Busse v. White
| Decision Date | 04 March 1924 |
| Docket Number | 23966 |
| Parties | C. F. BUSSE, G. H. BUSSE and A. F. BUSSE, Plaintiffs in Error, v. PAUL WHITE, JOHN H. COX and JOE DAVIS |
| Court | Missouri Supreme Court |
Appeal from Randolph Circuit Court; Hon. A. W. Walker Judge.
Reversed and remanded.
D W. Shackleford, J. M. Jeffries and Sam B Jeffries for appellants.
(1) The damages awarded by the verdict in this case are grossly inadequate, the measure of damages being the difference between the actual value of the land purchased and what it would have been worth had the representations been true. Kendrick v. Ryus, 225 Mo. 150; Boyd v. Wahl, 175 Mo.App. 181; Boyce v. Gingrich, 154 Mo.App. 198; Warner v. Winfrey, 142 Mo.App. 298; Chase v. Rusk, 90 Mo.App. 25. (2) The verdict for plaintiffs must be construed as a finding that defendants made the representations charged in the petition. Watson v. Harmon, 85 Mo. 443, 446. (3) The gross inadequacy of the verdict demands that the cause be reversed and remanded for a new trial. Cole v. Armour, 154 Mo. 333; Watson v. Harmon, 85 Mo. 443; Whitsett v. Ransom, 79 Mo. 258; Meily v. Hill, 216 S.W. 545; Fairgrieve v. Moberly, 29 Mo.App. 141; Spiro v. Transit Co., 102 Mo.App. 266; 3 Graham & Waterman on New Trials, 1167; Morris v. Railroad, 136 Mo.App. 393. (4) The value of the Mississippi lands was not in issue and evidence thereof should not have been admitted. Reigert v. Coal & Coke Co., 217 Mo. 160; Ringer v. Holtsclaw, 112 Mo. 523; Mansur v. Botts, 80 Mo. 651; Stout v. St. Louis Tribune, 52 Mo. 347; Surety Co. v. Const. Co., 182 Mo.App. 673; Boyd v. Wahl, 175 Mo.App. 185; Stockman v. Allen, 160 Mo.App. 232; Boyce v. Gingrich, 154 Mo.App. 198; Beagles v. Robertson, 135 Mo.App. 324; Fox v. Pullman Car Co., 16 Mo.App. 127; Sun Pub. Co. v. Moore, 183 U.S. 673; Rockefeller v. Merritt, 76 F. 909; Ice Co. v. Morris, 219 F. 551. (5) The value of the Cooper County land was not material and should not have been admitted for the alleged purpose of impeachment. State v. Nave, 283 Mo. 35, 39. (6) The statement in argument of Mr. Garstang: was error. Jackman v. Railway Co., 206 S.W. 244.
George Woodruff and E. C. Anderson for respondents.
(1) The damage awarded by the verdict of the jury is more than adequate under the facts in issue in this case, and the verdict should have been for defendants. (2) The verdict for plaintiffs clearly shows that it was a compromise verdict and within the law. McMurdock v. Kimberlin, 23 Mo.App. 532, 529; Hogan v. Mining Co., 131 Mo.App. 386, 391; State ex rel. v. Cowell, 125 Mo.App. 348, 356; St. Clair v. Mo. Pac. Ry. Co., 29 Mo.App. 76, 88. (3) The verdict in this case is based on conflicting evidence, and there being substantial evidence to sustain the verdict the judgment should be sustained. Cole v. Armour, 154 Mo. 333, 353; Whitsett v. Ransom, 79 Mo. 258, 260; Gregory v. Chambers, 78 Mo. 294, 298; Real Est. Co. v. Surety Co., 276 Mo. 183; Mach. Mfg. Co. v. Gans & Sons Mfg. Co., 198 M. App. 418, 421; Dorset v. Chambers, 187 Mo.App. 276. (4) The value of the Mississippi land was not in issue so far as the measure of damages are concerned, but was a matter to be considered in determining whether or not the plaintiffs relied upon the alleged representations as to the value of the Missouri lands. 27 C. J. 59, sec. 194; Vaupel v. Mulhall, 141 Iowa 365; Hibbets v. Threlkild, 137 Iowa 164; Alrich v. Scribner, 146 Mich. 609; Mires v. Summerville, 85 Mo.App. 183; Wagner v. Binder, 187 S.W. 1128. (5) The value of the Cooper County land was not material as to the measure of damages and was only solicited for the purpose of discrediting the witness; such examination was a matter within the discretion of the trial court, and this discretion will not be interfered with unless manifestly abused to the prejudice of the complaining party. Hirsch v. Green, 83 Mo.App. 486; Dumm v. Altman, 50 Mo.App. 231; Muller v. Hospital Assn., 5 Mo.App. 390, 401; State v. Miles, 199 Mo. 530, 546; State v. Potts, 239, Mo. 403, 413. (6) While the argument of Mr. Garstang, complained of by appellants, is not commendable, yet, appellants are in no position to complain at this time as the trial court sustained them in all they contended for and granted all they asked for. 3 C. J. 862, sec. 763; Stanffer v. Railroad, 243 Mo. 305, 324; Dutcher v. Railroad, 241 Mo. 137, 176; Norris v. Railroad, 239 Mo. 695, 719; Casey v. Gill, 154 Mo. 181, 185.
