Currey v. Harden

• Decision Date: 28 November 1904
• Citation: 83 S.W. 770,109 Mo.App. 678
• Parties: H. W. CURREY, Appellant, v. M. L. HARDEN et al., Respondents
• Court: Kansas Court of Appeals

83 S.W. 770

109 Mo.App. 678

H. W. CURREY, Appellant, v. M. L. HARDEN et al., Respondents

Court of Appeals of Missouri, Kansas City

November 28, 1904

Appeal from Jasper Circuit Court.--Hon. Hugh Dabbs, Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and cause remanded.

H. W Currey and R. W. Coleman for appellant.

(1) The suit being for the recovery of the purchase price of personal property, the defendants having taken and retained the possession of the property and never having offered to return same, and neither their title nor possession ever having been disturbed or challenged by any third party, the doctrine of estoppel precludes them from pleading or proving that Berry had no title. Matheny v. Mason, 73 Mo. 677; Pushing v. Cranfield, 70 Mo. 140; Pullian v Burlingame, 81 Mo. 118; Morrison v. Edgar, 16 Mo. 411; Crumb v. Wright, 97 Mo. 13; Wilcoxon v Osborn, 77 Mo. 621; Dwyer v. Rohn, 99 Mo.App. 132. To support the plea of total failure of consideration the evidence must show that the defendant got neither the title to, nor the possession of, the sold articles. Pharris v. Surrett, 54 Mo.App. 9. (2) It being admitted that the consideration for the notes sued on was $ 150 cash, and interest in mining machinery, and the right to mine lots under the posted rules and regulations of the Center Creek Mining Company, and the defendants having admitted that they received and appropriated to their own use the $ 150 cash and the mining machinery, there can be no total failure of consideration, and the two instructions given at the instance of the defendant are grossly erroneous. Overstreet v. Beasley, 60 Mo.App. 315; Brown v. Welden, 27 Mo.App. 251; s. c., 99 Mo. 564; Barr v. Baker, 9 Mo. 949; Brockus v. Schillings, 52 Mo.App. 73; Murphy v. Gray, 37 Mo. 535; Compton v. Parsons, 76 Mo. 455; Armstrong v. Tobacco Co., 41 Mo.App. 245; Implement Co. v. Leonard, 40 Mo.App. 254; 2 Mechem on Sales, sec. 832; Matheny v. Mason, 73 Mo. 680; McGiffin v. Baird, 62 N.Y. 331; Burt v. Deney, 40 N.Y. 283. (3) A mining license is property. Sheppard v. Drake, 61 Mo.App. 134; Boon v. Stover, 66 Mo. 450. (4) The right to mine the lots under the posted rules of the Center Creek Company is acquired by doing the things specified by the statutes and it would be contrary to the policy of the law to permit the Center Creek Mining Company to add to the requirements which the statutes deem sufficient to give the defendant. R. S. 1899, sec. 8766; Shoe Co. v. Knapp, 63 Kan. 698; State v. Benn, 95 Mo.App. 516; Turley v. Edwards, 18 Mo.App. 676; Karnes v. Ins. Co., 144 Mo. 413; 80 Mo.App. 357; 40 Mo. 67; 52 Mo. 399.

McAntire & Scott for respondents.

(1) Under the law as applied to the facts, the judgment should have been for respondents under such circumstances, even though the case was tried on the wrong theory and the record shows error, the judgment should be affirmed. Jones v. Brownlee, 161 Mo. 258. (2) The making of a representation that one is registered upon the register books of a mining company where another pays his money or gives him a note, relying upon such representation, such representation is certainly material, and if one knowingly makes a material misrepresentation, or makes it without knowing its truth or falsity, he is liable for the injury to the party relying thereon. Chase v. Rusk, 90 Mo.App. 25; Hall v. Goodnight, 138 Mo. 676; Herman v. Hall, 140 Mo. 270; Bank v. Byers, 139 Mo. 627. (3) Mining rules and regulations of mining companies have been sustained so often similar to the ones introduced in evidence that it is presumption on the part of the appellant to now attack them. Chenoweth v. Mining Co., 74 Mo. 173; Arnold v. Bennett, 92 Mo.App. 156; Rochester v. Gates City, 86 Mo.App. 447; Low v. Lead Co., 89 Mo.App. 680. (4) The plea of defendants was a total failure of consideration and fraud in obtaining signatures. There is no difference in the right to make such defense as to either personal or real property. Williams v. Baker, 100 Mo.App. 288; Brown v. Weldon, 99 Mo.App. 564; Miles v. Withers, 76 Mo.App. 87; Stewart v. Miles, 80 Mo.App. 24; Schoenberg v. Loker, 88 Mo.App. 387.

OPINION

ELLISON, J.

This action was brought to recover the amount of two non-negotiable promissory notes executed by defendants to T. W. Berry and by him assigned to Kester Gorrell who transferred them to plaintiff. The judgment in the trial court was for the defendants.

Defendants' answer set up the defense of failure of consideration. The answer likewise alleged that the notes were obtained by Berry by false and fraudulent representations. But such allegations merely related to the subject-matter of the consideration moving defendants to execute the notes. No damages general, special or consequential by way of counterclaim or otherwise were set up in the answer. The consideration of the notes was shown to be $ 150 in money, some mining tools and a transfer of a mining right or license to mine ore on the Center creek company's mining ground in Jasper county. Defendants got the money and property of the plaintiff, and yet the verdict and judgment were against plaintiff in toto.

The judgment can not stand. If it be conceded that the transfer of the lease or right to mine failed for lack of title in Berry, yet that was only a part of the consideration for the notes in suit, and there should not have been any instructions for defendants on the hypothesis of a total failure. [Overstreet v. Beasley, 60 Mo.App. 315.]

The only difficulty in the case relates to the transfer of the license or lease. Defendants entered into possession and operated the mines under the terms of the lease for a considerable period of time. But it seems that under the statute (section 8766, Revised Statutes 1899) mining companies, such as the Center creek company, may make rules and regulations concerning mines and the right to operate them. That among the rules of the Center creek company was one requiring all entering upon the same for the purpose of mining to register by signing on a book of registry. The statute aforesaid does not, itself, require a registry. The statute is that, all persons mining on such lands after the posting of the rules by the owner "shall be deemed to have agreed to and accepted the terms thereof, and shall, together with such owner or lessee, be bound thereby, and upon failure or refusal to comply with the terms, conditions and requirements of such...