American Hardwood Lumber Co. v. Dent
| Citation | 98 S.W. 814,121 Mo.App. 108 |
| Parties | AMERICAN HARDWOOD LUMBER COMPANY, Respondent, v. DENT, Appellant |
| Decision Date | 30 October 1906 |
| Court | Court of Appeal of Missouri (US) |
Appeal from St. Louis City Circuit Court.--Hon. Matt. G. Reynolds Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
R. P and C. B. Williams and F. M. Curlee for appellant.
(1) Where parties are not dealing at arms-length or on an equal footing; or where one party to the contract being ignorant of the value of a commodity, relies upon the other to inform him, that other, if he speaks at all, must speak the truth and if he speaks falsely the general rule regarding "dealers' talk" does not apply. McBeth v. Craddock, 28 Mo.App. 396; Stones v. Richmond, 17 Mo.App. 17; Wannell v. Kem, 57 Mo. 478; Cottrill v. Krum, 100 Mo. 397; Cahn v. Reid, 18 Mo.App. 115; Pickard v. McCormick, 11 Mich. 68; Stoll v. Wellborn (N. J. Chan. 1903), 56 A. 894; Smith v. Countryman, 30 N.Y. 655; Peck v. Jenison, 99 Mich. 326; Maxted v. Fowler, 94 Mich. 106; Russell v. Peay, 2 Speers (S. C.) 217; 14 Am. and Eng. Ency. of Law (2 Ed.), p. 125. (2) A representation as to the market price of a commodity is one of fact, and is not mere matter of opinion or "dealers' talk." Distinctions between opinions and statements of fact: 20 Cyc., p. 52; Strand v. Griffith, 97 F. 854, 38 C. C. A. 444; Manning v. Albee, 11 Allen 520; Com. v. Wood, 142 Mass. 459. (3) In order to avoid a contract for fraud, it is not necessary that the fraudulent representation should have been the sole inducement to the contract, nor to show that the contract would not have been made in the absence of fraud; but it is sufficient ground for the avoidance of a contract to show that the fraud induced, in any degree, to the making of same. Burnham & Co. v. Ellmore, 66 Mo.App. 620; Saunders v. McClintock, 46 Mo.App. 223; Becroft v. Grist, 52 Mo.App. 589.
Muench, Walther & Muench for respondent.
(1) In order to make out a case of false representations, the following elements must be present: (1) The representation must be made as to a material fact; (2) must be false; (3) must be of such character that the other party had a right to rely upon it; (4) must be accompanied by knowledge that it was false, or what the law regards as equivalent to actual knowledge, and by an intent to deceive; (5) must be relied upon by the other party and deceive him to his damage. 14 Am. and Eng. Ency. of Law (2 Ed.), 23; Nauman v. Oberle, 90 Mo. 666; Anderson v. Pike, 86 Mo. 293; Wade v. Ringo, 122 Mo. 326; Hodges v. Torrey, 28 Mo. 103; Green v. Worman, 83 Mo.App. 568. (2) Fraudulent representation as to the value of a thing usually amounts only to an expression of opinion and affords no ground for relief. Harrison v. Waldon, 89 Mo.App. 164; Ellis v. Andrews, 56 N.Y. 83; 14 Am. and Eng. Ency. of Law (2 Ed.), 124. (3) It is not error to refuse instructions, the principles of which are included in other instructions given. State v. Gates, 130 Mo. 351; Keim v. Railway, 90 Mo. 314; Best Bros. v. Kempf, 64 Mo.App. 460.
--Plaintiff sues for the breach of a contract in which defendant agreed to manufacture, sell and deliver to plaintiff, at Newton, Mississippi, prior to January 1, 1903, five hundred thousand feet of hardwood lumber of various kinds and grades. The contract was written and was dated August 21, 1902. Defendant admitted the execution of the contract and its non-performance, alleging that it was voidable because obtained from defendant by fraud. The allegations in support of this defense are that defendant had no knowledge of the value of the kinds of lumber set out in the contract and, during the negotiations between himself and plaintiff, so advised the latter; that plaintiff stated to defendant that the prices for the different kinds of lumber agreed to be furnished were the market prices then ruling and on such knowledge and information the contract was closed; that the prices stipulated, in consequence of plaintiff's false representations and defendant's reliance thereon, were much below the market prices at the time, as plaintiff well knew and by reason thereof the contract never became operative. It was further alleged that at the time of and prior to making the contract, defendant was engaged in the manufacture and sale of softwood lumber and plaintiff was a dealer in hardwood lumber, that plaintiff came to Mississippi and induced defendant to enter into the contract in question, defendant informing plaintiff that he had no knowledge of the value and prices of hardwood lumber and the cost of manufacturing the same, and that defendant relied on the statements of plaintiff as to prices and values of the lumber.
The contract was arranged by defendant and plaintiff's agent George H. Cottrill. A perusal of the evidence has convinced us that the testimony of the defendant and some other testimony for him, tended to support the allegations of the answer that defendant was ignorant of the prices of hardwood lumber, so stated to Cottrill and relied on the representations made by Cottrill regarding the prices of it and that those prices were considerably below the real prices; that Cottrill undertook to give defendant the market prices as the basis for the contract and defendant accepted his statements as true. The testimony for the plaintiff was quite to the contrary and goes to show that defendant did not rely on Cottrill's statements and, further, that the latter stated the true market prices for the different grades of lumber then current. Defendant never entered on the performance of the contract, but early in September repudiated it by letter. No question is raised about the rescission not being prompt. The letter assigned as reasons for defendant's refusal to perform, that the agreed prices were too low and that plaintiff would not advance enough money on lumber cut and piled by defendant, to enable him to perform the contract. Though defendant's letters and statements elicited from him on cross-examination, materially weakened his defense, we cannot say the judgment was so obviously for the right party that errors committed at the trial ought to be disregarded. In view of the contradictory testimony, the decision of the appeal must turn on the declarations of law given by the court, the cause having been tried without a jury. Exceptions were saved to the rulings on the declarations requested, and the court having entered judgment in plaintiff's favor, the defendant appealed.
The court declared there could be no judgment for defendant unless it was found that Cottrill represented the...
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