Flack v. Wahl
| Decision Date | 06 February 1917 |
| Citation | 193 S.W. 56,197 Mo.App. 10 |
| Parties | CHARLES D. FLACK et al., Respondents, v. G. A. WAHL, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. William T. Jones Judge.
AFFIRMED (upon condition).
John Cashman for appellant.
(1) Defendant's demurrer to the evidence should have been sustained. Before one is entitled to recover in an action of fraud, he must show that false representations were made by defendant; that he knew them to be false when made, or they were made as of his knowledge when he had no such knowledge and plaintiffs must have relied on the representations as made, and be misled to their detriment. Where, as here, the parties investigate for themselves, with every opportunity to learn all the facts, and even refuse to trust their own agents and secure the services of an expert to see after their interests, there can be no recovery, and neither law nor equity will afford relief. Buford v. Caldwell, 3 Mo. 479; Glasscock v. Minor, 11 Mo. 655; Morse v. Rothbone, 49 Mo. 91; Dunn v. White, 63 Mo 181; Bradford v. Wright, 145 Mo.App. 623; Mires v. Summerville, 85 Mo.App. 186; Cahn v. Reid, 18 Mo.App. 127; Judd v. Walker, 215 Mo. 337; Bank v. Trust Co., 179 Mo. 649; Clinkenbeard v. Weatherman 157 Mo. 105. (2) It was reversible error to permit plaintiffs to introduce evidence of the alleged mental incapacity of plaintiff Charles D. Flack. There was no such issue submitted by the pleadings. Banking Co. v. Loomis, 140 Mo.App. 62; Caldwell v. Reed, 198 Mo. 359; Wells v. Mutual Benefit Assn., 126 Mo. 637; Rhoades v. Fuller, 139 Mo. 179; Jamison v. Culligan, 151 Mo. 416; Blunt v. Spatt, 113 Mo. 48; Makenzie v. Donnell, 151 Mo. 431. (3) It was gross error for the court to overrule and disregard defendant's affidavit of surprise upon the court admitting evidence as to the mental incapacity of the plaintiff, Charles D. Flack. There was no such issue made by the pleadings. The court should have compelled plaintiffs to make such amendment to their petition as would authorize this proof and then permit the case either to be continued or postponed, so as to give defendant a fair and reasonable opportunity to obtain proof to overthrow that evidence. Banking Co. v. Loomis, 140-Mo. App. 62; Caldwell v. Reed, 198 Mo. 359; Wells v. Mutual Benefit Assn., 126 Mo. 637; Rhoades v. Fuller, 139 Mo. 179; Jamison v. Culligan, 151 Mo. 416; Blunt v. Spatt, 113 Mo. 48; Makenzie v. Donnell, 151 Mo. 431. (4) The plaintiffs, testifying that they could read and write, and understood the English language well, it was gross error to permit them both to testify that they did not read the deed. There is no pretense that anything was done to prevent them from reading it, and they were represented by an expert real estate man of their own selection in going over the papers at the time the trade was closed. Under such conditions the evidence should have been excluded. Davidson v. Manson, 146 Mo. 619; Hendricks v. Vision, 118 Mo.App. 421; Thompson v. Langan, 154 S.W. 808; Donnelly v. Trust Co., 239 Mo. 388; Anderson v. Drug Co., 149 Mo.App. 573; Bradford v. Wright, 145 Mo.App. 631; Breeders Co. v. Wright, 134 Mo.App. 717. (5) It constituted reversible error to permit plaintiffs to introduce evidence of the value of their farm. This issue was forced into the case by counsel for plaintiffs in his opening statement to the jury. The measure of damages was the difference between the alleged represented value, and alleged and represented income of the cottages and their then true value. Boyd v. Wahl, 175 Mo.App. 181; Adams v. Barber, 157 Mo.App. 370; Boyce v. Gingrich, 154 Mo.App. 198; Warner v. Winfrey, 142 Mo.App. 298; Hawman v. McLean, 139 Mo.App. 429; Kendrick v. Ryus, 225 Mo. 150. (6) It was error to permit the witness, Kingsland, to testify as to the value of the cottages. It was not based on the sworn evidence testimony of any person nor upon any record or conceded fact, but only upon a verbal opinion of a third person, and as purely hearsay. Landers v. Railroad, 134 Mo.App. 80. (7) It was error to admit the contract in evidence. All matters preceding the execution and delivery of the deed were merged in the deed. Davidson v. Manson, 146 Mo. 619; Hendricks v. Vision, 118 Mo.App. 421. (8) Defendant's instruction No. 1 should have been given. The rule in cases of alleged fraud has always been that if the conduct and dealings of the party charged with fraud comports as well with honest and fair dealing as with dishonest and unfair dealing, then he is not liable; and, further, if from the evidence the jury have reasonable doubt as to the fraud charged, that doubt should be resolved in favor of defendant. Unless the facts are entirely irreconcilable with the hypothesis of honesty and good faith this instruction is always proper. Dallam v. Renshaw, 26 Mo. 544; Reimbolds v. Parr, 51 Mo. 592; Paige v. Dixon, 59 Mo. 47; Chapman