Connecticut Mut. Life Ins. Co. v. Guseman

• Decision Date: 31 December 1914
• Docket Number: No. 1260.,1260.
• Citation: 172 S.W. 396,186 Mo. 236
• Parties: CONNECTICUT MUT. LIFE INS. CO. v. GUSEMAN.
• Court: Missouri Court of Appeals

172 S.W. 396

186 Mo. 236

CONNECTICUT MUT. LIFE INS. CO. v. GUSEMAN.

No. 1260.

Springfield Court of Appeals. Missouri.

December 31, 1914.

Rehearing Denied January 19, 1915.

VENDOR AND PURCHASER (§ 33) — RESCISSION BY PURCHASER.

In ejectment where defendant claimed to have purchased the premises from plaintiff's agent and asked to have the contract rescinded for fraud by the agent and for damages, a judgment awarding damages to the defendant reversed, with directions to enter judgment for the plaintiff.

Farrington, J., dissenting.

Appeal from Circuit Court, Stoddard County; W. S. C. Walker, Judge.

Ejectment by the Connecticut Mutual Life Insurance Company against William Guseman. Judgment for the plaintiff for possession of the land and for the defendant for damages, and plaintiff appeals. Reversed and remanded, with directions to enter judgment for plaintiff.

Wammack & Welborn, of Bloomfield, for appellant. Mozley & Woody, Fort & Green, and K. C. Spence, all of Bloomfield, for respondent.

ROBERTSON, P. J.

This is an action in ejectment. Defendant answered with a general denial and a plea of fraud and deceit in the sale of the land involved, 40 acres in Stoddard county, and asks judgment for damages in the sum of $551.50 which he sought to have declared a lien on the land with an injunction against plaintiff interfering with his possession until said sum was paid. The court and defendant, over plaintiff's objection, treated the defense in the nature of an action in equity; but, as defendant is entitled to no relief either in law or equity, plaintiff is not prejudiced on this point. The judge called a jury to pass on certain issues of fact. The jury responded to the interrogatories, after which judgment was entered for the plaintiff for the possession of the land, $100 damages, and finding the monthly value of the rents and profits of the land to be $5. The finding for defendant was that he had been damaged in the sum of $500.75, for which, less the $100, judgment was entered in his behalf. The plaintiff has appealed.

The plaintiff was the owner of many thousand acres of land in Stoddard county, which it acquired as the result of loans, and was endeavoring to sell it. It had spent large sums on building roads, residences, and encouraged the construction of extensive drainage systems, for which, of course, its land was taxed. In its efforts to dispose of this land it had printed for distribution advertising folders setting forth in fulsome language the advantages and possibilities of this locality. One E. R. Bartlett, a real estate dealer located at Springfield, Ill., and operating under the name of the Illinois & Texas Land Company, undertook the sale of the land here involved.

The plaintiff held a deed of trust on the land as a result of the sale to one Rich. Default having been made by Rich, the plaintiff was offering to sell the property. Bartlett called defendant's attention to it, who, with Bartlett, visited the land and afterwards entered into a contract under date of February 20, 1912, with the Illinois & Texas Land Company, to buy it for $2,000, paying $250 cash and the balance in deferred payments. The defendant understood that the title to the land was not vested in Bartlett or his company, and there was written on the back of the contract the following:

"By agreement $12 is to be allowed second party as a credit out of the $1,750 at the time of closing deal for his railroad fares paid at time of going to examine the land before purchasing.

"It is understood and agreed that the land herein is to be conveyed clear of all mortgage or liens except the $1,750 due from the second party, and in case of failure the first party to so convey within 30 days from date of payment of earnest money, then the second party may elect to have his $250 earnest money returned to him and cancel contract."

The defendant inquired of other parties about this land before buying. He was about 33 years of age, a farmer, and when he visited the land also examined several other tracts, but selected this one. He moved onto the land April 3, 1912, and later his attorney wrote Bartlett the following letter which defendant signed and delivered, as he testified, by "sending" it to Bartlett, but which Bartlett testified was handed to him by defendant August 7th:

                               "Dudley, Mo., July 23, 1912
                

"To the Illinois & Texas Land Company, E. R. Bartlett, President: You are hereby notified that I have canceled and do hereby cancel the contract entered into with you on the 20th day of February, 1912, for the purpose of the northwest quarter of the southwest quarter of section thirty-two (32) in township twenty-six (26) range nine (9), containing forty (40) acres, at fifty (50) dollars per acre a total of $2,000. $250 cash in earnest money. The balance of $1,750 payable in ten years. $175 the first January of each year and every year until paid in full, deferred payments to bear five per cent. per annum.

