Carnie v. Toll

• Decision Date: 26 February 1926
• Docket Number: 25503
• Citation: 281 S.W. 41
• Parties: CARNIE v. TOLL
• Court: Missouri Supreme Court

281 S.W. 41

CARNIE v. TOLL

No. 25503

Supreme Court of Missouri, Second Division

February 26, 1926

Ruby D Garrett and R. M. Sheppard, both of Kansas City, for appellant.

Morrison Nugent, Wylder & Berger, E. R. Morrison, Homer H. Berger and H. L. Hassler, all of Kansas City, for respondent.

OPINION

Statement

RAILEY C.

This action was tried in the circuit court of Jackson county, Mo., before a jury, which resulted in a verdict for plaintiff in the sum of $ 9,500. In due time defendant filed a motion for a new trial, in which the court was charged with error in overruling defendant's demurrer to the evidence at the conclusion of the case. A new trial was also asked, because the verdict was against the evidence and against the weight of the evidence. The court was also charged with error in giving, at the instance of plaintiff, instructions numbered 1, 2, and 3. Other grounds were set up in the motion for a new trial, which we do not deem necessary to mention here. The court sustained defendant's motion for a new trial as shown by its record entry, which reads as follows:

'The said defendant's motion for a new trial was taken up and submitted to the court, and, having been by the court seen and heard and duly considered, was by the court sustained for the reason that the judgment rendered herein is without evidence to support the same.'

Pleadings.

The case was tried upon an amended petition for fraud and deceit, the allegations of which are as follows:

'That on or about the 1st of February, 1920, the defendant was the owner of a certain moving picture show, located in Kansas City, Mo., and known as the Alamo Theater; that, for the purpose of inducing the plaintiff to purchase a two-thirds interest in said theater, the defendant falsely and fraudulently represented and stated to the plaintiff that said theater was being operated at a profit, and showed to plaintiff books which purported to be the books of account, showing the profits upon said theater for and during the year of 1919, which said books purported to show that said business was operated at a profit of more than $ 6,000 during the year of 1919; that the defendant stated to the plaintiff that he had owned said theater and operated the same since 1915, and that in each and every year said theater had been operated at a profit as great as the profit which he represented the said theater had made during 1919; that the said defendant, for the purpose of inducing the plaintiff to purchase said interest in said theater, made each and all of the aforesaid false and fraudulent statements to his agent, who was attempting to sell said theater to the plaintiff, representing to said agent that said statements were true, and authorizing and directing said agent to repeat said representations to the plaintiff, Carnie; and that said agent did repeat said statements to the plaintiff.'

The petition further alleged that plaintiff paid $ 9,500 for two-thirds interest in the theater in question, and that, instead of its being an asset, it was a liability and worthless for the purposes for which it was sold.

The answer of defendant was a general denial of the allegations contained in the amended petition.

The Evidence.

Without going into details, the facts, as shown in a general way, are substantially as follows: The testimony of plaintiff, corroborated to some extent by that of his wife, tends to show that in January, 1920, he commenced negotiating for a two-thirds interest in the theater mentioned in evidence, which was estimated to be of the value of $ 15,000; that in the deal he gave defendant his check for $ 5,000, an automobile valued at $ 1,000, and a check for $ 3,500, making in all, $ 9,500; that, as an inducement for said purchase, the respondent told plaintiff he had owned this picture show four or five years, and that, during all the time he owned it, the theater had paid a good profit, with the exception of a few months at the beginning; that these statements were made to him by respondent, in the presence of plaintiff's wife. We do not find in the record any other evidence of alleged fraudulent representations upon which plaintiff offered proof.

The evidence on behalf of respondent, tends to show, that he frankly told plaintiff the entire history of the theater, how it had been closed, and the fact that it had been a 5-cent show; that plaintiff bought the theater in order to give one of his friends employment; that it was then opened as a 10-cent show, redecorated, and started as a clean show with high-class pictures; that during the years 1915 and 1916 it was operated at a loss; that in 1917 it began to make a profit; that in 1918 the profits had accumulated to such an extent as to pay back its earlier operating losses, and to pay back the capital investment of $ 6,900, which defendant had put into the theater.

The plaintiff admitted that he received from defendant a complete record of the daily receipts and disbursements of said theater for the year 1919, prior to the purchase in February, 1920; that these receipts and disbursements for 1919 were shown to plaintiff's brother-in-law, who figured them up, and that they showed a profit of $ 5,800 for the year 1919; that plaintiff said on said profit he would value the theater at $ 15,000; that plaintiff testified his brother-in-law advised him it was a good investment.

On cross-examination, plaintiff's wife testified that she had been in this theater a few times before her husband purchased it; that she knew the character of the place; that it was a good, high-class picture show, so far as she knew; that she advised her husband to buy it; that defendant said it was a 5-cent show and he increased the price and built up the business, until it became a 20-cent show.

There was undoubtedly a conflict between the plaintiff's testimony, and that of defendant, in respect to the material issues in the case.

Such other matters as may be deemed of importance, will be considered in the opinion.

Opinion.

I. The question at issue here is whether or not the trial court abused its judicial discretion in granting defendant a new trial. Section 1424, Revised Statutes 1919, provides that:

'The court may award a new trial of any issue, upon good cause shown; but not more than one new trial of the same issue shall be granted to any one party.'

This subject was carefully considered in Littig v. Urbauer-Atwood Heating Co., 237 S.W. 782, 783, 292 Mo. loc. cit. 238, 239, and 240, where it is said:

'It has been the settled doctrine of this court, for more than 40 years, that the trial court may grant one new trial to either party, where the verdict returned is deemed to be contrary to the weight of the evidence.

'In Reid v. Piedmont & Arlington Life Ins. Co., 58 Mo. loc cit. 429, 430, Wagner, J., in discussing this subject, said: 'Constant complaints are reaching us that in some of the circuits the rule adopted here is followed, and that the judges consider themselves bound thereby. But this is founded in an entire misapprehension. The trial courts have opportunities which we have not. In witnessing and presiding over the trial, they are put in possession of facts which we cannot possibly attain. They see the witnesses; can form an...