Ball v. Grismore
| Decision Date | 03 April 1922 |
| Docket Number | No. 13821.,13821. |
| Citation | 239 S.W. 524,210 Mo. App. 16 |
| Parties | BALL v. GRISMORE. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.
Action by Harry I. Ball against J. W. Grismore. Judgment for defendant, and plaintiff appeals. Affirmed.
John A. Showen and Samuel Feller, both of Kansas City, for appellant.
Henry D. Ashley and William S. Gilbert, both of Kansas City, and Daniel M. Bailey, of Ottawa, Ohio, for respondent.
This is a suit in attachment, plaintiff being a resident of Fairfield, Iowa, and defendant a resident of Putnam county, Ohio, both farmers and stockmen. The garnishee is the Lee Live Stock Commission Company of Kansas City, Mo.
Plaintiff sued to recover the sum of $5,895, the amount of a check drawn to plaintiff's order by defendant. A general denial and counterclaim were filed wherein defendant asked damages in the sum of $7,000, bottomed upon fraud and deceit. Verdict was for plaintiff in the sum of $6,211.19 and for defendant in the sum of $7,000, and judgment was entered for defendant in the sum of $788.81 and costs. Plaintiff appeals.
The petition alleges that at defendant's special instance and request, on February 24, 1919, plaintiff paid, on behalf of defendant, to one George Stever, the sum of $5,895; the same being part payment of the purchase price of and for 90 head of cattle purchased by defendant from said Stever. The petition further alleges that on said date defendant issued to plaintiff his personal check for said sum of $5,895, drawn on the People's Bank Company of Columbus Grove, Ohio, payment on which was stopped by defendant. Plaintiff prays judgment for the total amount of the dishonored check and protest fee of $1.75.
The cause went to trial on defendant's second amended answer, and, after the opening statements of counsel, plaintiff moved for a judgment on the pleadings and opening statement of defendant, which motion was overruled by the court with permission for defendant to file an amended answer, which was done. This third amended answer, filed during the progress of the trial, pleads a counterclaim of $7,000 based upon fraud and deceit and that the said check was given under the belief that it was for part of the purchase price of about 90 head of cattle, or as many as would fill two cars, at 10 cents per pound, and alleges that defendant fraudulently was induced to pay $110 per head therefor, irrespective of the weight, and that his signature to the contract of purchase of said' cattle was obtained by misrepresentation, fraud, and deceit on the part of plaintiff and one George Stever, and asks that the garnishee be required to pay to defendant the proceeds of the sale of the cattle amounting to $4,041.66, and prays for judgment on his counterclaim.
Plaintiff thereupon filed a motion to strike out defendant's third amended answer "for the reason that the same is not an amendment, but a substitution of a new and different defense and cause of action from that in the former answer pleaded, and is a departure." This motion was overruled and plaintiff duly excepted. Thereupon plaintiff filed reply to defendant's third amended answer in the form of a general denial. In this state of the pleadings the case went to trial. Plaintiff objected to the introduction of any evidence on the counterclaim for the reason that "same does not state facts sufficient to constitute a cause of action against plaintiff," which objection was by the court overruled.
Plaintiff's testimony tends to refute defendant's assertion that Stever guaranteed the cattle would weigh 1,000 to 1,100 pounds and that Stever agreed to sell the cattle at 10 cents per pound. His testimony further is to the effect that the cattle were billed by plaintiff to Kansas City, Mo., at the request of defendant, and that plaintiff advised defendant against this course; that plaintiff had given his check to Stever and had accepted defendant's check for the amount of $5,895, at defendant's request.
The testimony of defendant tends to show that on or about February 23, 1919, defendant arrived at Chicago, Ill., intending to purchase cattle for feeding purposes; that he went into a restaurant near the stockyards and, while there, entered into a conversation with a stranger seated upon a stool near him. He communicated to the stranger, who said his name was Farrow, his purpose to buy cattle. Farrow suggested that cattle could be bought in Iowa at $3 per hundredweight cheaper than at the Chicago stockyards, and advised defendant to go to Ottumwa, Iowa, and see a Mr. John Carrow. Accordingly, Grismore left for Ottumwa that night, arriving before day the next morning. He called Mr. Carrow over the telephone, and the latter came to the hotel. Carrow stated he had no cattle such as Grismore desired, but that he knew where such cattle could be found, and defendant then agreed to go with him to see the cattle. While they were waiting for a train, defendant went with Carrow to a cigar store, smoked a cigar which Carrow bought, became ill, and thereafter "was miserable" all day.
