Becker v. Thompson, 31854.

• Decision Date: 20 November 1934
• Docket Number: No. 31854.,31854.
• Citation: 76 S.W.2d 357
• Parties: ELIZABETH BECKER, Appellant, v. GEORGE T. THOMPSON, Defendant; WILLIAM BERBERICH, Respondent.
• Court: Missouri Supreme Court

76 S.W.2d 357

ELIZABETH BECKER, Appellant, v. GEORGE T. THOMPSON, Defendant; WILLIAM BERBERICH, Respondent.

No. 31854.

Supreme Court of Missouri.

Court en Banc, November 20, 1934.

Appeal from Circuit Court of City of St. Louis. — Hon. Frank Landwehr, Judge.

REVERSED AND REMANDED (with directions).

Stout & Spencer and George F. Wise for appellant.

(1) The evidence introduced by plaintiff sustained the cause of action pleaded in her petition. (a) Although a conspiracy to defraud was alleged in the petition, the allegations of conspiracy may be treated as surplusage, and the cause was established against defendant Berberich by proof of fraud on his part. 27 C.J. 43; 12 C.J. 584; Gable v. Am. Ry. Express Co., 115 S.E. 903; Humphrey v. Terry, 89 So. 608, 206 Ala. 249; Howard v. McCarson, 110 So. 296, 215 Ala. 251; Holt v. Williams, 240 S.W. 864, 210 Mo. App. 470; Brackett v. Griswold, 112 N.Y. 454, 20 N.E. 376; Shelberg v. Jones, 151 N.W. 1066, 170 Iowa, 19; Foster v. O'Farrell, 225 Pac. 217, 75 Colo. 170; Dickson v. Young, 210 N.W. 452, 202 Iowa, 378; Franklin v. Erickson, 146 Atl. 437, 128 Me. 181; Dickson v. Reno, 187 Pac. 308, 43 Nev. 413; Aronson v. Ricker, 185 Mo. App. 533, 172 S.W. 641; Hunt Simonds, 19 Mo. 583; Darrow v. Briggs, 261 Mo. 276, 169 S.W. 118; Remmers v. Remmers, 217 Mo. 555, 117 S.W. 1117. (b) Even if the case comes within the Statute of Frauds (which is not conceded), the statute was waived by defendant and he cannot now rely upon it, because he did not raise the point in his pleading or at any time during the trial. Smith v. Hainline, 253 S.W. 1049; Ott v. Stone, 29 S.W. (2d) 726; State v. Trimble, 28 S.W. (2d) 75; Large v. Frick Co., 256 S.W. 90, 215 Mo. App. 232; Schmidt v. Rozier, 121 Mo. App. 306, 98 S.W. 791; Downing v. Anders, 202 S.W. 297; Hyde v. Henman, 256 S.W. 1091. (c) Plaintiff's evidence establishes all the elements of a case of fraud, namely, that the representations were made by defendant; that they were false; that defendant knew they were false, and that plaintiff relied upon them and was damaged thereby. Gittings v. Jeffords, 239 S.W. 88, 292 Mo. 678; Remmers v. Remmers, 217 Mo. 557, 117 S.W. 1117; State v. Allen, 276 S.W. 879, 310 Mo. 378; Stoltzfus v. Howey, 54 S.W. (2d) 505; Ash v. Wiley, 46 S.W. (2d) 899. (d) Defendant's intent to defraud need not be directly proved, but is inferred from the fact that he made representations which he knew were false. Dulaney v. Rogers, 64 Mo. 201; 12 R.C.L. 327; Messerli v. Bantrup, 216 S.W. 825; Cowley v. Smyth, 46 N.J.L. 380; Benner v. Hooper, 296 Pac. 660; Case v. Ayers, 65 Ill. 142; Boddy v. Henry, 101 N.W. 447, 126 Iowa, 31. (2) The instructions given at the request of the plaintiff correctly declared the law. (a) Plaintiff's Instruction 1 required the jury to find all the necessary elements of fraud in order to return a verdict for plaintiff. Dulaney v. Rogers, 64 Mo. 201. (b) Plaintiff's Instruction 2 correctly said that the fraudulent intent might be inferred. Dulaney v. Rogers, 64 Mo. 201; 12 R.C.L. 327; Messerli v. Bantrup, 216 S.W. 825; Cowley v. Smyth, 46 N.J.L. 380; Benner v. Hooper, 296 Pac. 660; Case v. Ayers, 65 Ill. 142; Boddy v. Henry, 101 N.W. 447, 126 Iowa, 31.

Grimm, Mueller & Roberts for respondent.

