Anslyn v. Frank
| Decision Date | 20 January 1880 |
| Citation | 8 Mo.App. 242 |
| Parties | WILLIAM ANSLYN ET AL., Respondents, v. CHARLES H. FRANK ET AL., Appellants. |
| Court | Missouri Court of Appeals |
1. In actions for damages for deceit, where the plaintiff retains the property, the measure of damages is the difference between the represented and the actual value of the property at the time the representations were made.
2. Where it is alleged that deceit was practised as to two matters, it is error to give an instruction assuming that if there was deceit it must have been as to both matters.
3. Where the plaintiff exchanges an encumbered tract of land for the property as to which the deceit is alleged to have been practised, that the land is not worth the encumbrance is not a defence to an action for damages for the deceit.
4. A farmer living in the vicinity of, and acquainted with the land in controversy is a competent witness as to its value, where it does not appear to have any peculiar value of which an ordinary farmer would not be a good judge.
APPEAL from the St. Louis Circuit Court.
Reversed and remanded.
THEO. H. CULVER, for the appellants: The measure of damages is the difference between the value of the property sold at the time of the sale, if the property had been as represented by the defendants, and its value as it was in point of fact.-- Brownlee v. Hewitt, 1 Mo. App. 360; Langdon v. Green, 49 Mo. 363 (367); Page v. Parker, 43 N. H. 363; s. c. 40 N. H. 47 69; Gibson v. Marquis, 29 Ala. 668 (673); Maison v. Rupple, 66 Barb. 180; Wyeth v. Morris, 20 N. Y. 338; Morse v. Hutchins, 102 Mass. 217, 439.
ALEX. MARTIN, for the appellants.
BRITTON A. HILL, GEORGE M. STEWART, and JOHN O'CONNOR, for the respondents: The measure of damages in action for deceit is the same as in actions for breach of warranty.-- Stiles v. White, 11 Metc. 356. The measure of damages is the difference between the actual value of the thing warranted and the price paid for it.-- Wintz v. Morrison, 17 Texas, 372; McAlpine v. Lee, 12 Conn. 120; Soper v. Breckinridge, 4 Mo. 14; Courtney v. Boswell, 65 Mo. 196; Walls v. Gates, 4 Mo. App. 1; Brownlee v. Hewitt, 1 Mo. App. 360; Burt v. Dewey, 31 Barb. 540; Ware v. Weathnall, 2 McCord, 413; Arthur v. Moss, 1 Or. 193; Anding v. Perkins, 29 Texas, 348. The testimony of Sisco was competent, a proper foundation having been laid for it.-- Shattuck v. Railroad Co., 6 Allen, 115; Fowler v. Commissioners, 6 Allen, 92; Flint v. Flint, 6 Allen, 34; Thomas v. Mallinckrodt, 43 Mo. 65; Whitmanv. Railroad Co., 7 Allen, 313; Robertson v. Knapp, 35 N. Y. 91.
This is an action to recover damages which ensued, as the plaintiffs allege, in consequence of the deceit of the defendants. The substance of the petition is, that the defendants, who were real-estate agents, undertook for the plaintiffs to sell or exchange certain encumbered real estate of the plaintiffs on Taylor Avenue, in St. Louis, and in September, 1877, represented to the plaintiffs that they, the defendants, could exchange such real estate, as encumbered, with one Evans for a good note for $342.62 and eighty acres of land in Oregon County, Missouri, worth at least $15 an acre, Evans to pay the debt on the plaintiffs' land when such debt became due; that, confiding in these representations, the plaintiffs conveyed their land to Evans; that the land in Oregon County proved to be worthless, or nearly so, and the note of no value; that Evans failed to pay the encumbrance on the plaintiffs' land, in consequence of which it was sold, under power of sale in the deed of trust, for less than the amount of such debt. It was charged that the defendants knew that their representations were false, and knew the actual facts, and thus knowing, made the exchange on the part of the plaintiffs. There was a general denial, and a verdict for the plaintiffs for $1,542.
It is contended that there is no evidence to prove that the defendants were acting for the plaintiffs, or that the defendants acted fraudulently, or with knowledge as to the real character of the Oregon County land and the note; but though there certainly is evidence to show that the plaintiffs acted for themselves, and upon their own judgment, in making the exchange, yet there is some evidence to the contrary, and this question has been decided by the jury under the instruction--the only one asked by the defendants on this subject-- that the plaintiffs could not recover if they relied on their own judgment in making the trade, and not on the representations of the defendants. Indeed, all the instructions asked by the defendants were given; and those of the plaintiffs require the jury to find that the plaintiffs relied upon the representations and the judgment of the defendants, and not upon the judgment or knowledge of the plaintiffs. It is said that there is error in using the words “no substantial value” in describing hypothetically the value of the property; but we see no error in this, in view of the evidence. The testimony, if believed, tended to prove that the land in Oregon County was of no value for any practical purpose, and that the note was of no value.
The principal question in the case is that in regard to the measure of damages. The court below instructed that if the jury found “that the land in Oregon County, or the note of Thomas Allen or the security which accompanied it, were of no substantial value when said trade was made, and defendants knew that fact before or at the time said trade was made, and did not make it known to the plaintiffs, then the defendants are liable in this action.
If the jury find for the plaintiffs in this case, they will assess their damages at such sum as they may find from the evidence was the difference between the value of the property sold by the plaintiffs to Julia Evans, less whatever encumbrances remained unpaid thereon at the time of the sale, and the actual value of the property they received in exchange for same, to which amount they may add six per cent interest from date of this suit.”
The first instruction should have read, “or the note of Thomas Allen and the security,” etc., since if the note was good and the security bad, the jury would not on that ground have been justified in finding for the plaintiffs. Both should have been bad; and though the note could not have been bad and the security good, the note might have been good and the security bad. The criticism of the defendants, however, as to the first instruction is not well founded. This instruction says nothing as to the measure of damages. Its conclusion is merely that the defendants are liable, and this was correct; for if either the Oregon County land or the Allen note and security were of no value, upon the contingencies stated in the first instruction, then the plaintiffs were entitled to recover. Suppose, for instance, the defendants had practised deceit in regard to the Oregon County land, but none as to the note, then, though the plaintiffs' loss on the note would not be an element of damages in this case, yet the plaintiffs not the less would be entitled to recover. If, on the other hand, the plaintiffs by the bargain had lost $1,200 on account of the worthlessness of the Oregon County land, yet if this loss had not occurred through any deceit of the defendants, there could be no recovery for that loss; but this would not affect the plaintiffs' right to recover for deceit as to the note.
It is to the second instruction that the criticism applies. This instruction makes no distinction, but lays down one common rule for two very different cases, the finding as to the note and as to the Oregon land,...
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Adams v. Hughes
...time of the sale, and what it would have been, had the article been as it was warranted to be. Walls v. Gates, 3 Mo. App. 242; Anslyn v. Frank, 8 Mo. App. 242; Courtney v. Boswell, 65 Mo. It is fundamental that a party seeking to rescind a contract must do so unequivocally and in a reasonab......
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