Brown v. South Joplin Lead & Zinc Min. Co.

• Citation: 194 Mo. 681,92 S.W. 699
• Court: United States State Supreme Court of Missouri
• Decision Date: 06 March 1906
• Parties: BROWN et al. v. SOUTH JOPLIN LEAD & ZINC MIN. CO.

92 S.W. 699

194 Mo. 681

BROWN et al. v. SOUTH JOPLIN LEAD & ZINC MIN. CO.

Supreme Court of Missouri, Division No. 2.

March 6, 1906.

FRAUD—MATTERS OF OPINION—LIABILITY.

Where a person says that a body of ore through which a drill hole has been made is pay ore, it cannot be otherwise treated than a mere expression of opinion that it will pay, and an action for fraud and deceit cannot be predicated thereon, even though the opinion was unwarranted as shown by development of the mine; it being true that a drill hole had been made, and that the drill showed that it passed through ore.

Appeal from Circuit Court, Jasper County; Joseph D. Perkins, Judge.

Action by C. J. Brown and another against the South Joplin Lead & Zinc Mining Company. From an order sustaining a motion to set aside the verdict of the jury, and granting a new trial, plaintiffs appeal. Affirmed.

This cause is here upon appeal by the plaintiff from an order of the Jasper county circuit court sustaining in behalf of respondents a motion to set aside the verdict of the jury and granting a new trial.

This was an action brought by the plaintiffs against the defendant for damages for fraud and deceit. The suit was brought on January 2, 1902. The plaintiffs alleged in their petition that on or about the ____ day of February, 1900, Henry B. Pain, a director and agent of the defendant in charge of its land in Jasper county, Mo., and the defendant by its agent, the said Henry B. Pain, for the purpose of inducing plaintiff, C. J. Brown and his associate, L. H. Pounds, to enter into the mining lease described in plaintiff's petition, falsely and fraudulently represented to them that it had drilled a hole in a shaft sunk on lot 9 to the depth of 186 feet, and that there was a body of pay ore found therein 50 feet in depth, and that said pay ore was struck at a depth of 136 feet from the surface and continued rich in ore to the depth of 186 feet, and that the said defendant falsely represented to the plaintiffs that there was no old drifts within less than 50 or 60 feet on the east of said shaft, and none whatever on the north thereof, and that the ground thereunder was solid and had never been mined. The allegation is made that the plaintiffs relied upon the representations as true, and believed them to be true, and that they were thereby induced to and did sign the mining lease by which they obligated themselves to pump water, put in machinery, and sink the shaft on lot No. 9 to a depth sufficient to open up the lower run of ore, as shown by the drill; that is, to a depth of from 136 to 186 feet, and to plank the shaft and timber it, as provided in said lease, and to do many other things as provided in said lease. That afterwards the plaintiffs, relying upon said representation as true, and believing them to be true, and being deceived thereby, entered into said mining lots, and expended and invested their money therein in the development of said lots and in sinking a shaft on lot No. 9, and placing machinery thereon, and pumping water therefrom, and running a drift from said shaft. That the said representations so made by defendant were false, and known to be false, by the said defendant's agent when he made them, or that they were made as of his own knowledge, and that plaintiffs relied upon said representations as being true and thereby induced to sign said lease; and that they sunk said shaft No. 9, and spent a large sum of money before they discovered the drift under said shaft, and that said ground was not as represented. The answer consisted of a general denial. The record discloses an immense volume of evidence introduced upon the trial of this cause. While in the brief of appellant we find the general statement that the evidence established the false representations made as charged in the petition, yet there is a failure to point out specifically the evidence of plaintiff or other witnesses in support of such allegations; hence we are left to an examination of the abstract of record to ascertain, what in fact, were the representations made to induce the plaintiff to enter into the contract of lease for this mining property. The only question presented upon this appeal is the correctness or incorrectness of the action of the trial court in sustaining the motion for new trial. We shall not undertake to review the entire testimony in this cause; hence it is sufficient in order to dispose of the legal propositions involved to briefly indicate in this statement the testimony relating to the representations made.

