Dobson v. Winner

• Decision Date: 23 May 1887
• Parties: CHARLES L. DOBSON ET AL., Respondents, v. WILLARD E. WINNER, Appellant.
• Court: Kansas Court of Appeals

26 Mo.App. 329

CHARLES L. DOBSON ET AL., Respondents, v. WILLARD E. WINNER, Appellant.

Court of Appeals of Missouri, Kansas City.

May 23, 1887

APPEAL from Jackson Circuit Court, HON. TURNER A. GILL, Judge.

Affirmed.

The case is stated in the opinion.

LATHROP & SMITH and BRYANT & HOLMES, for the appellant.

I. The petition disclosed that the action is founded in tort. The gist of it is the alleged making of false and fraudulent representations. The representations are several in their nature and can give none other than a several action. These plaintiffs cannot sue jointly. The petition, therefore, states no cause of action. Baker v. Jewell, 6 Mass. 460, 461.

II. The petition discloses no partnership relation between plaintiffs in the transaction upon which the action is based. No claim is made in the petition that said transaction was a partnership matter between plaintiffs, or that the money sought to be recovered is partnership money. The petition shows no interest in common of plaintiffs in or to the fund sought to be recovered. Hence it is insufficient, whether the action be in tort or contract, or trover and conversion. If it were the latter then there can be no recovery at all under the petition, because the twelve hundred dollars in money is not specifically assigned. Sackett on Instructions to Juries, 405 and 406; Petit v Boujou, 1 Mo. 64.

III. The petition shows on its face that the representations complained of consisted in defendant representing to plaintiffs, that they had agreed to do a certain thing. It does not state that the representation of price paid was different from the sum actually paid. There was, therefore, no actionable representation made by defendant, and the petition is insufficient. Clark v. Ins. Co., 40 N.H. 233; Schoonbacker v. Kiddie, 12 Rep. 394.

IV. There is an entire failure of proof of the allegations set forth in the petition. The cause of action proved is not the one which would result from the facts stated in the petition, nor are the things proved by the evidence the allegations in said petition. The verdict should have been for the defendant. Rev. Stat., sects. 3511, 3702; Newham v. Kenton, 79 Mo. 382.

V. Plaintiffs could easily have ascertained the truth of such statement in the case at bar by inquiring from Green or Whitehead. They neglected to do so. They do not say that defendant did anything to dissuade them from making inquiry. They chose to trust to their own credulity and cannot be heard to complain. Tuck v. Downing, 76 Ill. 71, 84; Medbury v. Watson, 6 Met. 259, 260; Capehart v Mhoon, 5 Jones' Eq. 178, 182; Etheridge v Vernoy, 70 N.C. 724, 725; Saunders v Hatterman, 2 Iredell Law, 32, 34; Saunders v. Hatterman, 37 Am. Dec. 404, 405, and cases cited; Clark v. Edgar, 84 Mo. 106. The test is whether the deceitful means employed were, in themselves, calculated to impose upon a person exercising the ordinary prudence and circumspection which men usually bring to the management of their affairs. Fagan v. Newson, 1 Dev. [N. C.] Law, 21, 22; Capehart v. Mhoon, 5 Jones' Eq. [N. C.] 178, 182.

VI. The two instructions given for plaintiffs are predicated upon the doctrine of contract. They contain no reference to fraudulent representations of defendant. The allegations in the petition on which recovery is sought are in the nature of tort. The case, therefore, presents what our supreme court has termed, " the spectacle of declaring on one cause of action and recovering on another. It is not simply a question of variance, which will be disregarded unless proper exceptions are taken, but of the very essence, and goes to the foundation, of the action; such a cause of procedure is destructive of all certainty in pleading and cannot be tolerated." Newham v. Kenton, 79 Mo. 382, 385, 386; Harris v. Railroad, 37 Mo. 307, 309, 310; Ensworth v. Barton, 60 Mo. 511, 514; Clements v. Yates, 69 Mo. 623, 626; Duncan v. Fisher, 18 Mo. 403, 404, 405.

VII. The court should have given the instruction asked by defendant, in the nature of a demurrer to the evidence. Instruction numbered three asked by defendant presents the very issue upon which their petition rests. This is apparent. No citation of authorities is needed to prove that it should have been given. To prove that instructions numbered seven, eight, nine and fifteen asked by defendant, should have been given, we feel that we have already cited abundant authority under prior points in our brief, and which will readily be recognized.

KARNES & KRAUTHOFF and E. L. SCARRITT, for the respondents.

I. It is too late to raise, in this court, for the first time, the question that the action of plaintiffs is several, and not joint. It could only be raised, under our statute, by demurrer or answer; otherwise, it is waived. Rev. Stat., p. 602, sects. 3515, 3519.

II. The whole complaint is, that the defendant misrepresented the amount of the cash payment to be made by the plaintiffs, and not that he misrepresented the amount of the consideration.

III. The instructions, given at the instance of the respondents, told the jury, in substance, that, if the plaintiffs were original purchasers from the Kentucky parties, jointly with the appellant, and others, the amount actually paid to the owners should be taken as the basis of settlement between the parties to this suit, unless the jury believed, from the evidence, that it was agreed and understood that the respondents should pay at the rate of twenty-five thousand dollars, instead of the actual purchase price. Out of the numerous instructions asked by the appellant, the court gave three, which fully covered his theory of the case, and every theory that could be based upon the pleadings and evidence. All the instructions refused were either repetitions of, or included in, those given; or were upon theories totally at variance with the evidence of both parties.

IV. The naked fact that Dobson & Douglass paid to Winner that amount more than was due from them, if they were buying upon the same footing with Winner and Green, entitled plaintiffs to their money back, and, because they embodied in their petition the additional allegation that the statements of Winner, whereby he obtained the overplus, were false, and fraudulently made, does not change the character of the action, or require more proof on their part. Yet notwithstanding this, the instructions given on the part of the defendant required the proof, on the plaintiffs' part, that the representations were false and fraudulent; so that the defendant was protected, to the fullest extent, by the...