Bradford v. Wright

• Decision Date: 30 November 1909
• Parties: JAMES W. BRADFORD et al., Respondents, v. W. L. WRIGHT, Appellant
• Court: Missouri Court of Appeals

123 S.W. 108

145 Mo.App. 623

JAMES W. BRADFORD et al., Respondents, v. W. L. WRIGHT, Appellant

Court of Appeals of Missouri, St. Louis

November 30, 1909

Appeal from Audrain Circuit Court.--Hon. James D. Barnett, Judge.

REVERSED.

Judgment reversed.

P. H Cullen for appellant.

(1) The proof shows that the payment by plaintiffs was voluntary, and they had knowledge of all the facts, and were not misled by any fraud. State ex rel. v. Stonestreet, 92 Mo.App 220; Teasdale v. Stoller, 133 Mo. 651; Jefferson County v. Hawkins, 23 Florida 231; Baldwin v Foss, 71 Iowa 389; Redmond v. Mayor, 125 N.Y. 632. (2) Neither law nor equity will afford relief where the subject-matter of dispute is equally known to both parties or the means of knowledge easily within the reach of the party complaining. 118 Mo.App. 417; 85 Mo.App. 183; Buford v. Caldwell, 3 Mo. 477; Davis v. Insurance Co., 81 Mo.App. 264; Champion F. & F. Co. v. Hesket, 102 S.W. 1050; Pratt v. Philbrook, 33 Me. 17.

S. D. Stocks, Geo. Robertson and F. R. Jesse for respondent.

(1) Payment made under a mistake of fact effecting the liability of the payor, may be recovered back. Columbus Ins. Co. v. Walsh, 18 Mo. 229; Norton v. Behart, 105 Mo. 615; Davis v. Eyerman, 10 Mo.App. 437; Davis v. Krum, 12 Mo.App. 279; Yates v. Hines, 24 Mo.App. 619; Morley v. Carlson, 27 Mo.App. 5; Jordan v. Harrison, 46 Mo.App. 172; Connell v. Hudson, 53 Mo.App. 418. (2) Fraud because of active representations of persons receiving the money, thereby bringing an element of deceit or fraud, the money may be recovered. 22 Am. and Eng. Ency. of Law (2 Ed.), p. 630; State v. Stonestreet, 92 Mo.App. 214; Foster v. Kirby, 31 Mo. 497; Harris v. Board of Education, 3 Mo.App. 570; Webster v. Dewitt, 36 N.Y. 340, 93 Am. Dec. 517. (3) Where one laboring under a mistake of fact induced by a misleading statement of another, to pay money to the latter, he may recover the money back, though he was guilty of negligence in making the payment. Lyle v. Shaunberger, 17 Mo.App. 66. (4) Right of action comes upon a want of knowledge of the true state of facts; it is not destroyed by the circumstances that the payor had means of better information which he failed to use. Harris v. Board of Education, 3 Mo.App. 570; Lyle v. Shaunberger, 17 Mo.App. 66. (5) An action for money had and received will lie, if where an illegal demand has been paid under an urgent necessity, and where one is confronted with the question of whether they shall pay the money, or suffer the serious consequences to be reasonably apprehended from a refusal so to do, etc. Money paid under such circumstances would be under an urgent necessity--a kind of moral duress. Wells v. Adams, 88 Mo.App. 215; Fout v. Giraldin, 64 Mo.App. 165; Joannin v. Ogilvie, 49 Minn. 564; Pemberton v. William, 87 Ill. 15; White v. Hazleman, 34 Pa. St. 142. (6) Duress may be shown with respect to real property as well as personal, so as to render payment on account of it involuntary and permit it to be recovered back. Wells v. Adams, 88 Mo.App. 215; Fout v. Giraldin, 64 Mo.App. 165. (7) Party accepting payment is bound to disclose material facts peculiarly within his knowledge, or not speak. In case he does not he is bound and answerable in damages on ground that he is guilty of fraudulent concealment. Grigsby v. Stapleton, 94 Mo. 423; Raley v. Williams, 73 Mo. 310.

OPINION

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 fifty dollars to surrender his agency with respect thereto. Plaintiffs allege that they were induced to pay defendant the fifty dollars 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 fifty dollars 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, Kansas, 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, Missouri, 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 no read it for the reason her glasses were not convenient. Upon looking at it, however, she recognized her brother, 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 co-plaintiff 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 in the petition "that plaintiff constituted the defendant their agent and authorized the defendant to sell said land at and for the sum of fifty dollars per acre net to them." After inspecting the contract in defendant's possession and ascertaining that her brother and co-plaintiff had executed the same, Miss Bradford, in the presence of her brother, informed the defendant that they desired to be released therefrom for the reason they were negotiating a trade with another party. Defendant informed them that he had been to considerable expense under the contract in advertising the land and showing it to parties and mentioned the trip to Kansas with her brother, the plaintiff, James Bradford, in an endeavor to trade it for Kansas land. He said in view of this and the further fact that the contract did not expire until the following March 28th, he would not surrender his agency unless the parties paid him fifty dollars. The plaintiffs declined to pay defendant fifty dollars to surrender the contract, left town and drove to their home in the country. The following morning, Miss Bradford returned and called at the defendant's office a second time concerning the matter. On the occasion of this visit, the defendant's agency contract was exhibited to her a second time. Although the contract was principally printed matter of the usual form and the lady could read and write, she testified that she failed to read it upon this second examination as she did upon the previous occasion. She said. "I threw it it down and went out of the office. I says, 'I won't pay you a cent.'" It appears that plaintiffs considered the...