Anderson v. Wheeler

• Decision Date: 20 May 1907
• Parties: ANDERSON v. WHEELER
• Court: Missouri Court of Appeals

102 S.W. 628

125 Mo. A. 406

ANDERSON v. WHEELER

Kansas City Court of Appeals. Missouri.

May 20, 1907.

1. BROKERS—FRAUD—ACTIONS—EVIDENCE.

In an action by a principal against an agent for fraud and deceit in negotiating an exchange of property, evidence examined, and held to show fraud on the part of the agent.

2. APPEAL—REVIEW—HARMLESS ERROR — ADMISSION OF EVIDENCE.

Although witnesses were improperly allowed to testify as to the value of property, without first having qualified as to their knowledge of value, the error was harmless, where there was other competent evidence, and no evidence of a contradictory character.

Appeal from Circuit Court, Linn County; John P. Butler, Judge.

Action by Anna D. Anderson against William N. Wheeler. From a judgment for plaintiff, defendant appeals. Affirmed.

West & Bresnehen, for appellant. Thomas P. Burnes, for respondent.

BROADDUS, P. J.

This is an action for fraud and deceit. At the close of plaintiff's testimony, the defendant asked the court to declare as a matter of law that under the proof she was not entitled to recover. The court refused defendant's request and submitted the case to the jury under certain instructions given at her instance. The jury returned a verdict for the plaintiff in the sum of $950, upon which judgment was rendered, and defendant appealed.

The evidence showed that plaintiff was a woman 72 years old, and that her husband was also old, and deaf. Both parties to this suit lived at Marceline, Mo., at which place plaintiff owned three lots of ground with a house thereon of the value of $1,250, free of all incumbrances except a small amount for taxes. Plaintiff had known defendant for many years. Defendant was engaged in real estate and loan business, and plaintiff had borrowed money from him. About the 1st of January, 1906, plaintiff was at defendant's office to pay him some money she owed him, at which time she noticed in his window advertisements of farm lands for sale, whereupon she asked him if he had a small piece of land that he could trade for her house and lots. Defendant told her he could suit her, and drew up a deed, which she executed, whereby she conveyed to him her said property. Shortly thereafter he told her that he had 40 acres of land situated somewhere in South Missouri, which belonged to a man by the name of Martin. Later he told her that he had investigated the Martin land and advised her not to trade for it, and that when he found anything to suit her he would come to her house. In February, after having had several conferences with plaintiff, he conveyed to a man by the name of Scovern a house and lot he owned in St. Catherine, the consideration for which was 76 acres of land in Dade county. Scovern, the owner, executed a deed for the latter, but the name of the grantee therein was left blank. After receiving the deed, he went to the plaintiff's home and told her that a railroad man at Carrollton had 76 acres of land, five miles from Greenfield, and about 35 miles from Joplin, which he thought would suit her, or, in his own language, "I hit you now," and Scovern, the Carrollton man, would trade his land for that of plaintiff. In a short time thereafter defendant informed plaintiff that he had seen Scovern a few days previously, and that he would meet him on the following Monday at Carrollton and close the trade. About March 1st defendant delivered to plaintiff the deed from Scovern to the Dade county land with her name inserted as grantee, and paid her by draft the sum of $100, which he represented was all Scovern was willing to pay as the difference between the two pieces of property. A short time thereafter plaintiff vacated her home. It turned out that the Dade county land was of little value.

The evidence shows that defendant was acting as agent for plaintiff, and that she was trusting him to act for her in the transaction. She testified as follows: "I says, `Mr. Wheeler, now you know I depend on you as a friend and adviser,' and I says, `You know the situation we are in. We are poor, and we both are old and not able to do a hard day's work. Now,' I says, `You will do me right?' He says, `Yes, I will never forget what my father said to me on his dying bed, whatever I done to always do right.'" Defendant, in representing to plaintiff the value of the Dade county land, said to her that he had never seen it, but that Scovern said it was worth $1,700. It was shown that he had never at any time in his life seen or had any conversation with Scovern. The evidence shows that defendant's conduct was of the most fraudulent character. He knew all the time that plaintiff was trusting him implicity to secure a trade for her home in...