They took a train east out of Ottumwa to a destination unknown to defendant, and, when the name "Fairfield" was called by the conductor, defendant states he recalled that town had acquired a reputation of being a dangerous place in which to purchase cattle, on account of the operations there of a gang of cattle sharpers, and that this fact had been advertised in certain eastern papers. On arriving at Fairfield, Carrow telephoned to plaintiff Ball. Later Bali appeared and was introduced to defendant by Carrow. Ball stated he had no cattle such as would answer defendant's purpose, but that his cousin, George Stever, did have such cattle.
Ear..y in the afternoon of the same day, Ball procured a conveyance and, with defendant and Carrow, drove to the farm of Stever, who showed them some cattle weighing about 400 pounds each which defendant said he could not use, as he wanted cattle weighing 1,100 pounds. Stever then said he had some cattle of that description on a farm about six miles away. The three men then drove to that farm, accompanied by several men on horseback, and, when the cattle were rounded up, defendant remarked that in his judgment the cattle would not weigh over 600 pounds and that they were not the kind of cattle he could use. Stever answered that they would weigh 1,100 pounds and in this assertion he was corroborated by Ball. The men left the pasture and started towards Fairfield, when Stever rode up on horseback, stopped the buggy in which Grismore, Ball, and Carrow were riding, and asked Grismore if he could use the cattle if he priced them to him. Grismore said the cattle would not weigh 1,000 or 1,100 pounds and he did not think he could use them. Stever then said: "You came to buy cattle, and we are going to make you buy these cattle." Ball also said at that time, "We are going to make you buy these cattle." This shocked and frightened defendant. Stever said he would guarantee the cattle would weigh 1,000 to 1,100 pounds, and Grismore then said it would be all right if Stever would guarantee them to weigh that. Stever said he would take $125 a head for them, and Grismore protested he never bought cattle by the head; after considerable haggling, defendant says Stever agreed to sell the cattle to him at 10 cents a pound. While seated with Grismore and Carrow in the buggy, Ball drew up a contract which he read aloud, purporting to be to the effect that Stever sold and Grismore bought at 10 cents a pound as many of the bunch of 90 head of cattle as would go in two cars. This contract, set out in the record, is as follows:
Defendant protested that he never made a written contract for cattle he bought and did not want to make one at this time. Then Stever said it was the rule with them not to drive cattle into town without a written contract. The contract then was signed, and defendant paid down $5 cash, though he did not read the contract because be did not have on his glasses. His glasses were in his pocket, but he felt so miserable, had a headache, Ball and Carrow were sitting so close to him, that he said to Ball, "Go on and read it." He could have pulled his glasses out of his pocket, but did not. As Ball read the contract to him, he was to pay 10 cents a pound for the cattle.
The cattle were driven to Fairfield, and, after reaching there, late in the afternoon, defendant was told there were no scales in town upon which the cattle might be weighed. Stever accepted a draft for $4,000 in part payment and refused to accept defendant's personal check for the balance, amounting to $5,895, but said he would accept Ball's check, which he did, and Ball took Grismore's check for the amount.
Defendant states the cattle were hurriedly loaded into the cars by the aid of pitchforks and other instruments of torture, and that he was put into the caboose. He states he did not know the cattle were on their way to Kansas City until he had been on the train some time and was so told by the conductor ; that he thought he was on his way to his home in Ohio.
The train arrived in Kansas City on February 26, and the cattle were sold on the market, netting $4,041.66. Grismore at once wired the bank in Ohio, on which the check was drawn, to stop payment thereon. The cattle were billed by Ball, as consignor, to the Lee Live Stock Commission Company, to be sold account of J. W. Grismore. Defendant asked the commission company to pay him the proceeds of the sale, but they refused unless they were directed so to do by consignor, Ball. The company thereupon communicated by telephone and telegraph with Ball who, in the meantime, had been advised that...
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