Boyce v. Gingrich

• Decision Date: 30 January 1911
• Citation: 134 S.W. 79,154 Mo.App. 198
• Parties: MAUDE B. BOYCE et al., Defendants in Error, v. JOHN L. GINGRICH et al., Plaintiffs in Error
• Court: Kansas Court of Appeals

134 S.W. 79

154 Mo.App. 198

MAUDE B. BOYCE et al., Defendants in Error, v. JOHN L. GINGRICH et al., Plaintiffs in Error

Court of Appeals of Missouri, Kansas City

January 30, 1911

Appeal from Boone Circuit Court.--Hon. N. D. Thurmond, Judge.

Affirmed.

J. W Tincher, J. R. Baker, F. G. Harris, Ralph T. Finley and N. T Gentry for plaintiffs in error.

E. W Hinton and Harris & Hay for defendants in error.

OPINION

BROADDUS, P. J.

This is an action to recover damages for fraudulent representations in the exchange of real estate.

The facts are: That in the month of July, 1909, plaintiff, Maude B. Boyce, was the owner of certain real property in the city of Columbia, Missouri. Her husband, acting as her agent, authorized the defendant, Daugherty, to sell or exchange it at the listed price of $ 7500. Daugherty was a man engaged in the real estate business, in whom the plaintiffs had full confidence. He was also the agent of his co-defendant Gingrich for the purpose of assisting him in the sale of a tract of land which he owned, consisting of 160 acres situated in Woodson county, Kansas, and which was listed at the price of $ 9600. Daugherty communicated to Gingrich that he had plaintiff's property, consisting of a house and lot, for sale or exchange. Daugherty showed Gingrich plaintiff's property and gave him the price, and the latter expressed himself as willing to trade his property for that of plaintiffs. The plaintiffs who lived in the country some distance from Columbia were notified by Daugherty, that he had a prospective buyer for their property. Boyce, the husband, came to Columbia and found Gingrich and Daugherty in the latter's office. Daugherty represented to Boyce that he had an advantageous trade for him in Kansas, and referred to the 160 acre tract owned by Gingrich, which he wished to exchange for the house and lot. Boyce being unacquainted with the Kansas land, and his wife's health being such that he could not leave home to go and see the land, stated that if any trade was made he would have to rely on the word of the defendants. Both defendants assured Boyce that they would correctly describe the land to him; Daugherty saying, "I will tell you the truth about it," and Gingrich that they would "treat him like a brother."

The description and representation of Daugherty as testified to by Boyce was that: "He, Daugherty, said it was in good shape, five miles from Yates Center, good fences, good barn and good orchard. He said the house was in good condition and that the adjoining lands sold for from $ 60 to $ 70 per acre; and that this land was worth $ 60 an acre. Mr. Gingrich said just the same as Mr. Daugherty did; their descriptions were the same as to the improvement of the property, the value and prices that neighboring lands were selling for," and that he was induced to make an exchange of properties upon the faith of said representations of defendants.

At the time there was an encumbrance of $ 4600 upon the Boyce property and $ 3500 upon Gingrich's land. It was considered by the parties that Boyce had an equity of $ 2900 in the property in Columbia, and that Gingrich had an equity of $ 6100 in his Kansas property. For this difference between the equities, Boyce agreed to let Gingrich have all the crops then on the Kansas land at the value of $ 300, and that the Boyces would execute notes secured in the Kansas land for $ 2900; all of which was embraced in a contract written and signed by the parties.

Boyce went home taking with him a copy of the contract and blank deed; not returning as was expected, Daugherty telephoned and asked Mrs. Boyce why Boyce did not come in and close the deal. Mrs. Boyce testified that: "I answered the 'phone and told him I thought he was out of the notion; that he did not want to trade without seeing the property, and he, Daugherty, went on and told that the property was in good shape, and that he had been over it and was just from there," etc. He made representations similar to those made to Mr. Boyce. She stated that she would not have made a deed to her place had it not been for these representations of Daugherty. Afterwards, the deeds were executed by the respective parties and the deal closed.

Boyce went upon the land, and his evidence is, that it did not come up to the representations made by the defendants. It was seven miles from Yates Center; that the house had only three finished rooms, and a place for two others; that the fences were of no value; that the orchard was not as good as represented; and that the value of the farm did not exceed $ 35 per acre, and the neighboring lands were selling for from $ 25 to $ 40 an acre. Other witnesses testified similarly. Defendants objected to the competency of Boyce as a witness to the value of the Kansas land, which the court overruled. The question asked was this: "After you had made inquiry and learned the price of neighboring land and what it had been selling for and seen the condition of the property as to improvements, etc., and location from Yates Center, what did you consider the place reasonably worth?"

The defendants in their testimony denied having made any false representations, but that the Kansas land was as they had represented it to the Boyces, and also introduced other evidence tending to show that plaintiffs had not been damaged by reason of the exchange. They offered evidence for the purpose of showing that the house and lot in Columbia was...