Bradford v. Wright

• Decision Date: 30 November 1909
• Parties: BRADFORD et al. v. WRIGHT.
• Court: Missouri Court of Appeals

123 S.W. 108

BRADFORD et al. v. WRIGHT.

St. Louis Court of Appeals. Missouri.

November 30, 1909.

1. FRAUD (§ 58)—FRAUDULENT REPRESENTATIONS—EVIDENCE.

In an action to recover money paid for the surrender of a contract of agency to sell land, alleged to have been misrepresented by the agent to give an exclusive agency, evidence held to show that one of the plaintiffs knew that the contract of agency was not exclusive, and was not deceived by such a representation if made.

2. FRAUD (§ 22)—FRAUDULENT REPRESENTATIONS.

Neither law nor equity will offer relief for false representations where the subject-matter of dispute is equally known to both parties, and if a person trusts to representations which are not calculated to impose upon a person of ordinary prudence, or neglects the means of information within easy reach, he must suffer the consequences, so that where a person was induced to pay for the surrender of a contract of agency for sale of land executed for her and her brother by the latter, on the false representation that it gave the agent the exclusive agency, she could not recover where the agent on two occasions gave her the written contract which was not exclusive, and, though she could read, she did not examine it.

Appeal from Circuit Court, Audrain County; James D. Barnett, Judge.

Action by James W. Bradford and others against W. L. Wright. Judgment for plaintiffs, and defendant appeals. Reversed.

P. H. Cullen, for appellant. George Robertson and F. R. Jesse, for respondents.

NORTONI, J.

This is an action for the recovery of money alleged to have been procured from plaintiffs through a fraudulent representation. The plaintiffs recovered, and defendant appeals.

The defendant is a real estate agent, and as such held an agency contract with one of the plaintiffs for the sale of a farm owned by them jointly. Prior to the expiration of the contract, the plaintiffs, desiring to sell their farm to another party, paid defendant $50 to surrender his agency with respect thereto. Plaintiffs allege that they were induced to pay defendant the $50 mentioned by a false and fraudulent representation on his part to the effect that he held an exclusive agency contract for the sale of the land and that he could thus prevent the sale to another. This issue was submitted to the jury, and on it the finding was for the plaintiffs. We believe the court erred in submitting the issue of fraudulent representation to the jury, and that it should have directed a verdict for the defendant for the reason that one of the plaintiffs testified positively he knew the defendant did not hold an exclusive contract of agency on the farm, and for the reason that the other plaintiff had the defendant's agency contract in her hands on two separate occasions for examination before parting with the money alleged to have been induced by the representation mentioned. It appears the two plaintiffs are brother and sister, one a matured man and the other a matured woman. We infer from the testimony that one is a bachelor and the other a maiden lady. They owned and resided upon a farm in Ralls county. On the 28th day of March, the plaintiff James Bradford executed a written contract of agency, whereby he appointed the defendant as agent to sell the farm referred to at $50 per acre, defendant to have as commissions any amount he might receive over and above that price. The contract in no respect stipulated for an exclusive agency, but, on the contrary, was an ordinary agency contract authorizing the defendant to negotiate a sale of the land at any time within the year referred to. The defendant real estate agent advertised the farm for sale in several newspapers, and conveyed and directed one or two prospective purchasers to view it. It appears, too, that by an arrangement with another agent in Kansas he induced the plaintiff James Bradford to accompany himself and the other agent to both Wichita and Winfield, Kan., on a trade for other lands. The defendant and the plaintiff James Bradford and the Kansas agent all went to Kansas on the same train. They inspected several pieces of property in that state, and finally James Bradford entered into a written contract to exchange the farm in Ralls county, Mo., for Kansas land, provided his sister and coplaintiff herein approved the same. Upon his return to Missouri, Miss Bradford dissented, and the trade was never made.

The matter ran along until in the month of December, when plaintiffs commenced to negotiate a sale of their land with another party, and the plaintiff Miss Bradford called upon the defendant, saying that she understood he claimed to have an exclusive agency contract for the sale of the farm. She informed him that she had never signed any contract whatever conferring an agency upon him, and that, if he had any such contract, he had forged her name thereto. Thereupon the defendant exhibited the contract to Miss Bradford. She took the same in her hand and looked at it. She testified that she did not read it for the reason her glasses were not convenient. Upon looking at it, however, she recognized her brother's (James Bradford's) signature, and upbraided him in the presence of the defendant real estate agent for having given the defendant a contract of agency on the land and denying the fact to her. In fact, if we understand the testimony, she told her brother and coplaintiff that he had "lied" to her about having given the defendant a contract of agency upon the land, for there was his signature before her. He admitted having signed the contract and also of having full knowledge of its contents; that is, he testified the defendant read the contract over to him at the time he signed it, and that he knew it did not stipulate an exclusive agency for the defendant. It seems, too, that the plaintiff Miss Bradford ratified the contract at this time, for thereafter she conceded the defendant's agency thereunder, and, indeed, this suit proceeds upon the theory that the contract of agency referred to was and is the contract of both parties, for it is alleged...