Campbell v. State Highway Commission

• Decision Date: 29 April 1940
• Parties: EDWARD A. CAMPBELL AND NETTIE PEARL CAMPBELL, RESPONDENTS, v. STATE HIGHWAY COMMISSION OF MISSOURI, APPELLANT
• Court: Kansas Court of Appeals

139 S.W.2d 559

234 Mo.App. 1111

EDWARD A. CAMPBELL AND NETTIE PEARL CAMPBELL, RESPONDENTS, v. STATE HIGHWAY COMMISSION OF MISSOURI, APPELLANT

Court of Appeals of Missouri, Kansas City

April 29, 1940

Appeal from Cole Circuit Court.--Hon. Nike G. Sevier, Judge.

Judgment reversed and cause remanded.

Louis V. Stigall and Lue C. Lozier for appellant.

(1) The court erred in overruling appellant's motion to make the amended petition definite and certain for the reason that said petition fails to conform to the requirements of law requiring a plain and concise statement of the facts constituting the alleged cause of action, by reason of which indefiniteness and uncertainity the precise nature of the charge was not apparent and appellant was unable to answer said petition or to prepare its case for trial. (a) Threats to institute condemnation proceedings are not duress; and the petition alleges the deed was obtained by "threats," but the threats alleged to have been made by appellant's agents, ather than that of instituting condemnation proceedings, are not set out in the petition. Sec. 8111, R. S. Mo., 1929; 18 C. J. "Deeds," sec. 160, p. 235; Wood v. Tel Co., 223 Mo. 537, 123 S.W. 6; Miss. Valley Trust Co v. Begley, 310 Mo. 287, 275 S.W. 540. (b) Representations or promises as to something to be done in the future are not actionable; and it is not specified in the petition what representations or promises are claimed to have been made by appellant's agents as to improvements or construction by appellant or other landowners, or whether such representations related to past, present or future improvements, or wherein appellant failed to carry out its alleged promises. Reed v. Cooke, 331 Mo. 507, 55 S.W.2d 275. (c) Fraud cannot be pleaded as a legal conclusion, but the facts must be set out; and the allegations of the petition that the deed was obtained "by deception and fraud," "by means of deception," and that plaintiffs discovered the "fraud and deception worked upon them" are legal conclusions only. State ex rel. Smith v. Sevier, 92 S.W.2d 102; Piggott v. Denton, 46 S.W.2d 618; Taverno v. Am. Auto Ins. Co., 112 S.W. 941; State ex rel. v. Barton, 104 S.W.2d 284; Taylor v. Ter. R. Assn., 112 S.W.2d 944; Klaber v. Unity School of Christianity, 330 Mo. 854, 51 S.W.2d 30; Dickey v. Volker, 321 Mo. 235, 11 S.W.2d 278. (d) The facts constituting the alleged fraud must be set forth with particularity; and the allegations of the petition that appellant's agents "made untruthful statements about having deeds from other property owners and about making improvements and about other property owners making improvements on the various corners of the intersection" are vague generalities, too undefinite and uncertain; the alleged untruthful statements should have been set forth with particularity. Sec. 785, R. S. Mo., 1929; Stonemets v. Head, 248 Mo. 243, 154 S.W. 108; Boggs v. Gosser, 55 S.W.2d 722; Kithcart v. Met. Life Ins. Co., 88 F.2d 407. (e) The motion to make definite and certain was proper and should have been sustained. Galvin v. Kansas City, 122 S.W.2d 379; School Dist. v. Oellien, 209 Mo. 464, 108 S.W. 529; Bibber v. Willman Fruit Co., 234 S.W. 356; Sommers v. St. L. Transit Co., 108 Mo.App. 319, 83 S.W. 268; Ruebsam v. St. L. Transit Co., 108 Mo.App. 437, 83 S.W. 984; Roseman v. U. Rys. Co., 180 S.W. 452; Kavanaugh v. City of St. Louis, 220 Mo. 496, 119 S.W. 552; Met. Pav. Co. v. Brown-Crummer Inv. Co., 309 Mo. 638, 274 S.W. 815; McMath v. Holekamp Lbr. Co., 259 S.W. 843; Meade v. Brown, 282 S.W. 457; Kramer v. K. C. P. & L. Co., 311 Mo. 369, 279 S.W. 43.

