Gash v. Mansfield

• Decision Date: 03 March 1930
• Docket Number: No. 16800.,16800.
• Court: Missouri Court of Appeals
• Parties: GASH v. MANSFIELD et al.

28 S.W.2d 127

GASH v. MANSFIELD et al.

No. 16800.

Kansas City Court of Appeals. Missouri.

March 3, 1930.

Rehearing Denied May 6, 1930.

Appeal from Circuit Court, Jackson County; Brown Harris, Judge.

Action by Sanford Gash against W. J. Mansfield and another Judgment for plaintiff, and defendants appeal.

Reversed and remanded.

Burns & White, of Kansas City, for appellants.

Manard & Schwimmer and Carroll W. Berry, all of Kansas City, for respondent.

BOYER, C.

Plaintiff below sued defendants Mansfield and Mansfield Company, a corporation, in a justice court in Jackson county, to recover $300. Upon appeal and trial anew in the circuit court, plaintiff had a verdict and judgment against both defendants for the sum demanded, from which defendants duly appealed.

One of the principal points in controversy is over the question as to the nature and character of the cause of action upon which plaintiff sued, and because of that a copy of the petition is set out as follows:

"Plaintiff further states that defendant W. J. Mansfield, acting in behalf of himself and as trustee and as agent for the Mansfield Company, and defendants William Ettinger and George Lansberry, acting in behalf of themselves and as agents for W. J. Mansfield and the Mansfield Company, being desirous of selling plaintiff certain property located in Section One, Township Five North, Range Nine East, in the County of Scott, State of Mississippi, did, with intent to deceive and defraud plaintiff, falsely represent to plaintiff that the above mentioned property was some of the best land that could be obtained in the State of Mississippi; that it was wonderful land for the growing of pecans; that much money could be made thereon by growing pecans without a chance of loss; that said property was developed by defendant W. J. Mansfield for the purpose of raising pecans; that said property was worth $100.00 an acre; that title to said property was clear and unencumered, except for a contract held by a lumber company, the name of which company being known to defendants, but not to plaintiff, which contract was only to allow said lumber company the right to cut away the timber on said land and that said contract would soon expire. Plaintiff, relying upon said representations, purchased said property and paid to said defendants therefor, the sum of three hundred dollars ($300.00).

"Plaintiff further states that in truth and in fact and as defendants then well knew, said representations were false and that said property was then and is now worthless to the plaintiff, and that said sums of money paid to defendants are lost to the plaintiff.

"Wherefore, the premises considered, the plaintiff prays judgment in the sum of three hundred dollars ($300.00), and for his costs herein incurred and expended."

The evidence on behalf of plaintiff tended to show that defendant Mansfield owned a tract of 3,520 acres of land in various sections in Scott county, Miss.; that he carried title in the name of one Connell; that he proposed to sell said lands in small tracts of 40 acres or more under contracts calling for a down payment and for installment payments thereafter; that one Richards and others were engaged by Mansfield as agents to solicit and to procure prospective purchasers for said lands; that a pamphlet or circular had been issued by the Mansfield Company in which numerous advantages of the state of Mississippi were claimed and set forth; that it was the opportunity state of the southland, its advantages for climate and health, and, in particular, the virtue of pecans and the desirability of producing them from an investment standpoint; that it was better than life insurance; and an invitation to solicit further information about Mississippi, "the land of real living" and "where facts outstrip fancies." There was also evidence that a letter addressed, "To Whom this May be Presented," under the letterhead of Mansfield Land & Loan Company and signed by Wilber J. Mansfield, was circulated and used as a means of disseminating information and obtaining purchasers. In this letter the purported writer states that he has invited some of his closest and dearest friends to join him in a proposition in Mississippi of which he is trustee; that he expected in the future to acquire large tracts of this valuable land; that the next state which will eliminate inheritance tax will be Mississippi. Reference is made to the rapid increase of the price of land; that he had obtained information that the next state that would be developed by northern capital and energy would be Mississippi; that the slogan will be: "Go south, young man, go south." That there is enough room south of the Mason and Dixon line for at least 25,000,000 people, and for this and various other reasons stated that he was now developing the land that he was presenting; that the land would be cheap at $100 per acre; that this is his best judgment, because land which will produce what these lands will produce with intelligent handling is worth $500 per acre. "I say this after a thorough investigation." That any person that acquires 40 acres of this land has in his judgment what is equal to a life insurance contract for $10,000; that the contract offered made provision that in case of death "we give a guarantee deed free from any and all further payments." And that to his mind with such a contract, "we are doing the grandest and noblest thing ever undertaken for the purchaser that was ever attempted in the sale of any land. No chance for loss." Other opportunities to be grasped are dwelt upon.

