Carr v. Swift

• Decision Date: 05 November 1914
• Docket Number: No. 1072.,1072.
• Parties: CARR v. SWIFT et al.
• Court: Missouri Court of Appeals

170 S.W. 914

185 Mo. A. 86

CARR v. SWIFT et al.

No. 1072.

Springfield Court of Appeals. Missouri.

November 5, 1914.

Rehearing Denied November 27, 1914.

1. SET-OFF AND COUNTERCLAIM (§ 29) — FRAUD — REMEDIES.

In cases of fraud, the party may either rescind the contract or may perform and sue for damages resulting therefrom; and hence defendants, who entered into a contract with plaintiff in reliance upon his fraudulent misrepresentations, may maintain counterclaim for damages in an action at law.

2. FRAUD (§ 38) — DEFENSES — LACHES — NATURE OF DEFENSE.

Where defendants claimed damages for plaintiff's misrepresentations in effecting a contract, but did not seek a rescission, defendants' counterclaim was legal in its nature, and the defense of laches, which might have been interposed in a suit for rescission, was not applicable.

3. FRAUD (§ 31) — ACTIONS — COVENANTS IN DEED.

Defendants, who were induced by plaintiff's misrepresentations to enter into a contract for the exchange of a stock of goods for a tract of land, are not confined to the covenants in the deed to the land, but may hold what they got under the deed and sue at law for the damages.

Appeal from Circuit Court, Barton County; B. G. Thurman, Judge.

Action by J. W. Carr against Bird Swift and A. A. Swift, who counterclaimed. From a judgment for defendants, plaintiff appeals. Affirmed.

Garry H. Yount, of Van Buren (Stuart L. Clark, of Van Buren, of counsel), for appellant. J. B. McGilvray and Woodbury & Woodbury, all of Kansas City, for respondents.

ROBERTSON, P. J.

Plaintiff brought his action against the defendants, husband and wife, on a promissory note for $800, alleging that it was secured by a deed of trust on real estate in Carter county, that the deed of trust was foreclosed, and that $74.91 was realized from said sale and credited on the note. Judgment was asked for the balance. The defendants answered, admitting the execution of the note, and alleging three separate defenses. The third defense, a counterclaim, the one upon which the judgment was entered, alleged that the note was given in a trade between plaintiff and defendants; that the defendants traded a stock of merchandise valued at $1,823.19 to the plaintiff for land represented to be incumbered for the sum of $1,554.27; that as a part of the transaction defendants executed the said note, and the plaintiff also paid them the sum of $200 in cash; that this trade was brought about and induced by reason of false and fraudulent representations made by the plaintiff to defendants as to the character of improvements on, and the title of plaintiff to, said land; that the plaintiff represented that it was incumbered for said sum of $1,554.27 only, when as a matter of fact there were three other deeds of trust thereon; and that they had been damaged in the sum of $3,000 on account of the fraud and deceit of the plaintiff. A jury was waived, and the trial resulted in a judgment against plaintiff on his cause of action and in favor of the defendants for $1,600. The plaintiff has appealed.

No declarations of law were asked or given. The deed of trust referred to in plaintiff's petition as securing the note was on the land traded to defe...