Conley v. Kaney

• Decision Date: 14 July 1952
• Docket Number: No. 42764,No. 1,42764,1
• Citation: 250 S.W.2d 350
• Parties: CONLEY v. KANEY
• Court: Missouri Supreme Court

Page 350

250 S.W.2d 350

CONLEY v. KANEY.

No. 42764.

Supreme Court of Missouri, Division No. 1.

July 14, 1952.

Clay C. Rogers, Lyman Field, Roger Tilbury, Rogers, Field & Gentry, Kansas City, for appellant.

William E. Kemp, Thomas J. Wheatley, Kansas City, for respondent. Kemp, Koontz, Clagett & Norquist, Kansas City, of counsel.

COIL, Commissioner.

Plaintiff-appellant purchased 744 steers and heifers from defendant-respondent, pursuant to an oral agreement. Plaintiff sought actual damages of approximately $20,000 and punitive damages in a like amount for an alleged loss he claimed to have sustained as a result of the averred fraud of defendant in misrepresenting the cattle. The jury found for defendant. Plaintiff appealed from the ensuing judgment. Two assignments of error are urged: one relating to the admission, and the other to the exclusion, of evidence.

Plaintiff and defendant both were long experienced in the business of buying and selling livestock, particularly cattle. Briefly, the controversy evidenced by this litigation was this: plaintiff contended, and his evidence tended to show, that in July 1948 defendant agreed to and did sell to him approximately 775 steers and heifers to be delivered on October 1948; that plaintiff bought on defendant's representation that the cattle were and would be 'choice' yearlings, sorted for quality, thin-fleshed, the heifers to weigh 500 to 525 and the steers 550 to 575 pounds each. Plaintiff agreed to and did pay $28.00 cwt. for the steers and $26.50 cwt. for the heifers. Seven hundred forty-four cattle were delivered, 354 steers and 390 heifers. Plaintiff claimed that none of the cattle had been sorted for quality; that they were not as represented in that some of the steers were not yearlings or were overweight, and that some of the heifers were not 'choice' or yearlings, or were overweight.

Defendant made various contentions but we need mention only those involved in a disposition of the evidence questions here presented. Defendant denied making the representation charged by plaintiff. He said he was assisting Mrs. A. W. Adams, administratrix of the estate of her deceased husband, Alexander Adams, in disposing of the herd of cattle and other livestock located on a ranch or ranches operated by Alexander Adams during his lifetime at Maple Hill and Plains, Kansas. The cattle were known as the XI herd. Mrs. Adams had arranged to sell all the livestock on the XI ranch to a third party who, in turn, wished, through defendant, to sell the yearlings from the herd at a price of $28 cwt. for the steers and $26.50 cwt. for the heifers. Plaintiff asked defendant if he knew where he could buy yearlings for fall delivery. Defendant replied that the Adams XI yearling heifers and steers were for sale and that they were 'an awful good bunch of yearlings.' Plaintiff replied, 'If they are XI cattle just buy them, they are good enough for me.' Defendant bought the cattle for plaintiff in accordance with their oral agreement which, defendant claimed, was embodied in a written agreement which defendant prepared for execution by the third-party seller (Mr. Senter) and plaintiff, which agreement was executed by Mr. Senter but not by plaintiff. This writing failed to include any of the alleged representations other than that the cattle were to be yearlings in that they were to be 'the yearlings' recently purchased by Mr. Senter from the Adams estate.

Defendant also contended that even if all the representations alleged by plaintiff to have been made were made, they were true.

This being a suit for fraud, the essential issues were whether the representations charged were made, whether they were false, whether material, whether, if made, defendant had knowledge of their falsity or was in ignorance of their truth, whether he made them intending that they should be acted on by plaintiff in the manner reasonably contemplated, whether plaintiff was ignorant of their falsity, his reliance on their truth, his right to rely thereon, and his consequent and proximate injury. Powers v. Shore, Mo.Sup., 248 S.W.2d 1, 5[2-4].

The trial court, over an objection by counsel for plaintiff, permitted nine witnesses to testify to the general good reputation of the XI herd for producing fine and choice cattle. We shall assume, without deciding, that plaintiff's objection was sufficient to preserve for review the question presented.

Plaintiff contends that the court erred in admitting this testimony for the reasons that: it was immaterial; the reputation of the herd was not confined to the neighborhood in which it was located; and the reputation of the herd had not been attacked. Plaintiff says that the issues dealt with specific yearlings, sold under specific representations, and that evidence of the general good reputation of the herd from which the specific yearlings came was not material or legally relevant.

It was plaintiff's contention that only a specified number of yearlings were to be sold and delivered in accordance with the oral arrangement with defendant; i. e., only those yearlings which, after having been sorted for quality, met the specifications which plaintiff claimed were part of the agreement. Defendant, however, contended that plaintiff agreed to purchase and did purchase all the yearlings from the Alexander Adams XI herd except 'unmerchantables.' Defendant categorically denied that he made the representations charged by plaintiff to have been made, including the representation that the yearlings were all to be 'choice.' ('Choice' is a trade term descriptive of highest quality cattle.) Defendant, to support his contention that he did not make such a representation, testified in effect that he not only made no such representation but that, on the contrary, plaintiff, when he heard that the yearlings available were the XI yearlings, stated in effect that that fact was all he needed to know and instructed defendant to go ahead and arrange for the purchase of those cattle. Thus, testimony that the XI herd was one of the top herds of commercial cattle in the southwest and bore an excellant reputation as a producer of fine, choice cattle was corroborative of defendant's contention that plaintiff did say that 'If they are XI cattle just buy them, they are good enough for me' which, in turn, was evidence in direct support of defendant's contention as to one of the essential issues, viz., that he did not make the representation charged. This testimony was, therefore, not only logically relevant, but was material to one of the essential issues in that it had a natural tendency to corroborate a fact proved by direct evidence or to increase the probability of an essentially relevant fact, viz., that defendant did not represent that all the yearlings would be choice. This testimony tended to add weight to defendant's testimony on one of the ultimate facts in issue. Luechtefeld v. Marglous, Mo.App., 151 S.W.2d 710, 714[5-7]; Chapman v. Metropolitan Life Ins. Co., Mo.App., 132 S.W.2d 1096, 1099. See also: Atwood v. Joyce, 109 Vt. 30, 32, 33, 192 A. 11, 12; Davis v. Randall, 85 Vt. 70, 81 A. 250, 251. Certainly a jury would be more likely to find that plaintiff did say 'If they are XI cattle just buy them, they are good enough for me', if there was evidence from which the jury could find that the herd from which the cattle came had a general, widespread reputation for producing fine commercial cattle; and, in turn, would be more likely to believe defendant's version of the arrangement and that defendant did not represent that all the cattle would be choice. True, plaintiff denied any knowledge of the XI herd or of its...