Cole v. Wiedmair

• Decision Date: 26 October 1885
• Citation: 19 Mo.App. 7
• Parties: COLE BROTHERS & HART, Appellants, v. WIEDMAIR & WILDBERGER, Respondents.
• Court: Kansas Court of Appeals

19 Mo.App. 7

COLE BROTHERS & HART, Appellants, v. WIEDMAIR & WILDBERGER, Respondents.

Court of Appeals of Missouri, Kansas City.

October 26, 1885

APPEAL from Buchanan Circuit Court, HON. G. D. BURGESS, Judge.

Affirmed.

The facts are sufficiently stated in the opinion of the court.

LANCASTER THOMAS & LACY, for the appellants.

I. The false statements and fraudulent representations must be in regard to the existence or non-existence of material facts affecting the subject matter of the contract. Smithers v Bircher, 2 Mo.App. 499. Brownlee v. Hewitt, 1 Mo.App. 365; Torry v. Charter Oak Life Insurance Co., 3 Mo.App. 595; Stevens v. Rainwater, 4 Mo.App. 292. These facts must not be within the knowledge of the party complaining; they must not be such that he can ascertain the truth concerning them by the exercise of his faculties, or of ordinary prudence; nor such that he has the means within his power to easily and readily ascertain the truth, unless he has been prevented from using those means by some fraud or artifice. Buford v. Caldwell, 3 Mo 477; Armstrong v. Winfrey, 61 Mo. 354; Bailey v. Smock, 61 Mo. 217; Wannell v. Kern, 57 Mo. 492; McFarland v. Carver, 34 Mo. 195; Langdon v. Green, 49 Mo. 363; Dunn v. White, 63 Mo. 186; Griffith v. Eby, 12 Mo. 517.

II. The false representations must be of matters of fact and not of matters of law. People v. San Francisco. 27 Cal. 655. 2 Parsons on Cont. (6 Ed.) 793 and note b. Must not be opinions based upon or inferences drawn from the facts. Smithers v. Bircher, 2 Mo.App. 499; Wannell v. Kern, 57 Mo. 492; Stevens v. Rainwater, 4 Mo.App. 292; Union National Bank v. Hunt, 76 Mo. 445.

III. The fraud complained of must be something more than a breach of promise, and the defendants must have been deceived by it, and must have relied upon the fraudulent representations. Terry v. Ins. Co., 3 Mo.App. 595; Parker v. Marquis, 64 Mo. 38; Bryan v. Hitch, 43 Mo. 531. 2 Parsons on Cont. 773.

IV. They must have been damaged thereby, and the damage must have been the direct and immediate consequence of the false representations, and must be certain and capable of exact estimation. Brownlee v. Hewitt, 1 Mo.App. 365; Griffith v. Eby, 12 Mo. 517; Dormitzer v. Greve, 3 Mo.App. 593.

V. The voluntary signing of a written instrument, after opportunity for examination, and then delivering it, raises the pres umption that the signer agreed to its contents, or if he signs without reading it, not being prevented by artifice or fraud. Ort v. Fowler, 31 Kansas 478; Shirts v. Overjohn, 60 Mo. 305. And it is no defence between the original parties, if the paper proves to be a contract different from what he supposed he was signing. Ins. Co. v. Hodgkins, 66 Me. 109; Koenig v. Life Association, North America, 4 Central Law Journal 381.

VI. The terms of the written contract can neither be varied, altered, added to, or subtracted from by parol evidence. Jolliffe v. Collins, 21 Mo. 338; Pearson v. Pearson, 69 Mo. 550; Chrisman v. Hodges, 75 Mo. 413.

VII. Plaintiff's refused instructions should have been given, and those given for defendants refused. The motion for new trial and in arrest of judgment should have been sustained.

CROSBY, RUSK & CRAIG, for the respondents.

I. The instructions refused to plaintiffs were properly refused. The instructions asked by defendant were properly given, as declaratory of the law, applicable to a theory of the case which there was evidence to support, namely, that the defendants looking to and relying upon the agents of plaintiffs for information material to the contract, and peculiarly within the knowledge of plaintiffs and their agents, were misinformed by said agents, and thereby induced to sign a paper which they would not have signed but for such fraudulent misrepres entation. Caldwell v. Henry, 76 Mo. 260; 87 N.Y. 561,; 83 N.Y. 436; McAleer v. Horsey, 35 Md. 439. The admission of parol testimony in regard to such misre presentations was proper. Liebke v. Methudy, 14 Mo.App. 65.

II. Plaintiffs by their agents deceived defendants, not only by falsely stating that the paper signed was simply an order giving authority to go upon the building for the purpose of putting up the rods, but chiefly by mis-stating the cost of the rods, which defendants testify they did not care to have erected, their object, and the chief inducement to the contract, being the trade promised them by plaintiffs, for which they were willing to pay the amount that they were told the rods would cost. They would not have ordered the rods had they known they were to cost more than sixty dollars, a fact within the peculiar knowledge of plaintiffs. Goodwin v. Home Co., N.H. 485.

ELLISON J.

This action was commenced in the Buchanan circuit court to recover on a contract for the erection of lightning rods on respondents' buildings. The answer admitted the signing of the contract, but charged it was procured by fraud of plaintiffs' agents, in that, among other things, said agents represented it merely " to be an order for the use of plaintiffs' foreman in putting up said rods, to inform him where said houses were and how and in what manner and style to put the rods thereon; that defendants, who were deceived by said statements and representations in regard to said order, were induced thereby, at the request of plaintiffs, to sign the same without knowing or suspecting that it was anything more than such order."

That plaintiffs' agents further stated " that in consideration of the fact that defendants' said buildings were in a good location to advertise their system of lightning rods, and that they were anxious to put a sample job on them if defendants would permit them to advertise their rods by rodding said building; they would make a great reduction from the regular price, and would guarantee that the job should not cost defendants more than sixty dollars," etc. There was evidence tending to support the plaintiffs' petition. A written contract was introduced, without objection from defendants, though it does not appear to be in some essential particulars the one declared on in the petition. On part of defendants there was likewise evidence tending to support their answer.

At the close of the testimony plaintiffs prayed the court to give the jury the following instructions, to-wit:

" 1. The plaintiffs are entitled to a verdict for the amount sued for in this case, unless the jury find from the evidence that defendants' signatures to the contract read in evidence, was procured through some fraudulent representation, made by the agents of plaintiffs, in regard to the cost of the work and materials to be furnished and erected, and any mere guess of said agents as to the cost when the real cost might have been ascertained by computation from data within reach of the defendants, does not constitute a fraud on the part of such agents."

" 2. It is admitted in the answer in this case that the defendants signed the contract read in evidence, and they are bound by the terms thereof, unless it is shown by the evidence that defendants' signatures thereto, were procured by some fraud on the part of plaintiffs or their agents."

" 3. Any statement made by plaintiffs' agents to the effect that the cost of rodding defendants' building would not exceed the sum of sixty dollars, constitutes no defence to this case, when the price per foot and per ball and point was given, and the size, height of the building, and the number of points and balls and feet of rod required, were equally within the knowledge of defendants and plaintiffs' agents, or that such knowledge was within reach of defendants by the reasonable exercise of the faculties of their minds and the application of the powers of vision."

" 4. It is no defence to this case that plaintiffs' agents made a false statement to defendants in regard to the probable cost of the work to be done, if the defendants knew such statements to be false, or could have ascertained that fact by the reasonable exercise of the faculties of their minds and powers of vision."

" 5. In any event the plaintiffs are entitled to a judgment against the defendants for the sum of sixty dollars."

" 6. If the jury find for plaintiffs th

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