Brownlee v. Hewitt

• Decision Date: 07 March 1876
• Citation: 1 Mo.App. 360
• Parties: JOHN D. BROWNLEE, Respondent, v. CHARLES HEWITT, Appellant.
• Court: Missouri Court of Appeals

1 Mo.App. 360

JOHN D. BROWNLEE, Respondent,

v.CHARLES HEWITT, Appellant.

St. Louis Court of Appeals, Missouri.

Mar. 7, 1876.

1. Where a false statement as to the value of land, which excludes the possibility of honest error in judgment, is relied upon by a contracting party, and is the proximate cause of the transaction which results in damage to plaintiff, plaintiff is entitled to recover.

2. A false statement as to the value or quality of land may be fraudulent in law, though made in good faith.

3. Where the question is as to real estate, and the facts are peculiarly within the knowledge of defendant, and plaintiff relied on his statements, the negligence of plaintiff in making inquiry will not excuse the defendant.

4. Where counsel are sent out of the court-room to argue the cause to the jury out of the presence of the judge before whom the cause was tried, if improper remarks are made to the jury on either side, calculated to prejudice the jury, a new trial should be granted, on the application of the party aggrieved, unless it clearly appears that no evil result was produced by these remarks.

5. The fact that the party aggrieved consented to argue the cause out of the presence of the court, when requested so to do by the judge trying the cause, does not constitute a waiver of his right to have the argument of the cause conducted in the presence of the court.

6. It is error for a judge to absent himself during the closing argument of the cause before the jury.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

Slayback & Haeussler, for appellant, cited: Ried v. Piedmont, etc., 58 Mo. 422; Clarke v. Hammerle, 27 Mo. 55; Mead v. Brotherton, 30 Mo. 201; Tood v. Boone County, 8 Mo. 431; Alexander v. Keer, 2 Rawle (Penn.), 83; Chew v. Caliott, 1 Walk. (Mich.) 84; Knouff v. Thompson, 16 Penn. 357; Kerr on Fr. & Mis. 83, 84; 2 Add. on Torts, 1004; Wannell v. Kim, 57 Mo. 479; Hubbard v. Briggs, 31 N. Y. 518; White v. Merritt, 7 N. Y. 352; Weed v. Case, 55 Barb. 534; Williamson v. Raney, 1 Freem. 112; Allen v. Hopson, 1 Freem. 276; Dooley v. Jennings, 6 Mo. 61; Bree v. Hollbech, Dougl. 655; Broom's Leg. Max. 743; State Bank v. Hamilton, 2 Ind. 457; Oldham v. Bentley, 6 B. Mon. (Ky.) 428; Oberland v. Speiss, 45 N. Y. 169; Nelson v. Luling, 46 How. (N. Y.) Pr. 365; Eames et al. v. Morgan et al., 37 Ill. 260; Tryon v. Whitewash, 1 Metc. 1; Hanson v. Edgerly, 29 N. H. 343; Marsh v. Falker, 40 N. Y. 562; Nye v. Merriam, 35 Vt. 438; Collins v. Evans, 5 Q. B. 826; Ormrod v. Huth, 14 M. & W. 664; Muller v. Eno, 14 N. Y 597; Ward v. Reynolds, 32 Ala. 384; Hinckly v. Hendrickson, 5 McLean, 170; Smith v. Smith, 30 Vt. 139; Weiner v. Clement, 37 Penn. 147; Groff v. Hensel, 33 Md. 161.

W. H. Clopton, for respondent, cited: House v. Marshall, 18 Mo. 368; Smith v. Richards, 13 Pet. 26; Monroe v. Pritchard, 16 Ala. 785; Medbury v. Watson, 6 Metc. 246; Glasscock v. Minor, 11 Mo. 657; Buford v. Caldwell, 3 Mo. 477; Anderson v. Jarvis, 4 Bing. 69; Williamson v. Allison, 2 East, 446; Osgood v. Lewis, 2 Har. & G. 495; Paisley v. Freeman, 13 Ves. 133, and 3 T. R. 51; Upton v. Vail, 6 Johns. 181; 3 Johns. 271; 12 Mass. 20; 6 Metc. 246; Foster v. Charles, 6 Bing. 396; Corbet v. Brown, 8 Bing. 83; Freeman v. Baker, 5 B. & A. 797; Hart v. Talmadge, 2 Day (Conn.), 382; Young v. Hall, 4 Ga. 95; Stiles v. White, 11 Metc. 356; Weatherford v. Fishback, 3 Scam. (Ill.) 170; White v. Wheaton, 3 Seld. (N. Y.) 352; Griffith v. Ely, 12 Mo. 517; Holland v. Anderson, 38 Mo. 55; Hall v. Clark, 21 Mo. 415; Irving v. Thomas, 18 Me. 418; Story on Sales, 293-330; Leflore v. Justice, 1 Smed. & M. (Miss.) 381; Otto v. Alderson, 10 Smed. & M. (Miss.) 476; Ross v. Crutzinger, 7 Mo. 245; Ridens v. Ridens, 29 Mo. 469; Mathews v. Elevator Co., 50 Mo. 149; Cornell v. Jackson, 3 Cush. (Mass.) 506; Whitney v. Alliare, 1 Comst. (N. Y.) 305; Van Epps v. Harrison, 5 Hill, 63; Hill. on Torts, p. 32, sec. 26; Hutchinson v. Granger, 13 Vt. 386; Hunt v. Simonds, 19 Mo. 588; Loyd v. Hannibal & St. Jo. R. R. Co., 53 Mo. 509; Hill. on New Tr. 225, sec. 40; Hill. on New Tr. 227, secs. 45, 48, 50.