v. McIlwrath, 77 Mo. 44; Webb v. Darby, 94 Mo. 621; Robinson v. Dryden, 118 Mo. 534; State ex rel. v. Shelton, 249 Mo. 698; Steinwender v. Creath, 44 Mo.App. 356; Shinnabarger v. Shelton, 41 Mo.App. 148. The court erred in refusing defendant's instructions Nos. 2, 3, 4, 5, 6, 7, 8, 9 and 10. These instructions declared the law as applicable to the facts in this case as defined by the rulings of the appellate courts of this State for half a century. It is not necessary to cite authorities. (9) Plaintiffs' first instruction is fatally defective in two particulars. In that, being one undertaking to cover the whole case. it left out the element of defendant's honest belief in the truth of the things he is charged to have represented to plaintiffs. This instruction, when it comes to the measure of damages, is fatally defective. It does not confine or refer the jury to the evidence in fixing the market value. They were not directed to find the difference in value as shown by the evidence. Is it necessary to cite authority on this point? Plaintiffs' instruction No. 2 is radically wrong. It assumes that representations were made. The "if any," in the third line of the instruction is destroyed by the word "further" at the end of the fifth line. The word "further" assumes that the jury has already found that representations had been made. The instruction is further defective in that it creates a liability, whether fraudulently or innocently made. And still further, the representations must have been such as to mislead a person of ordinary understanding in exercising ordinary care to protect his own interests. This instruction is wrong clear through. Plaintiffs' instruction No. 3 is bad in that it also disregards defendant's evidence as to his belief in the truth of what he said. (10) There is a misjoinder of parties plaintiff; the suit is upon a joint claim of plaintiffs as joint owners of the land described in the petition. The evidence shows that the land belonged entirely to the plaintiff, Meda S. Flack.
R. P. & C. B. Williams for respondents.
(1) In an action for fraud and deceit in inducing a sale or exchange the plaintiff has an election of remedies. He may rescind the contract upon discovery of the fraud and sue to set aside the sale, or he may affirm the contract and sue for damages for the fraud and deceit at any time within the period of the Statute of Limitations. Brown v. Lead & Zinc, Co., 231 Mo. 166; Adams v. Barber, 157 Mo.App. 370; 20 Cyc., p. 94. (2) In an action for fraud and deceit in inducing a contract of exchange of properties, the plaintiff's cause of action is made complete when he proves that the defendant made false representations with knowledge of their falsity, or made the same as of his own knowledge without knowing whether they were true or false reliance by the plaintiff on the representations, and damages; and the measure of such damages is the difference between the actual and the represented value of the property received by plaintiff in such exchange. Judd v. Walker, 215 Mo. 312; Brigham v. Judy, 186 S.W. (Mo. App.) 15; Adams v. Barber, 157 Mo.App. 370; Kendrick v. Ryus, 225 Mo. 150; Stonemetz v. Head, 248 Mo. 243; Howman v. McLean, 139 Mo.App. 429; Boyd v. G. A. Wahl, 175 Mo.App. 181; Newman v. Friedman, 156 Mo.App. 142; Boyce v. Gingrich, 198 Mo.App. 154; Zahnder v. Stark, 248 Mo. 39; Macbeth v. Craddock, 28 Mo.App. 380; Shinnabarger v. Shelton, 41 Mo.App. 147; Cottrill v. Krum, 100 Mo. 397; Bank v. Richmond, 235 Mo. 543. (3) The plaintiffs had a right to rely upon the representations of the defendant with respect to the amount of rent that was being received for the property, and the amount of the mortgages on the same, and were not required to make any independent investigation. Judd v. Walker, 215 Mo. 312; Bank v. Richmond, 235 Mo. 543; Cottrill v. Krum, 100 Mo. 397; Adams v. Barber, 157 Mo.App. 370. (4) Evidence that the plaintiff was weak-minded was admissible for the purpose of showing plaintiff's susceptibility to the representations made by the defendant. It was not necessary to plead this fact but it was admissible under the allegation of reliance. Bloomer v. Gray, 10 Ind.App. 326, 37 N.E. 819; Porter v. United Rys. Co., 165 Mo.App. 619; Ingalls v. Miller, 121 Ind. 188; 22 N.E. 995; Gillespie v. Keator, 56 F. 203, 5 C. C. A. 474; Neuman v. Friedman, 156 Mo.App. 142; Jacobson v. Whitner, 138 Wis. 434; 20 Cyc., p. 117. (5) The delay on the part of the plaintiffs in bringing the suit so long as they are within the Statute of Limitations does not affect their right to recover in this case; they were not required to complain or make demand and neither the failure to do which, or the delay, waived any rights that they had to sue for the fraud. Brown v. Lead and Zinc Co., 231 Mo. 166; Wagner v. Herkimer, 167 Mich. 587; 20 Cyc., page 94; Cottrill v. Krum, 100 Mo. 397. (6) ...
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