed, thereupon, a single motion to set aside the verdict and judgment on the plea in abatement and on the merits manifestly designed to perform joint service for both trials and entitled as such motion for both, which was overruled, and defendant filed two disconnected bills of exceptions, one for each trial. Obviously appellant could not embody an exception to the overruling of his single motion for a new trial in both bills of exceptions; nor could he incorporate an exception to the overruling of his motion for a new trial on the plea in abatement in his bills of exceptions filed in the trial on the merits. The bill of exceptions filed on trial in...
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