Busse v. White

CourtUnited States State Supreme Court of Missouri
Citation302 Mo. 672,259 S.W. 458
Docket NumberNo. 23966.,23966.
PartiesBUSSE et al. v. WHITE et al.
Decision Date04 March 1924

Action by C. F. Busse and others against Paul White and others. Judgment for plaintiffs in an amount less than petitioned for, and they bring error. Reversed, and remanded, with directions to grant new trial.

D. W. Shackleford, of Jefferson City, J. M. Jeffries, of Moberly, and Sam B. Jeffries, of St. Louis, for plaintiffs in error.

George Woodruff and E. C. Anderson, both of Columbia, for defendants in error.

Statement.

RAILEY, C.

On August 16, 1921, plaintiffs commenced an action in the circuit court of Howard county, Mo., 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, arid the cause sent to Randolph county, where it was tried before a jury, and a verdict returned in favor of plaintiffs for $1,000. 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, Mo.; 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 world 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, Mo., 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, Mo., near the town of Chamois, and near the Missouri river, 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, Mo., 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, Mo., 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 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 only a short distance to the Callaway county farm, and was asked to go and examine same, which he declined to do; that the father, after a private conversation with his son Gus, told defendant White, that he would make the exchange on the judgment of Gus; that plaintiffs acquired their Mississippi lands a few months before the transaction in question transpired, by exchanging other lands for the 706-acre tract, and had taken it at $75 per acre; that the other tract of 122 acres the elder Busse had purchased at $125 per acre from the owner, without defendants being connected with said deal; that in the exchange of land complained of in the case at bar the plaintiffs put their Mississippi land at the stated consideration of $100 per acre for the 706-acre tract, and at the stated consideration of $175 per acre for the 122-acre tract; that plaintiff G. H. Busse knew he was getting the Callaway land from the defendants, and was not deceived by the fact that the title to said land was in the name of Gallemore.

Such other matters as may be deemed important will be considered in the opinion.

Opinion.

I. Appellants contend that the measure of damages in this case was the difference between the actual value of the land purchased by them in Callaway county and what it would have been worth had the representations of defendant been true. This is a correct statement of the law. Addis v. Swofford (Mo. Sup.) 180 S. W. 548; Kendrick v. Ryus, 225 Mo. 150, 123 S. W. 937, 135 Am. St. Rep. 585; Kaufman v. Davis, 175 Mo. App. loc. cit. 477, 161 S. W. 1180; Boyd v. Wahl, 175 Mo. App. 181, 157 S. W. 833; Boyce v. Gingrich, 154 Mo. App. 198, 134 S. W. 79; Warner v. Winfrey, 142 Mo. App. 298, 126 S. W. 213; Chase v. Rusk, 90 Mo. App. 25. The above principle of law was recognized by the trial court, and followed, in the giving of plaintiffs' instruction 1, and defendants' instruction 6. The latter reads as follows:

"The jury is instructed that the measure of damage, if any, is the difference between the actual value of the land when traded to plaintiffs and what said property would have been worth, if it had been as defendants represented it to be, and, unless plaintiffs prove there is a difference, then the jury must find for defendants."

It is contended, however, by appellants, that the damages awarded by the jury are grossly inadequate, and that a new trial should be granted them. We will take up this subject in the succeeding proposition.

II. Over the objections of appellants, the court, at the instance of defendants, gave to the jury instruction numbered 5, which reads as follows:

"The court instructs the jury that you cannot find for the plaintiffs and against the defendants unless you find from the evidence: (1) That said defendants made the representations charged to have been made; (2) that said representations were false; (3) that they were known by the defendants to be false at the time they made them, or that defendants made such representations as of their own knowledge, when in fact they had no knowledge whatever on the subject; (4) that they made them with intent that they be relied upon by plaintiffs; (5) that plaintiffs relied upon the same in making the exchange of lands, and would not have made the exchange of lands had such representations not been made; (6) that plaintiffs sustained injury by reason of false representations. You are further instructed that the burden of proof is upon plaintiffs to prove by the greater weight of the evidence each of the requirements above set out, and, if plaintiffs have failed to so prove said requirements, you should find for defendants."

The jury having returned a verdict in favor of plaintiffs for $1,000, their act in so doing, must...

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