On August 16, 1921, plaintiffs commenced an action in the Circuit Court of Howard County, Missouri, against the above named defendants to recover $ 55,900, as damages growing out of certain land deals between said parties. On plaintiffs' application, the venue was changed, and the cause sent to Randolph County, where it was tried before a jury and a verdict returned in favor of plaintiffs for $ 1000. Judgment was entered in conformity to said verdict, plaintiffs filed a motion for a new trial, which was overruled, and the case was brought to this court on their writ of error.
The petition charges, in substance, that plaintiffs owned and were interested in a 706-acre farm and a 122-acre farm in the State of Mississippi, which they desired to sell; that defendants, in behalf of plaintiffs and upon their authorization, had undertaken to negotiate an exchange of said Mississippi farms, for a 508-acre farm in Callaway County, Missouri; that defendants had represented to plaintiffs that said 508-acre farm was owned by G. M. Gallemore, and that he had just bought it at $ 175 an acre; that it was worth more than $ 175 an acre, and that the said Gallemore would not take less than $ 200 an acre for it; that all of said representations were false, and by defendants known to be false when made, and were so made for the purpose and with the intention of cheating and defrauding plaintiffs; that said 508-acre farm was not the property of said Gallemore, but he held the legal title thereto for defendants, as a mere man of straw, in order to conceal from plaintiffs the fact that defendants were the owners thereof; that the value of said 508 acres of Callaway County land did not exceed the sum of $ 33,000, or $ 65 per acre; that plaintiffs relied upon the representations of defendants as true, and were thereby induced to enter into a contract to accept said 508-acre farm at $ 200 per acre in exchange for said Mississippi farms; that by reason of the fraud and deceit of the defendants heretofore set out, they have been damaged in the sum of $ 55,900 and for which they ask judgment, etc.
The answer of defendants to plaintiffs' first amended petition admits the exchange of the Mississippi lands for land in Callaway County, Missouri, and denies every other allegation contained in said petition.
The appellants at the trial offered substantial testimony tending to support the allegations of their petition.
The evidence in behalf of defendants, some of which was objected to by appellants, tends to show that the relation of plaintiffs in this case is that of father and two sons; that the father, having been a farmer all his life, bought, sold and exchanged a number of farms in Missouri, Kansas Mississippi and perhaps elsewhere; that he had owned and operated a farm in Osage County, Missouri, near the town of Chamois, and near the Missouri River and just across the river from Callaway County aforesaid, the river being the boundary line between the two counties; that the farm on which the father lived was only about 35 miles distant from the 508 acres in controversy; that the sons had lived with their father on said land practically all of their lives; that plaintiff, G. H. Busse, the elder son, who was 25 years of age when the lands aforesaid were exchanged, had farmed all his life, and was associated with his father, in buying, selling and exchanging lands; that about the year 1916, said G. H. Busse bought from or through the defendants, a farm in Howard County, Missouri, which the two sons farmed and managed for about two years and then sold at a profit of $ 15,000 or $ 20,000; that following the Howard County sale, said G. H. Busse bought a farm in Cooper County, Missouri, which plaintiffs later exchanged for the 706 acres of land in Mississippi; that said G. H. Busse claimed to be a judge of land and land values, and asserted that he had learned there was more money to be made in buying and selling land than there was in plowing and farming lands; that after the plaintiffs acquired the lands in Mississippi, they located upon the same in the spring of 1920, for the purpose and with the intention of improving and selling said land for speculation; that about that time land values declined in the United States, and plaintiffs found there were no buyers for land in Mississippi, as well as other places; that they then began to try and find land for which they could exchange their Mississippi lands; that G. H. Busse requested defendant Davis to find parties who were willing to exchange Missouri lands for those in Mississippi; that after defendants had located the land in Callaway County, it was proposed by defendants that G. H. Busse come to Missouri and look at the Callaway County land, which he did, and, after inspection of same, he went with defendants White and Cox to Chamois to see his father; that after some conversation between the father and defendants White and Cox, the father was told that it was...
To continue reading
Request your trial