H. P. Lauf, John O. Bond and V. E. Phillips for respondents.

(1) Only errors and matters of exception raised by motion for new trial can be considered by an appellate court. Missouri Digest, Appeal & Error, Key No. 301; Clark v. Clark, 191 Mo. App., l. c. 281, 177 S.W. 1077; Harding v. Bedoll, 202 Mo. l. c. 635, 100 S.W. 638; Hogan v. Hinchey, 195 Mo. l. c. 533, 94 S.W. 522; Bank of Tipton v. Davidson, 40 Mo.App. l. c. 423; Langstaff v. Webster Groves, 246 Mo. l. c. 225, 151 S.W. 456; Chandler v. Western Union Telegraph Company (Mo. App.), 195 S.W. 540. (2) No motion for new trial upon the judgment finally entered and to which complaint is made is shown in defendant's abstract--either in the record proper or the bill of exceptions. (3) Defendant's sole complaint, if it had properly raised same for consideration by this court, was the overruling of its motion to make the petition more definite and certain. By filing a motion to modify the decree and obtaining favorable action in part by the court, defendant would be held to have waived the alleged error, if such were before this court. Kramer v. K. C. Power & Light Co., 311 Mo. 369, 279 S.W. 43. (4) Sufficient certainty and definiteness in the petition, warranting the overruling of defendant's motion to make more definite and certain, appear in the record, and defendant's point would be overruled by this court even if properly raised and available. 3 Pomeroy's Eq. Jur. (4 Ed.), sec. 981. (5) By filing a motion to modify the decree and obtaining favorable action in part by the court, appellant (defendant) waived the alleged error in the overruling of its motion to make the amended petition more definite and certain. Decennial Digest--Pleading--Key No. 426 (3); Kramer v. K. C. Power & Light Co., 311 Mo. 369, 279 S.W. 41; State ex rel. Brancato v. Trimble, 322 Mo. 318, 18 S.W.2d 5; Tower v. Moore, 52 Mo. 118. (6) Sufficient certainty and definiteness in the petition warranted the court's action in overruling the motion to make more definite and certain. Sartin v. Springfield Hospital (Mo. App.), 195 S.W. 1037; Ozark Fruit Growers Association v. Sullinger (Mo. App.), 45 S.W.2d 887; Clark v. King, 178 Mo.App. 381, 162 S.W. 669; Baugher v. Gamble Const. Co., 324 Mo. 1233, 26 S.W.2d 946; Benjamin v. Railroad, 245 Mo. 598.

OPINION

BLAND, J.

This is a suit in equity, growing out of the procurement, by defendant, of a deed to land owned by plaintiffs.

The petition alleges that the plaintiffs were the owners of certain land in Jackson County, Missouri; that said real estate is located at the southwest intersection of Highways 50 and 35; "that previous to February 21, 1930, agents and representatives of defendant State Highway Commission endeavored to obtain from plaintiffs a deed to said tract of real estate; that plaintiffs refused to execute said deed except upon payment of the fair value of land so to be used for highway purposes; that on or about February 21, 1930, field agents whose names are unknown to plaintiff, threatened plaintiffs to cause to be instituted condemnation proceedings, taking all of the tract hereinbefore mentioned and a part of an adjoining tract owned by plaintiffs, but leaving a small triangular tract of land which could not be utilized for business purposes; that said agents made untruthful statements about having deeds from other property owners and about making improvements and about other property owners making improvements on the various corners of said intersection and by means of deception and promises with respect to the manner in which the tract so desired was to be used and improved, obtained from plaintiffs a deed to said property, reciting the consideration of $ 1, but which consideration of $ 1 was never paid, which deed is of record in the Recorder's office in Jackson County, Missouri, at Independence in Book 556, at page 496.

"Plaintiffs further state that said deed was obtained from them by threats, deception and fraud, and by reason of promises concerning improvements and construction which defendant failed to carry out."

The petition further alleges that the reasonable value of said premises was the sum of $ 2500 and that amount would have been awarded to plaintiffs if defendant had taken the land by condemnation proceedings.

The petition prays that defendant be required to reconvey the real estate, or, be required to institute condemnation proceedings to determine the fair value of the real estate, or, that the court direct a trail be had so as to ascertain the reasonable value of the real estate in the event the court should find plaintiffs are not entitled to the other relief asked. The petition also prays for general relief.

Defendant filed a motion to make the petition more definite and certain. The motion is quite long and it is not necessary to set it out in detail. It is sufficient to say that defendant asks that plaintiffs be required to plead the facts in reference to untruthful statements of the field agents of defendant, . . . "about having deeds from other property owners;" and about defendant and other property owners "making improvements," and what the deception consisted of as to the manner in which the land covered by the deed was to be used and improved by the defendant; "that, except for the alleged threat to cause to be instituted a condemnation proceeding, the threats whereby it is alleged defendant obtained plaintiffs' deed, are not specified or set out."

The court overruled the motion to make more definite and certain defendant refused to plead further and the Chancellor proceeded with the trial of the case. Defendant did not participate in the trial, although it appears that its attorney was present. At the conclusion of the trial the court, on February 18, 1938, rendered a decree in favor of plaintiffs. On the same day defendant filed its motion to set aside the judgment and for a new trial, complaining that the court erred in overruling defendant's motion to make the petition more definite and certain and, also, complaining that plaintiffs' own evidence "only tended to show that the agents of plaintiff (defendant) threatened to cause to be instituted...