Anderson v. McPike

Citation86 Mo. 293
PartiesANDERSON et al. v. MCPIKE, Appellant.
Decision Date30 April 1885
CourtMissouri Supreme Court

[COPYRIGHT MATERIAL OMITTED]

Appeal from Macon Circuit Court.--HON. ANDREW ELLISON, Judge.

REVERSED.

The following is the instruction mentioned in the opinion of the court.

“3. The court instructs the jury that the claim made by Means is not a valid one as against the plaintiffs, and cannot be enforced against them, unless the jury find, from the evidence in the case, that McPike, in making the purchase at the trustee's sale of said land made by J. B. Smith, bought the same for Modisett and not for himself, and it devolves upon the plaintiffs to show this by a preponderance of testimony, and if the plaintiffs have failed to do so, then the verdict of the jury should be for defendant on that issue, although the jury may believe from the testimony that Geo. F. Hatch, attorney for Means, gave notice to McPike, at the sale, of the existence of the bond, unless the jury further find that J. B. Smith had notice of Means' claim at the time he accepted the deed of trust from Modisett.”D. H. McIntyre and W. H. Biggs for appellant.

(1) False representations by a vendor as to the value of the property sold cannot be made the basis of an action for deceit. The vendee has no right to rely on them. Gordon v. Parmelee et al., 2 Allen (Mass.) 212; Sanford v. Handy, 23 Wend. 260; Van Epps v. Harrison, 5 Hill (N. Y.) 63; Crank v. Cole, 10 Ind. 485; Kerr on Fraud and Mistake, 82-88; 2 Kent Com., top. p. 486 (12 Ed.). (2) The court committed error in permitting Reuben Anderson to testify as to appellant's declarations and statements when the parties had met for the purpose of effecting a compromise. 1 Greenl. Evid. (12 Ed.) sec. 192; Williams v. Thorp, 8 Cow. (N. Y.) 201. (3) The court should have sustained appellant's objection to the reading in evidence of the title bond from Modisett to Means, dated March, 1866. Fox v. Hall, 74 Mo. 315. (4) The court erred in permitting the respondents to read in evidence quit-claim deed from Modisett to Means, dated June 26, 1876. Hone v. Van Winkle, 3 C. E. Green (N. J.) 495. (5) There should have been no testimony admitted in regard to representations by appellant as to the financial condition of Modisett, or the value of his property and the amount of his indebtedness. Arthur v. Barrows, 41 Conn. 287; Wellington v. Small, 3 Cush. 145. (6) The paper purporting to be the first or original answer of defendant and signed by George W. Foster, attorney, should not have been read in testimony against the defendant, without first proving that the attorney signing the answer had authority so to do, or had been employed in the case by defendant. Foster was not attorney of record for defendant, except so far as shown by this paper. Sone v. Palmer, 28 Mo. 539; Foster v. Wiley, 27 Mich. 244; Weiland v. White, 109 Mass. 392. The statement in the paper that defendant bought the land at trustee's sale for Modisett, was prejudicial to defendant's case. (7) The third instruction asked by appellant and refused by the court, properly declared the law. Hill v. Paul, 8 Mo. side p. 482; Helm v. Logan's Heirs, 4 Bibb (Ky.) 78.

Thos. J. C. Fagg for respondents.

(1) The court committed no error in permitting plaintiffs to prove representations of defendant as to the amount of property owned by Modisett and his ability to pay his debts, and as to the condition and value of the lands he conveyed to them. Vernon v. Keys, 12 East, 632. (2) The court committed no error in permitting Reuben Anderson to testify to defendant's declarations at the time they made an effort to compromise. 1 Greenl. on Evid., sec. 192. and cases cited; Snow v. Batchelor, 8 Cush. 513. (3) There was no error in admitting in evidence the title bond from Modisett to Means. Fellows v. Wise, 55 Mo. 413. (4) The court committed no error in allowing plaintiffs to read the original answer filed by defendant in this cause. 58 Mo. 75; Weeks on Attorneys, sec. 185. (5) The instructions properly declared the law, and, upon the whole, placed the case before the jury very favorably to defendant. The instructions asked by defendant and refused were manifestly erroneous. If plaintiffs were deceived by false statements and sustained damages, they had their election to rescind or sue for damages. Owens v. Rector, 44 Mo. 389. (6) There was no misjoinder. See Bliss on Code Pleading, sec. 411. Not having demurred to the petition it must be treated as having been waived. Russell et al. v. Defrance, 39 Mo. 506; Kerr v. Bell, 44 Mo. 120; 68 Mo. 454; 50 Mo. 158.

SHERWOOD, J.

Plaintiffs brought this action for damages based upon false representations charged to have been made to them by defendant, in effecting a sale to them of a farm in Ralls county, in February, 1873. The false representations are alleged to consist in statements made by the defendant as to the quality, title, and value of the land thus sold to them, as well as to Modisett's financial condition, whereby plaintiffs were induced to accept the farm and to surrender notes held by them against Modisett, whom the petition alleged was perfectly solvent, had abundant property to pay all of his debts, and that plaintiffs could easily have compelled payment of said notes, but, being ignorant of the facts, were deceived by defendant, on whose fraudulent representations they relied. The petition thus contained three elements as bases of recovery: (1) False representations as to Modisett's financial condition. (2) As to the value of the land. (3) As to the title.

I. On the first point, evidence touching fraudulent representations made by defendant as to Modisett's financial condition was admissible if they were the means of inducing plaintiffs to surrender their notes to defendant. If it was true that such representations were made and induced that result, then an action on the case would lie, as there would be fraud, coupled with injury, and it would resemble, in this respect, cases where fraudulent acts or representations were successful in defeating a judgment or attachment lien, such lien being regarded as a vested or specific right, an injury thereto capable of being definitely ascertained and estimated. Cases, therefore, cited by counsel respecting fraudulent acts or representations as to a debtor's financial condition, in consequence of which creditors failed to secure a lien on his property and thereby lost their debts, are obviously inapplicable in the present case; for here, there was a loss, if it be true that such misrepresentations were in truth and in fact made and resulted in the way stated. But it is by no means clear that any such false representations were made by defendant. An examination of the testimony induces the belief that there was no evidence on this point. If this be true, then that element was eliminated from the case and should not have been submitted to the jury, and even if there were testimony on the point mentioned it was improper to leave the jury to conjecture as to what were material false statements.”

II. ( a) Relative to false representations as to the title of the land, if the testimony of Foster is to be credited, and it stands undisputed on the record, Means had no title whatever in the land sold by defendant to plaintiffs, as Means, according to Foster's testimony, in 1869 or 1870, surrendered to him the title bond executed to him by Modisett and instructed Foster to give the bond to Modisett. This act of Means obliterated whatever equitable right he theretofore may have had in the premises, for it cannot be doubted from the fact of its surrender that such an effect was intended. ( b) And the admissions of Means while in possession of the land, he having since deceased, were competent evidence, even as against strangers. 1 Wharton on Evidence, section 237, and case cited; 2 Id., section 1156. And it is said not to be necessary as a condition of admissibility that the declarant should be dead, though the better view is to restrict...

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