Caldwell v. Henry

• Decision Date: 31 October 1882
• Parties: CALDWELL v. HENRY, Appellant.
• Court: Missouri Supreme Court

76 Mo. 254

CALDWELL

v.HENRY, Appellant.

Supreme Court of Missouri.

October Term, 1882.

Appeal from Jackson Circuit Court.--HON. S. H. WOODSON, Judge.

AFFIRMED.

Boggess, Cravens & Moore for appellant.

Comingo & Slover for respondent.

NORTON, J.

This is a suit by plaintiff to recover damages occasioned, as alleged in the petition, by false and fraudulent representations made by defendant to plaintiff's agent, whereby he was deceived, and induced to purchase of defendant certain lands in the state of Kansas at the price of $2,000, which was paid for by plaintiff conveying to defendant her one-third interest in certain land in Jackson county, Missouri. The alleged false representations were that the land conveyed by defendant was “high rolling prairie, all rich and dry and susceptible of cultivation, except a few acres in one corner, at which point a branch ran through it and afforded water suitable for pasture, and that the land was within seven miles of Olathe, Kansas.” The answer, after admitting the conveyance of the said land, denied all the other allegations of the petition, and upon the trial of the cause plaintiff obtained judgment for $1,600, from which defendant has appealed, and assigns for error the action of the court in refusing to admit proper evidence, and in giving improper and refusing proper instructions.

1. EVIDENCE.

It appears from the record before us that Thomas C. Caldwell, James Caldwell and plaintiff owned certain land in Jackson county, Missouri, the interest of each in said land being one-third; that Thomas C. Caldwell entered into negotiations with defendant for the sale of his interest and that of his brother James, in said land; that defendant declined to purchase unless he could get all the interests in said land; that D. I. Caldwell, as the agent of plaintiff, consented to the transfer of plaintiff's interest to the defendant, relying, as he swears, on the representations made to him by defendant of the quality and location of the land in Kansas. It also appears that during the examination of defendant as a witness he was asked, “What statement did you make to Thomas Caldwell during the negotiations for the exchange of property by you with the Caldwells for their farm, in regard to the condition, quality and location of the land in Johnson county, Kansas, which you conveyed to Fannie Caldwell?” Upon the objection of plaintiff the witness was not allowed to answer, and it is insisted by counsel that this action was erroneous. We cannot perceive upon what principle the evidence offered was admissible, except upon the theory that Thomas Caldwell was the agent of the plaintiff, who was his sister. If his agency had been established, or if the evidence introduced had tended to establish it, the evidence offered would have been admissible. We have failed to find anything in the evidence either establishing or tending to establish the fact that said Thomas Caldwell was the agent of plaintiff. On the contrary, he swears positively that in the negotiations with defendant, he was only acting for himself and his brother, and was not authorized to act for plaintiff; and other positive evidence in the case shows that D. I. Caldwell was her agent. It, therefore, follows that what was said by defendant to Thomas Caldwell could in no manner bind plaintiff, and the court in refusing to receive it acted properly.

The following instructions were given for plaintiff, over defendant's objection:

1. You will find for plaintiff, if you believe from the evidence that her father, acting for her, and as her agent, traded with defendant, or purchased of him for plaintiff the land in the petition described; that at the time of making said trade or purchase, she and said agent were ignorant as to the value, condition and location of said land; that said agent informed defendant he had not seen it and did not know its situation, condition or value, and could not then go to examine it; that defendant then told said agent that said land was all good; that it was high, rolling prairie, rich, dry and susceptible of cultivation, except a few acres; that it was situated about seven miles from Olathe, Kansas; that said representations were made by defendant for the purpose of deceiving and inducing said agent to trade for or purchase said land, and that said agent, relying solely on said representations, and believing they were true, was induced to trade for or purchase said land--provided you further believe from the evidence that said representations were untrue, and that defendant knew that such was their character; and although you may find from the evidence that defendant did not know said representations were untrue, yet if you believe from the evidence that pending the negotiations for the purchase of said land, and for the purpose of effecting the trade and inducing said agent to make it, defendant made said representations as of his own knowledge (and they were untrue), but did not know whether they were true or false, and knew, or had reason to believe, that said agent relied on said representations as true, and said agent did so rely on them, and was thereby deceived and induced to trade for or purchase said land, you will find for plaintiff.

2. You are further instructed that should you find for plaintiff, the measure of damages is such sum or amount as you may, from the evidence, believe was the difference between the actual value of said land at the time it was conveyed to plaintiff and what would have been its value at the time, had it been in point of quality, condition and location as represented by defendant, not exceeding the amount claimed in the petition; and if you find for plaintiff, you may allow her interest on the amount you may find...