BAKEWELL, J., delivered the opinion of the court.

This is an action for damages in the nature of a writ of deceit against defendant for making false and fraudulent representations, whereby plaintiff was induced to trade off the stock and fixtures of a grocery store, worth $2,500, for certain lands in Illinois and Missouri.

The petition alleges that plaintiff was induced to make the trade by the false and fraudulent representations of defendant, to the effect that the lands were worth that sum, and that the title to them was at the time well vested in one Newkirk, who was to convey the same.

The lands are clearly shown to have been worth less than $800. The testimony of some witnesses puts them down as worth less than $200. It also appears that Newkirk, at the time, had not the legal title to one of the tracts, and that Newkirk's deed executed to plaintiff was worthless, passing no title. As to the other material facts necessary to establish plaintiff's case, the evidence is contradictory. It consists mainly of the testimony of plaintiff and defendant, who contradict each other.

There was a verdict and judgment for plaintiff for $2,300, and, a motion for new trial being overruled, the case is brought here by appeal.

Some exceptions were taken to the introduction and exclusion of evidence; but they are not insisted upon, and need no particular notice.

The appellant relies for a reversal upon the points that the damages are excessive, and that the court erred in granting an instruction at the instance of plaintiff, and in refusing certain instructions asked by defendant.

The only instruction given for the plaintiff was as follows:

“The court instructs the jury that, if they believe upon the evidence that the plaintiff was, on or about September 2, 1869, the owner of a grocery store in the city of St. Louis, worth a large sum of money, and that defendant did falsely and fraudulently represent to plaintiff that the lands described in plaintiff's petition were good and arable lands, and worth, respectively, from $8 to $25 per acre, and that the title to the said lands in Missouri was vested in one John V. Newkirk; and if they believe that the lands were not good, arable lands, and were, at the time of such representations, of little or no value, and that the title to the said Missouri lands was not in said Newkirk's hands, so as to enable him to convey the same to plaintiff; that said lands were distant from plaintiff's place of residence; and that defendant claimed special knowledge of said lands, and that plaintiff relied on defendant's representations as to character, value, and title of said lands, and that said representations were the material inducement to an exchange made by plaintiff of his grocery store for said lands, and that said Hewitt was benefited by said false and fraudulent representations, they will find for the plaintiff, and assess his damages at an amount equal to the difference they may find between the value of said grocery store, wares, goodwill, and fixtures, and the said lands, at the time of said exchange.”

The following instruction was given at the instance of defendant.

“The court instructs the jury that, if they believe from the evidence that defendant made no false and fraudulent representations to plaintiff of the value or character or title of the land specified and described in the petition, then they will find for defendant.”

These were all the instructions given in the case. The following, asked by defendant, were refused by the court:

1. “If the jury believe from the evidence that there was no acquaintance between plaintiff and defendant prior to the transaction in controversy; that by reasonable diligence and inquiry, by exercising common and reasonable care, he could have ascertained the title, value, and character of the lands in question; and that defendant was in no manner interested with Newkirk in the purchase of the grocery, then they should find for defendant.”

2. “The court instructs the jury that, if they believe from the evidence that defendant sold the lands in question to one Newkirk, for $800; that Newkirk afterwards traded them with plaintiff; and that defendant was in no manner interested with said Newkirk in the purchase or trade with plaintiff, then they will find for defendant.”

3. “The court instructs the jury that, if they believe from the evidence that the defendant sold the land in question to one Newkirk, for $800; that Newkirk traded the same land with plaintiff, and that with his, plaintiff's, consent, a deed for the Fulton county lands was made direct from defendant to plaintiff, and received and recorded by him; that plaintiff knew that Newkirk was indebted to defendant, and not entitled to a deed for the other land until the $800 note was paid; and that defendant was not interested in the purchase of the grocery from plaintiff, then they should find for defendant.”

4. “The court instructs the jury that, if they believe from the evidence that plaintiff was informed, at the time he traded with Newkirk, that the title to the land in question was in Hewitt, and that Hewitt referred him to Mr. Fritchey, from whom he had acquired the land, for information as to character and value of the land, and that Hewitt was in no manner interested in the purchase of said property from plaintiff, then they should find for defendant.”

5. “The court instructs the jury that, if they believe from the evidence that defendant did not conspire with one John V. Newkirk to cheat and defraud plaintiff, then they will find for the defendant.”

6. “The jury are instructed that, if they believe from the evidence that plaintiff received the title to the premises in controversy, and has sold and disposed of the same with the knowledge that his title would not be perfect to one of the tracts until he paid to Hewitt the balance of the note of...