Birch Tree State Bank v. Dowler

• Decision Date: 07 December 1912
• Parties: BIRCH TREE STATE BANK v. DOWLER.
• Court: Missouri Court of Appeals

151 S.W. 784

167 Mo. App. 373

BIRCH TREE STATE BANK v. DOWLER.

Springfield Court of Appeals. Missouri.

December 7, 1912.

1. TRIAL (§ 253) — INSTRUCTIONS — IGNORING ISSUES.

Where, in an action on a note given by defendant for kitchen cabinets for resale in a designated county, defendant pleaded failure of consideration and fraud, and testified that before giving the note the payee informed him that he had never sold kitchen cabinets in the county, while in fact he had canvassed part of the county with a similar, but cheaper, cabinet, and had sold about 65, an instruction that, if the payee falsely and fraudulently represented to defendant that the county had not been canvassed, and defendant, relying on the representation, gave his note, and the county had been worked by the payee and others, the representation was false, defeating a recovery, was erroneous, because declaring as a matter of law that the representation was actionable, leaving out of consideration the question of its materiality or injury.

2. CANCELLATION OF INSTRUMENTS (§ 4) — GROUNDS — FRAUD.

One seeking to annul an instrument, on the ground that it was obtained by fraud, must show that the representations were as to a material fact, and that they contributed to the injury.

3. FRAUD (§ 18) — ACTIONS FOR DAMAGES — EVIDENCE.

One suing for damages from fraudulent representations, inducing the execution of an instrument, must show that the representations were as to a material fact, and that they contributed to the injury.

4. FRAUD (§ 20) — ACTIONS FOR DAMAGES — EVIDENCE.

A representation, to be actionable as a fraudulent representation, must be one on which the complaining party relied, and by which he was actually misled, to his injury; but the party complaining need not testify directly that he was influenced by and relied on the representation, but such fact may be established by other circumstances.

Appeal from Circuit Court, Shannon County; W. N. Evans, Judge.

Action by the Birch Tree State Bank against T. H. Dowler. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

See, also, 163 Mo. App. 65, 145 S. W. 843.

Lew R. Thomason, of Poplar Bluff, and L. B. Shuck, of Eminence, for appellant. Green & Wayland, of West Plains, and Orchard & Cunningham, of Eminence, for respondent.

GRAY, J.

This was an action by the plaintiff, Birch Tree State Bank, a corporation, against the defendant, upon his negotiable promissory note, which was drawn in the usual form for the payment of the sum of $225. The note was originally executed by defendant T. H. Dowler, to W. H. Hurt for 112½ kitchen cabinets. The note was subsequently assigned for value to the Birch Tree State Bank, and, not being honored when it became due, the present suit was brought by the assignee.

The note was executed under the following circumstances: W. H. Hurt was the agent for the Mound City kitchen cabinets, and sold to the defendant, as we have stated, 112½ of these cabinets, for which the defendant was to pay him $12 each, upon the following terms: Four dollars was to be paid by note for each of the cabinets, and the balance of the purchase price, $8, for each of the cabinets f. o. b. St. Louis, was to be paid when they were ordered, and the defendant was to have the option of ordering as many of the cabinets as he chose upon payment of this additional $8, but by the contract of the parties the sale was restricted to Howell county, and all sales were to be made within one year from the date of the contract. Under the agreement the defendant executed to W. H. Hurt these two promissory notes, each for $225. Subsequently the defendant ordered under his contract 4 of these kitchen cabinets, which he sold. He thereafter sent an order for more cabinets, but for some reason the order was not delivered, but returned.

Owing to the condition of the record in this case, we do not feel justified in passing on all the issues that are really presented by the evidence. While both parties have filed what they style "abstract of the record," the pleadings are not set out in either. In the appellant's abstract, it is said: "Petition of the plaintiff in the usual form; action on the following promissory note." As to what is contained in the answer, only the following appears in the abstract: "The answer admits the execution of the note, and pleads, in defense of plaintiff's action, failure of consideration, and fraud in the procurement of the note by the payee, and a knowledge of said fraud by the plaintiff." But there is enough in the record, however, properly preserved by appellant, to convince us that appellant's complaint against respondent's instruction No. 1 is meritorious.

The defendant testified that, prior to the time he gave the note sued on, he inquired of the payee if he had ever sold kitchen cabinets in Howell county, and that the payee said he had not, and that he had never been west of the Mississippi river. The evidence shows that in 1901 the payee had canvassed a part of Howell county with a similar, but cheaper, cabinet, and had sold about 65 in the county. The defendant gave the following testimony: "Q. Did you try to sell these kitchen cabinets in Howell county? A. Yes; but I found they had sold something up there about the same. Q. And you tried to sell these kitchen cabinets there? A. Yes, sir. Q. Why couldn't you sell them? A. They said that was more than they were worth."

Defendant's instruction No. 1 reads: "The...