Callan v. Callan

• Decision Date: 09 June 1903
• Citation: 74 S.W. 965,175 Mo. 346
• Parties: CALLAN, Appellant, v. CALLAN
• Court: Missouri Supreme Court

74 S.W. 965

175 Mo. 346

CALLAN, Appellant, v. CALLAN

Supreme Court of Missouri, Second Division

June 9, 1903

Appeal from Barry Circuit Court. -- Hon. Henry C. Pepper, Judge.

Affirmed.

A. D Darrock, A. P. Tatlow and O. T. Hamlin for appellant.

(1) In an action to recover damages for false and fraudulent representation, the intentional deceit is necessary to be found. But this appears from knowingly misstating a material fact, knowing that it was acted on from a belief in its truth, without any fault or negligence on the part of the person so acting. The known falsity of a representation is strong evidence of a purpose to practice a fraud. Brookin v. Shinn, 25 Mo.App. 277; Jollifee v. Collins, 21 Mo. 342; Peers v. Davis, Admr., 29 Mo. 189. The general rule is that when parties are on an equal footing representations and exaggerations of the value of property will not be considered fraudulent. But, if from the character, situation, or surroundings of the thing traded for, one party is compelled to trust to the representations of the other, and reposing special confidence in him for that purpose, relies on his proffered representation, being precluded from the situation of the property from giving it his personal observation, or from its character, being unable to judge of it, the law will protect him in the trust he reposes in the opposite party. Cahn v. Reid and Bungardt, 18 Mo.App. 115; Chase v. Rusk, 90 Mo.App. 25; Glasscock v. Minor, 11 Mo. 655; Teachout v. Van Hosen, 1 L. R. A. 666; Owens v Rector, 44 Mo. 392; Shinnabarger v. Shelton & Lane, 41 Mo.App. 155. (2) The rule that in cases of fraud the statute of limitations begins to run only from the discovery of the fraud does not apply where the party affected by the fraud might, with ordinary diligence, have discovered it. But, the failure of such diligence may be excused where there exists some relation of trust and confidence between the party committing the fraud, and the party affected by it, rendering it a duty of the former to disclose to the latter the true state of the transaction, and where it appears that it was through confidence in the acts of the party who committed the fraud that the other was prevented from discovering it. Bank v. Harris, 118 Mass. 147; Bank v. Forster, 8 Watts 12; Wear v. Skinner, 46 Md. 257; Wilson v. Ivy, 32 Miss. 233; Buckner v. Calcote, 28 Miss. 432; Bigelow, Fr., 445; Way v. Cutting, 20 N.H. 187; Losch v. Pickett, 36 Kan. 216.

Geo. Hubbert for respondent.

(1) It may suffice to suggest (without regard to the fact that appellant's testimony shows full knowledge of the facts and that she even instituted a suit to set aside her conveyance to respondent soon after the transaction) the bar of the five-year limitation statute stands effectually in her way, notwithstanding her alleged ignorance of the alleged fraud for over five years. Shelby v. Bragg, 135 Mo. 300. Here there was no exercise of diligence or use of the means of discovery by appellant. Nor, in fact, any concealment by respondent. The petition is fatally defective and the evidence is insufficient to make a case if the petition were sufficient. Wood v. Carpenter, 101 U.S. 135; Buckner v. Calcate, 28 Miss. 596; Wood, Lim., sec. 276. "There must have been some positive act of fraud, something so furtively planned and secretly executed as to keep the plaintiff's cause of action concealed, or perpetrated in a way that it conceals itself. And if the plaintiff, by reasonable diligence, might have detected the fraud, he is presumed to have reasonable knowledge of it," said the court in McKneeley v. Terry, 61 Ark. 521, citing: Busw. Lim., sec. 385; Story, Eq., sec. 152; Piper v. Hoard, 65 How. Pr. (N. Y.) 228; Underhill v. Ins. Co., 67 Ala. 45; Ramsey v. Quillen, 5 Lea (Tenn.) 184; Adams v. Inhabitants Ipswich, 116 Mass. 570; Wood v. Carpenter, 101 U.S. 135; Tyler v. Angeoine, 15 Blatchf. (U.S.) 541; Eiffert v. Craps, 7 C. C. A. 319; 58 F. 470; Ware v. Galveston, 146 U.S. 116; Felix v. Patrick, 145 U.S. 332; Hardt v. Heidweyer, 152 U.S. 559; DeMares v. Gilpin, 15 Colo. 48; 24 P. 571; Underhill v. The Mobile Co., 67 Ala. 51; Walker v. Soul, 138 Mo. 570. (2) But there is no original cause of action shown -- no facts constituting such cause. Representations and statements as to value of property are matters of opinion, and not to be relied on by purchasers and, though false, they afford no ground for action. Homer v. Perkins, 124 Mass. 431; Anderson v. McPike, 86 Mo. 300; Franklin v. Holle, 7 Mo.App. 245; Dawson v. Graham, 48 Iowa 378; Graffenstein v. Epstein, 23 Kas. 443; 33 Am. Rep. 171; Ellis v. Andrews, 56 N.Y. 83; 15 Am. Rep. 379; Parker v. Moulton, 114 Mass. 99; 19 Am. Rep. 315; Shade v. Creviston, 93 Ind. 591; Williams v. McFadden (Fla.), 1 So. Rep. 618; Crysler v. Canaday, 90 N.Y. 272; 43 Am. Rep. 166; McComos v. Haas, 93 Ind. 276. Or if one rely on the representations of facts not calculated to impose on men of ordinary prudence, or neglect to employ means of information easily reached for ascertaining the truth, the representations give no cause of action, however false. Brauckman v. Leighton, 60 Mo.App. 43; Hitchcock v. Baugham, 36 Mo.App. 222; Dunn v. White, 63 Mo. 185; Langdon v. Green, 49 Mo. 363; Mamlock v. Fairbanks, 46 Wis. 415; 1 N.W. 127; Lewis v. Land Co., 124 Mo. 687. "A false assertion of value, when no warranty is intended, is not ground of relief to a purchaser. The assertion is a matter of opinion, which does not imply knowledge, and in which men may differ. Every person reposes at his peril in the opinion of others, when he has equal opportunity to form and exercise his own judgment. And. Dict. Law, p. 198; 2 Kent Com., 485; Gordon v. Parmelee, 2 Allen 214; Hull v. Field, 76 Va. 605: "The law recognizes the fact that men will naturally overstate the value and qualities of the article which they have to sell." Kimball v. Bangs, 144 Mass. 323; 11 N.E. 113; Dunn v. White, 63 Mo. 185; Isaacs v. Skrainka, 95 Mo. 524; Tootle v. Lysaght, 65 Mo.App. 141; Wannell v. Keren, 57 Mo. 489; Bailey v. Smock, 61 Mo. 217; Dunn v. White, 63 Mo. 181. They must also have been relied upon, and the transaction must have rested solely on the faith of them, and as to this the burden is on plaintiff. Bryan v. Hitchcock, 43 Mo. 527; Parker v. Marquis, 64 Mo. 38; Ninnan v. Oberle, 90 Mo. 666.

