Friend v. Jones

• Decision Date: 01 May 1916
• Docket Number: No. 11707.,11707.
• Citation: 185 S.W. 1159
• Parties: FRIEND v. JONES.
• Court: Missouri Court of Appeals

185 S.W. 1159

FRIEND v. JONES.

No. 11707.

Kansas City Court of Appeals. Missouri.

May 1, 1916.

Appeal from Circuit Court, Andrew County; A. D. Burnes, Judge.

"Not to be officially published."

Action by A. T. Friend against James Jones. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Hunt, Bailey & Hunt, of Rockport, and Booher & Williams, of Savannah, for appellant. N. J. Craig, of Mansfield, and Perry T. Allen, of Springfield, for respondent.

ELLISON, P. J.

This is an action for the purchase price of 125 hogs sold by plaintiff to defendant. The judgment in the trial court was for the plaintiff.

Plaintiff resided in the southern part of the state near the Arkansas line, and defendant in Atchison county near 400 miles north. Defendant had purchased hogs of plaintiff on another occasion which plaintiff had bought from farmers in Arkansas. They were good and healthy and in every way suitable for running with defendant's cattle, that being the object he had in view in both purchases. The evidence in defendant's behalf tended to show that the hogs in the present controversy were warranted to be sound, when in fact they were so badly infected with cholera that they began to die while en route, several dying on the way from the railway station out to defendant's farm, and nearly all of them died shortly afterwards. The evidence for defendant further tended to show that one reason for making Arkansas hogs more desirable than those in Missouri was that if purchased in the former state, they would have to be inspected before entering into the latter state.

One Gage figures largely in the case, and there was evidence tending to show that he was plaintiff's agent in the sale; and defendant's effort was to show that he assisted in perpetrating what defendant terms the fraud practiced upon him in the sale.

In defense of defendant's accusations, plaintiff introduced evidence tending to show that the hogs were healthy and not infected when he sold them, and that if they died from cholera they took that disease en route or after arrival on defendant's farm. He also introduced testimony that defendant had opportunity to stop the ravages of the disease and avoid all damage by injecting an antidotal serum which experts testified would have saved the hogs, and that he refused to take that precaution, although advised to do so before the hogs were shipped. Plaintiff also introduced evidence tending to show that Gage was defendant's agent and not his. The foregoing statement will be sufficient upon which to determine the errors defendant insists were committed to his prejudice.

Instruction No. 1 for plaintiff directs the jury that they must believe that defendant relied solely on plaintiff's fraudulent representations as to the hogs. That is error, for the law is that the fraudulent effort need not be the sole cause of a contract entered into by the defrauded party. It is enough if it was an effective cause along with other considerations. Cahn v. Reid, 18 Mo. App. 115, 131-135; Saunders v. McClintock, 46 Mo. App. 216; Burnham v. Ellmore, 66 Mo. App. 617; Hardwood Lumber Co. v. Dent, 121 Mo. App. 108, 114, 98 S. W. 814.

Another part of that instruction, and also instruction No. 2, required the jury to believe that plaintiff knew at the time he made the representations that they were false. He may not have known they were false; yet if he made them not knowing they were true, he was guilty of fraud. Buford v. Caldwell, 3 Mo. 477; Dunn v. White, 63 Mo. 181; Caldwell v. Henry, 76 Mo. 254; Pomeroy v. Benton, 57 Mo. 531.

Instruction No. 3 is erroneous in that it declares to the jury that if defendant authorized Gage to select the hogs, and that Gage did so, then from that fact alone Gage was defendant's agent. That is misleading. In this case each party contends that Gage was the agent of the other. A vendee about to purchase certain personal property warranted to be sound may intrust the...