Defendant Mansfield claims he never wrote such a letter nor authorized it, but that the agent Richards dictated the letter and circulated it, and that defendant Mansfield upon learning of it made immediate effort to recover and to recall it.

It appears that plaintiff was an acquaintance of the agent Richards; that Richards was interested to the extent of his compensation, which was 50 cents per acre on the first 40 acres and $2 or $2.50 per acre on the second 40 sold; that Richards in the latter part of 1925, who had not seen the land at that time, called upon plaintiff and sought to interest him in the purchase of some of the land; Richards had previously contracted to buy 40 acres himself, and in detailing what Mansfield said to him, over the objection of defendant, the witness stated that Mansfield said that they had bought a tract of land in Mississippi; that it was very valuable; that he first intended to keep it for himself and his friends, but decided he would have some more people come in; that he would not let them have more than 40 acres; that he would like for Richards to have 40 acres; that it was excellent land; that Richards ought to have 40 acres for his babies, and this land planted with pecan trees would increase in value at least $100 per acre a year, and that he was going to put out 20 or 40 acres for his own babies that fall, and he expected it to put them through school and make him independent for life. That was the first time Richards had seen Mansfield, and he bought 40 acres. When he called on plaintiff, he represented to him that he had met Mansfield and that he seemed to be a reliable man; that the tract of land had been explained to him; that he bought 40 acres and that it seemed to him that it would be a good thing for plaintiff and suggested that he see Mr. Mansfield himself; that he represented to plaintiff that they could not lose money on it for the reason that Mansfield was going to make a garden spot out of it; that he was going to buy 50,000 acres of land not far from it; that they were going to run an excursion on the big 50,000-acre tract and take people down and show them what a beautiful spot it was, and that if he bought 40 acres, "he would be opening on the ground floor and your property and mine will increase in value accordingly." Richards further testified that at the time he talked to plaintiff he had none of the literature including the pamphlet and letter referred to, but later testified that he showed plaintiff an exact duplicate or copy of the letter and presumes that he read it.

Plaintiff himself testified that Richards informed him that the land was very productive, especially for fruit and the growing of pecans; that he afterwards talked with Mansfield, who stated to him that it was a very wonderful opportunity and that this tract of land was partially developed and was very good soil; was very well adapted for the growing of pecans; that it was cut over timber land; that it was going to be sold in 40-acre tracts because they felt that the small investor, when he saw the possibilities of the land, would be glad to make his home there and would further develop it, and that he intended acquiring large acreages of land and was going to use this particular spot as a show ground; that he might sell the other land; that a part of the land was developed, "and that they were going to have at least 20 acres of 5 acres each developed and that this would be, in a way, a sort of a lottery; that the ones who owned the various 40-acre tracts would get a chance to draw in this and if you were lucky, you would have five acres of your forty developed free of charge."

Witness further testified that he had read the circular letter and that practically the same thing had been stated to him verbally, and that he saw the pamphlet prior to his purchase. Plaintiff agreed with Richards to purchase 40 acres and later agreed to purchase 40 acres more. He relied upon the truth of statements made to him, but did not believe the land was worth $100 per acre. A sample of the contract entered into was offered in evidence. One paragraph of which reads: "The second party herein agrees and states that ____ has made investigation of the real estate hereinbefore described and is not relying or depending on the representations of the first party, or any of his agents, as to quality of value of...