J. M. Strickler, a witness for plaintiff, testified partly as follows: "Brown, myself, and Pain went to the South Joplin Lead & Zinc Mining Company's ground in the southwest part of the city for the purpose of looking the ground over. Mr. Brown considered the question of taking a lease on the ground, and I went there, and walked over all the ground, and we questioned Pain as to the conditions. I asked particularly about where the old drifts were, as the water was up so we coundn't get into the ground, and told him I didn't think Mr. Brown desired to take the lease without understanding what the ground was, and whether there was solid ground where they had started the new shaft on lot 9. Mr. Pain walked all over the ground with Mr. Brown, myself, and Mr. Miller. That was the first time I met Mr. Pain. We started on the west side of the ground, where they had started to put in a double barrel pump, and he explained that shaft to us. We went over west where they were sinking a shaft that was then down about 50 feet, and I asked the question whether that shaft was in solid ground, and he said it was. He stepped to the east of it, and told us there were no old drifts on lot 9 near that shaft—within perhaps 60 feet. He stepped across to the corner of the mill, stating that the old drifts were over there, and that there were no drifts north of the shaft. He also stated that they had drilled this spot before they commenced the shaft, and that there was pay ore from 136 to 186 feet, and part of it very rich. Those were the statements made. Q. Point out the point, as near as you can, whether Colonel Pain told you that it was solid ground from that place onto the shaft? A. The mill was on lot 10. He pointed out and designated the corner of the mill outside which was about 60 feet from this shaft. There was another shaft in here on lot 10. That drift run from this shaft, and then continued to another shaft. Q. Did Pain tell you that he had been in the ground and knew the location of the drifts? A. I don't know that he spoke about being in the ground. Q. Did you ask him whether he had been in the ground? A. I don't think so. Q. Had you ever heard of drilling to demonstrate the quality of the ground before you came to Joplin? A. Yes, sir. Q. Ever have any drilling done? A. Yes, sir. Q. You knew that a record of the drilling was kept? A. I knew sometimes it was kept. Q. You knew the object of the drilling? A. Yes, sir. Q. You get something out of the ground in any kind of drilling? A. Yes, sir. This is sand-pumped out. Q. As a matter of fact, you knew in ordinary drilling some record was kept for the purpose of showing what the drill had gone through? A. Sure. Q. You didn't ask him for a copy of the record? A. Brown asked him for a copy of the record, and he said he would get it. Q. You were told this company had been mining there for a period of 10 or 12 years on this ground? A. Yes, sir. Q. You could see from the dump pile that there had been an enormous quantity of dirt taken out of that ground there? A. Yes, sir. Q. You knew it was going to be an expensive proposition to pump the water? A. Yes, sir. Q. You then went East, and got your friend Pounds to go into this matter? A. Yes, sir. Q. Told him that you had looked into it fully, and that it was a good thing? A. Yes, sir. Q. You told him you investigated the truth of the statement? A. I told him I investigated from this statement, and examined the ground, and knew a good deal had been taken out, and it was undoubtedly good ground. Q. You told Pounds that you knew this ground? A. I knew of the ground. It had the reputation of being very good ground —had produced a good deal of ore. Q. Where did you hear the reputation of the ground? A. Around Joplin. Q. Hear any one else speak of it besides Pain? A. I spoke to Guyer, the ore buyer. He told me he bought more ore there than any other place around here. Q. Did you inquire about the ground around Joplin? A. I asked several men, and they said if we could get solid ground it undoubtedly would produce a great deal of ore. We would have a good thing if we could get solid ground. I spoke to Morgan and to Guyer, the ore buyer, and several others. Q. Cox told you he had been working that ground a number of years? A. He spoke of the ground —that he had been there for some time. Q. And told you he had been our foreman and superintendent? A. I think so. Q. And told you that he had been mining the ground as a lessee for a year or two? A. I think he did. Q. Did you ask him any questions then about the condition of the ground, etc.? A. Yes, sir. Q. Did you ask Charley Cox anything about the ground and its condition? A. Yes, sir; I spoke about the ground and asked about the ground. He said it was very good ground, and that they had cut drifts from the old shaft, pointing out the shaft marked down here over to the other shaft. Q. Did he tell you they run straight across or in a circle? A. They all said it run around in a circle, as it is marked there. Q. Did he tell you to what depth that had been cut? A. Yes, sir; that is, he said it raised from one shaft to the other. It was perhaps—my recollection is—in the neighborhood of 140 or 150 feet. Q. When you found out Cox had managed that ground for us there for three or four years as general superintendent, and that after that he had mined it himself for a couple of years on his own account, you got all the...