Bubach v. Musick

• Decision Date: 03 December 1923
• Docket Number: No. 14848.,14848.
• Parties: BUBACH v. MUSICK.
• Court: Missouri Court of Appeals

256 S.W. 116

BUBACH v. MUSICK.

No. 14848.

Kansas City Court of Appeals. Missouri.

December 3, 1923.

Appeal from Circuit Court, Cole County; H. J. Westhues, Judge.

"Not to be officially published."

Action by J. A. Rubach against C. C. C. Musick, guardian of John M. Nichols, insane. Judgment for defendant in the probate court and in the circuit court on appeal, anti plaintiff appeals. Affirmed. .

Irwin & Haley, of Jefferson City, for appellant:

Dumm & Cook, of Jefferson City, for respondent.

TRIMBLE, P. J.

This action arose on a demand presented in the probate court against the estate of J. M. Nichols, insane, defendant Musick being his guardian and curator. The demand, in the form of a petition, alleged that, after obtaining an order to sell his ward's real estate, said guardian entered into a contract of sale with plaintiff whereby he agreed to sell said real estate, being the west half of the northwest quarter of section 4, township 42, range 13, in Cole county, Mo., for the price of $100 per acre; that said guardian represented said land to contain 66 acres, less one-half acre taken for a road, leaving 65½ that plaintiff relied upon said statement as to the quantity of land, and, being deceived thereby, was induced to pay said guardian $6,500 ($6,550) for 65½ acres, whereas said tract contained only 61.32 acres, including the road, and, taking it out, left only 60.82 acres, which, at $100 per acre, made the amount due guardian $6,082, instead of $6,500, and that by reason of said guardian's false representations plaintiff was induced to pay the excess, which the guardian refused to return, and for which judgment is prayed.

Defendant filed no written pleadings, none being required, as the case originated in the probate court. Judgment being rendered for defendant in the probate court, plaintiff appealed to the circuit court, where, upon a trial before the court without a jury, and on which no declarations of law were asked or given, and the judgment was rendered for defendant. Plaintiff has appealed to this court.

For 13 years plaintiff lived on a farm adjoining the one he bought of defendant. After Nichols was adjudged insane and defendant Musick became his guardian, plaintiff told defendant if ever he got ready to sell the place to let him know, and he would try to buy it. After the order of sale was made plaintiff offered $5,800 for the place, which defendant declined, and plaintiff told defendant if he got a better offer than $5,800 to let him know. Later plaintiff made an offer of $6,000. In these nothing was said about any price per acre. Plaintiff says he was then offering a lump sum. These bids were refused. Later guardian saw plaintiff, and, not succeeding in getting a satisfactory offer, was turning away to go visit another prospective purchaser, when plaintiff called to him, and said, "I'll give you $100 per acre for it." Defendant went away, but later returned, and said, "I guess it is your place, Joe."

Plaintiff testified that he had heard. Nichols, the owner of the land, say a few times that he had 66 acres; and, when plaintiff made the bid of $100 an acre, his notion was that the place would cost him $6,550. "I thought I knew what was in the place." The evidence in his behalf is further that, immediately after the guardian had agreed to sell him the place, they went to the house, and plaintiff there paid defendant $1,000, and that he (plaintiff) there asked defendant if there were not 66 acres in the place, to which defendant replied, "Yes"; that he then asked defendant if the road did not take off a half acre, and defendant also replied, "Yes."

Defendant denies that he told plaintiff as a positive fact that there were 65½ acres in the place. He says that when plaintiff asked him how many acres there were he told plaintiff he did not know how many; that all he knew was that Nichols had always called it 66 acres; and at this plaintiff said a half acre had been sold off, and asked for the deed to Nichols. Defendant says he told plaintiff he did...