OPINION

BURGESS, J.

This is an action for five thousand five hundred dollars damages alleged to have been sustained by plaintiff by reason of fraud and deceit practiced upon her by defendant, in the procurement of a deed from her and inducing her to accept from him a conveyance of sixty acres of land of an inadequate and misrepresented value. The transaction out of which this litigation grew took place on the third day of October, 1893. This suit was begun on the 17th day of January, 1899.

The petition, leaving off the formal parts, is as follows:

"Plaintiff states that she and defendant are brother and sister, and that they are the sole and only heirs of James Callan deceased; that their mother's name was Hannah Callan and that she is also dead. Plaintiff further states that James Callan died seized of the following described real estate in Barry county, Missouri, to-wit," describing it. "Plaintiff further states that prior to the death of her mother, Hannah Callan, she, said Hannah Callan, for a valuable consideration, by a proper deed of conveyance, granted, bargained, and sold to this plaintiff all her estate, whether real, personal or mixed, reserving to herself only a life estate therein; and that the said Hannah Callan afterwards departed this life on the -- -- day of -- --, 1897, and this plaintiff would now be the true and rightful owner of all property of the estate of Hannah Callan, deceased, except for the reasons hereinafter stated. That on the 3d day of October, 1893, this defendant offered this plaintiff a deed to sixty acres of land which he represented to be worth six thousand dollars, for her interest in her father's real estate, and this plaintiff believing and relying upon the statement of her brother as to the value of the land agreed to and did accept sixty acres for her interest in the real estate of James Callan's estate. That she signed the deed presented to her believing that she was only relinquishing her interest in her father's real estate and that the consideration for said deed from her to her brother was six thousand dollars, and the deed to the sixty acres to her from her brother the same, and that the representations made to her by her brother as to the value of the sixty acres were true. But she has since learned the fact to be that said sixty acres are not worth and were not at the time worth over the sum of five hundred dollars, and that the representations made to her by defendant were false and known to be so by him at the time and made for the purpose of deceiving and defrauding her; that the interest conveyed by her to her brother she has since learned included the property she obtained from her mother, Hannah Callan, and that it was all reasonably worth the sum of six thousand dollars; that all that this plaintiff ever received from said brother in return for said interest and property aforesaid, was said sixty acres of land aforesaid, which is not worth over the sum of five hundred dollars, though represented to her by the defendant at the time to be worth six thousand dollars; that this plaintiff did not know any difference as to the misrepresentations aforesaid as to the said value until September, 1898. Wherefore, plaintiff says that by means of said unlawful and fraudulent representations as aforesaid so made by the defendant as aforesaid and known by the defendant to be false at the time he made them, this plaintiff has been cheated and defrauded out...