"Upon the execution of said contract written and signed in triplicate of which you have two copies, which said earnest money was duly paid on said February 20, 1912. At which time you undertook and agreed to convey said land or cause to be conveyed said land by good and sufficient warranty deed within thirty days from the date of payment of said earnest money, $250. And in failure to do so then I, the second party, might elect to have and received his said $250 earnest money, return to him and cancel the contract. Which said contract you have forfeited and have wholly failed to execute and perform on your part to the injury and damages of the said party of the second part in this: Party of the second part moved from the state of Illinois to take said land and carry out his contract in that behalf at a cost of $78.50, and has cleared three acres of land on said premises, reasonable worth $4.50 per acre and the rent for the present year making a total sum of $92. And deduct therefrom the rent of the cleared land on said premises, twenty acres at $2.50 per acre total $50, leaving a balance of $42 due this party of the second part in addition to said $250 earnest money and interest thereon at the rate of six per cent. per annum. All of which this party of the second part demands immediate payment. Party of the second part agrees to quit possession of said premises on or before the 31st day of December, 1912, and yield peaceable possession to party of the first part. Witness my signature on this the day and date first above written.

                                        "William Guseman."
                

After writing this letter, defendant continued to reside on the land, cleared some of it of timber, and continued to make improvements thereon, for the value of which he is seeking to recover in this case. He also, after his attempted forfeiture, sowed wheat on the land. Before this letter was written or delivered, defendant knew plaintiff was having some trouble in getting matters adjusted with Rich, but before this letter was written the plaintiff made and tendered a deed to defendant, which defendant was advised he could get upon executing the deed of trust for the deferred payments as provided for in the contract, with some slight variation as to payments to which defendant did not object. Under date of October 23, 1912, defendant wrote to a party offering to sell the land at $55 an acre, stating that by doing so he could save the prospective purchaser $300. The testimony of witnesses fixed the value of the land at the date of trial from $10 to $70 per acre. At the latter figure one witness testified that he bought land similar to that contracted for by defendant. Bartlett first negotiated with Rich for the purchase of the land who asked $42.50 per acre, and that was the price for which Bartlett was getting it from plaintiff. This land is located between two drainage ditches. Bartlett testified, and defendant did not deny it, that he offered defendant a profit of $2.50 an acre for the land, which defendant refused.

To relate all of the acts of fraud charged against plaintiff as the result of Bartlett's conduct would require too much space; but, conceding for the purpose of this opinion that plaintiff is responsible for all Bartlett did and said, we can give no clearer idea of the fraud charged than to quote from respondent's brief, wherein the matters relied on here are condensed thus:

"The testimony shows that appellant advertised its lands, of which the lands in controversy had been, and was a part, as the richest soil on earth, 20 to 80 feet deep and exhaustless in fertility; that it was supplied with pure water; that it was high, well-drained bottom-land, and, in fact, the cream of the continent; that it was the land of promise and fulfillment; that it was the land of big bargains and bigger crops; that the land produced two crops yearly, and sometimes more; that it was the best farm proposition ever offered to a farmer, renter, or investor; that it would yield yearly 15 to 25 per cent. profit in crops, and the like amount in advanced values, with no risk to the purchaser; that for every dollar the purchaser invested it would loan him three at 5 per cent. only, and guarantee his title; that the purchaser would thus be able to reap 25 to 40 per cent. profit on every $4, or better than 100 per cent. on his actual investment, and that if the purchaser was a home builder he could pay for his lands from the crops thereon; that the natural drainage of said land was unusually good, the water passing easily quickly down in case of heavy rainfall; that all the strata were sufficiently fine to bring up water by capillary attraction when it was needed; and that the climatic conditions, and pure water, made it truly a land of health, good alike for man, beast, and crops."

As to the alleged misrepresentation that the land was supplied with pure water, the following occurred in the trial, which is a specimen of the disposition that prevails...