Bowen v. Matlack

• Decision Date: 05 July 1916
• Docket Number: No. 17696.,17696.
• Citation: 188 S.W. 99
• Parties: BOWEN v. MATLACK.
• Court: Missouri Supreme Court

188 S.W. 99

BOWEN v. MATLACK.

No. 17696.

Supreme Court of Missouri, Division No. 2.

July 5, 1916.

Appeal from Circuit Court, Jasper County; David E. Blair, Judge.

Action by A. B. Bowen against Sara B. Matlack. From a judgment for defendant, plaintiff appeals. Judgment affirmed.

In November, 1911, plaintiff filed his petition in the circuit court of Lawrence county, Mo., praying judgment for $4,000, and alleging that in consideration of the transfer of a mining lease by him to defendant she had agreed to deliver to him stock of the par value of $4,000 in a corporation which she had agreed to organize for the operation of the aforesaid lease and mining property, that, although thereto duly requested, defendant had refused to deliver such stock, or to convey the mining lease to the proposed corporation, and that the value of such stock was $4,000.

The answer was a general denial and counterclaim, in which defendant asked judgment for $80,000; she charging that at the time she purchased the lease the plaintiff made certain false and fraudulent representations in relation thereto, and that she, relying thereon, had expended large sums of money in prospecting, developing and operating said property.

The reply was a general denial, coupled with allegations that defendant before purchasing had made full investigation of the lease and property, and that all times since said transaction she had retained possession of the property. The pleadings and proof also disclose that, in addition to the corporate stock which defendant had agreed to deliver to plaintiff she had paid him $5,000 in cash.

A trial by the court resulted in a finding for plaintiff on his petition in the sum of $400, the value of the stock agreed to be delivered, and a finding for the defendant on her counterclaim in the sum of $13,400. Thereupon a judgment for $13,000 was rendered in favor of the defendant. Plaintiff appeals.

The questions calling for our decision are of such nature as to render unnecessary a complete statement of the facts. Such as are deemed material will be referred to in the opinion.

Kelsey & Cameron, of Joplin, and John L. McNatt, of Aurora, for appellant. White, Hackney & Lyons, of Kansas City, for respondent.

REVELLE, J. (after stating the facts as above).

I. Appellant asks us to reverse the judgment, assigning as reasons therefor the following: (1) The trial court erred in not granting a new trial on the ground of newly discovered evidence; (2) the statements made by appellant were not statements of fact, but mere matters of opinion and constitute no actionable fraud; (3) the judgment is so inconsistent that same cannot stand.

Treating of these in the order stated, the first is ruled against appellant, because we have uniformly given our "most cordial approval" to the rule that the application must show, among other things, that the evidence has come to the applicant's knowledge since the trial, and that it was not owing to any lack of diligence on his part that it did not come sooner, that the object of the testimony is not merely to impeach the character or credit of a witness, and that the subsequently discovered evidence is so material that it would probably produce a different result if the new trial were granted. King v. Gilson, 206 Mo. loc. cit. 280, 104 S. W. 52, and cases cited. The motion here expressly alleges, and the affidavit in support thereof discloses, that the effect of the newly discovered evidence would tend merely and only to impeach the credit and character of one of defendant's witnesses. No diligence whatever to discover this evidence before the trial was either alleged or shown. The court without the aid of a jury heard and determined all the issues in the cause, and it had before it, and, no doubt, duly considered, the affidavit of new evidence, and by its action in overruling the motion it affirmatively declared such evidence insufficient to produce a different result. With this finding we shall not interfere.

II. The statements relied upon as the basis of this action, same being both duly alleged in the counterclaim and satisfactorily...