(1) The trial court committed no error in granting respondent a new trial on specification 8 of respondent's supplemental motion for new trial. (a) Appellant's evidence failed to sustain the issues presented by pleadings, i.e., appellant failed to establish her case by preponderance or weight of the evidence. Appellate courts will not disturb the granting of a new trial on the ground that the verdict is against the weight of the evidence. Cullison v. Wells, 297 S.W. 370; Fitzjohn v. Transit Co., 183 Mo. 78; Broyles v. Morris, 245 S.W. 341. (b) Appellant's evidence failed to establish her alleged cause of action as pleaded in petition. The evidence of appellant constitutes a variance and departure from the petition. Appellant cannot abandon cause of action based solely on conspiracy and proceed against respondent alone on fraud. Roger v. First Natl. Bank, 279 S.W. 1053; Darrow v. Briggs, 261 Mo. 244; Marrow v. Marrow, 61 Pa. Sup. Ct. 208; Emmerson v. Hutchinson, 63 Ill. App. 203; Aronson v. Rieke, 185 Mo. App. 534; Holborn v. Naughton, 60 Mo. App. 100; Holt v. Williams, 240 S.W. 864. The representations alleged to have been made by respondent, having to do with assurances concerning the character, conduct, credit, ability or dealings of another person, are not actionable if not in writing. Sec. 2970, R.S. 1929; Knight v. Rawlings, 205 Mo. 412; Cook v. Churchman, 104 Ind. 146; Sedgwick v. Natl. Bank, 243 S.W. 893; Williams v. Ravanna Bank, 289 S.W. 34; Weil v. Schwartz, 21 Mo. App. 372. Compliance with Section 2970, Revised Statutes 1929, requiring the representations in question to be in writing, is a necessary element of appellant's cause of action. Williams v. Ravanna Bank, 289 S.W. 34; Sedgwick v. Natl. Bank, 243 S.W. 893. The statute need not be pleaded to be available, but may be included under general demurrer to evidence, or may be raised on motion for new trial, or on appeal. Weil v. Schwartz, 21 Mo. App. 372; Williams v. Ravanna Bank, 289 S.W. 34; Sedgwick v. Natl. Bank, 243 S.W. 893; Smith v. Hainline, 253 S.W. 1049; Downing v. Anders, 202 S.W. 297. (c) Appellant's evidence failed to establish necessary elements of fraud. Evidence fails to show that appellant relied upon alleged representations of respondent and fails to show that she was induced thereby to enter in her transaction with Thompson. Anderson v. McPike, 86 Mo. 293. Alleged representations were not shown to have been false when made. Evidence does not show that respondent made alleged representations for the purpose of inducing appellant to buy stock from George T. Thompson. 26 C.J. 1115, 1116, 1117; Brueckle v. Pechan, 21 S.W. (2d) 903; Gains v. Massey, 190 Mo. App. 199. (2) The trial court committed no error in granting a new trial on specification 4 of the respondent's supplemental motion for new trial. (a) The instruction given at the instance of appellant was erroneous. (b) The instruction failed to require the jury to find that the representations of defendant induced plaintiff to part with her property in exchange for her stock. Wann v. Scullin, 210 Mo. 429; Birch Tree State Bank v. Dowler, 167 Mo. App. 379. (c) The instruction fails to require the jury to find that defendant Berberich was actuated by fraudulent intent. Woods v. Letton, 111 Mo. App. 51; Stufflebean v. Peaveler, 274 S.W. 929. (d) The instruction submitted immaterial and nonfraudulent representations. Stufflebean v. Peaveler, 274 S.W. 929; Press v. Hair, 133 Ill. App. 528. (e) The instruction submitted issues not presented by pleadings. Morton Electric Co. v. Schramm, 277 S.W. 368; St. John v. Berry, 63 Kan. 775; Williams v. Hall, 230 S.W. 126. (f) The instruction submits an erroneous measure of damages. Morrow v. Franklin, 233 S.W. 224; Thompson v. Lyons, 220 S.W. 942; Adams v. Barber, 157 Mo. App. 395; Gash v. Mansfield, 28 S.W. (2d) 127; Busse v. White, 259 S.W. 458, 302 Mo. 672; Palmer v. Moyers, 298 S.W. 101; Addis v. Swofford, 180 S.W. 548; Zeitinger v. Steinberg, 277 S.W. 956; Brayton v. Gunby, 267 S.W. 450; Brigham v. Judy Co., 186 S.W. 15; Boyd v. Wahl, 175 Mo. App. 181; Kendrick v. Ryus, 225 Mo. 150; Wolfersberger v. Miller, 39 S.W. (2d) 765; Finke v. Boyer, 56 S.W. (2d) 372. (g) The instruction was so long and involved as to be confusing to the jury. Knapp v. Hanley, 153 Mo. App. 174; Williams v. Ransom, 234 Mo. 66; Stid v. Railroad, 236 Mo. 398. (h) Defects or omissions in instructions purporting to cover the entire case cannot be corrected or supplied by other instructions. Sec. 111, Ferris & Rosskopf, Instructions to Juries; Traylor v. White, 185 Mo. App. 325.

WESTHUES, C.

Appellant in her petition charged that respondent and George T. Thompson and Claude C. Finley, on June 3, 1929, through fraud, secured from her certain real estate of the value of $16,500. The cause was tried before a jury and appellant was given a verdict and judgment of $14,500 and interest in the sum of $2,003.48. No service was obtained upon Thompson and the case as to him was dismissed.

The trial court sustained respondent's motion for a new trial and appellant appealed. The new trial was granted upon the fourth and eighth assignments of error in the motion, which read as follows:

"Fourth. The court erred in giving the instructions offered by the plaintiff.

"Eighth. The evidence offered by plaintiff failed to sustain the issues presented by the pleadings and failed to sustain the cause of action attempted to be pleaded in plaintiff's petition."

The eighth assignment presents two questions for our review. These, however, are somewhat commingled. They are: First, did appellant adduce sufficient evidence to sustain the issues presented, one of the issues being fraud; second, even though there was sufficient evidence of fraud did it sustain the cause of action as pleaded? Respondent contends that plaintiff wholly failed to prove any conspiracy as pleaded in the petition, therefore, plaintiff was not entitled to a verdict.

[1] Respondent argues that the eighth assignment also covers the point that the verdict was against the weight of the evidence and, therefore, the action of the trial court in granting a new trial should not be reviewed. This contention is untenable. There is nothing in the assignment, even if liberally construed, that presents that point. Furthermore, that question was specifically raised in the first assignment of the motion as follows:

"First. The verdict of the jury is against the evidence presented at the trial, and is against the weight of the evidence and is against the law and the evidence."

This latter assignment was not mentioned in the court's order granting a new trial. The point is, therefore, ruled against respondent.

The petition charged...