Halliwell Cement Co. v. Stewart
| Decision Date | 23 November 1903 |
| Citation | 77 S.W. 124,103 Mo.App. 182 |
| Parties | HALLIWELL CEMENT COMPANY, Appellant, v. JAMES A. STEWART, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. E. P. Gates, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
L. E Durham and Porterfield, Sawyer & Conrad for appellant.
(1) Defendant's counterclaim is an action for damages for fraudulent representations. He alleges (a) certain representations made by plaintiff, (b) that they were false (c) that plaintiff knew at the time he made them that said representations were false, (d) that he made them for the purpose of inducing plaintiff to buy a worthless cement and (e) that defendant relied upon said representations and bought the cement to his damage. These are the elements in an action for damages for fraudulent representations. Bank v. Byers, 139 Mo. 652; Owens v. Rector, 44 Mo 389; McBeth v. Craddock, 28 Mo.App. 380; Nauman v. Oberle, 90 Mo.App. 666. (2) The instruction is erroneous in that it fails to require the jury to find that plaintiff's president, when he made the said representations knew they were false, and that he made the said representations for the purpose of cheating and defrauding the defendant. These two elements being absent from the instruction it failed to declare the law. Jolliffe v. Collins, 21 Mo. 338; Peers v. Davis' Admrs., 29 Mo. 184; Owens v. Rector, 44 Mo. 389; Dulaney v. Rogers, 64 Mo. 204; Tootle v. Lysaght, 65 Mo.App. 139; Nauman v. Oberle, 90 Mo. 669. (3) Innocent representations made by one party to another, and acted upon by the other to his damage, can not be the subject of damages. Walsh v. Morse, 80 Mo. 568; Anderson v. McPike, 86 Mo. 300; Redpath Bros. v. Lawrence, 42 Mo.App. 111. (4) There can be no recovery in an action for fraudulent representations upon the findings only, (a) that the representations were made, (b) that they were false, (c) that the party to whom they were made relied, and acted, upon them. Parker v. Marquis, 64 Mo. 42; Green v. Worman, 83 Mo. App, 574, and the authorities cited last above. (5) "A litigant has a right to an instruction, placing before the jury in plain and direct terms, every legal phase of his case, which is justified by the evidence." Cahn v. Reid, 18 Mo.App. 131; Owens v. Rector, 44 Mo. 389; Mfg. Co. v. Mfg. Co., 42 Mo.App. 314, 315; Ridens v. Ridens, 29 Mo. 470. (6) "In order to make a representation a ground for an action of deceit or fraud, it must be shown that the representation was known to be false, and that it was made with an intent to deceive." Peers v. Davis' Admr's., 29 Mo. 189; Brookings v. Shinn, 25 Mo.App. 281.
Fyke Bros., Snider & Richardson for respondent.
(1) "The tendency of all modern cases is to enlarge the responsibility of the seller, and frequently to imply a warranty from acts and circumstances whenever relied upon by the buyer." Smithers v. Bircher, 2 Mo.App. 499; Hitchcock v. Baughan, 44 Mo.App. 42. (2) The facts alleged in the answer in legal effect pleads warranty by appellant that the cement was suitable for building sidewalks, and whether such warranty was express or implied is immaterial. Long Bros. v. Armsby Co., 43 Mo.App. 253; Biddle on Warranty in Sale of Chattel, secs. 283-291. (3) Any distinct assertion or affirmation of quality made by the owner assuring the negotiation for the sale of a chattel, which it may be supposed was intended to cause the sale, and was operative in causing it, will be regarded either as implying or constituting a warranty. If such affirmation were made in good faith, it is still a warranty; and if made with a knowledge of its falsity, it is a warranty, and it is also a fraud. Carter v. Block, 46 Mo. 384; Joplin Water Co. v. Bathe, 41 Mo.App. 285.
This is an action on a promissory note for balance due thereon. The note and balance claimed as unpaid were not denied by defendant. But he set up in his answer a counterclaim for damages by reason of plaintiff's fraud and deceit, alleging that the note was given for purchase of cement which was to be used in the construction of sidewalks for Kansas City, Missouri. That plaintiff in order to induce defendant to buy the cement, falsely and fraudulently represented to him that the cement was a good cement and fit for construction of sidewalks well knowing that it was not fit and that it would not pass inspection of the city inspector. That he relied upon such fraudulent representations as being true and believed they were true. That in truth they were not true and that the cement was wholly unfit and unsuitable, and that the sidewalk constructed therewith was rejected and he was compelled to take up and remove it, at a cost of $ 368; "so that defendant says by reason of the acts and representations of the plaintiff aforesaid, he has sustained damages in the sum of $ 647.60," for which he demanded judgment.
Defendant's counterclaim is a claim for damages based on fraudulent and false representations. In such case it is necessary to prove, among other things, that the representations were made intending that they should be acted on, that they were false and known to be false by the party making them and not known to be by the other party, but relied upon by him and acted upon on the...
To continue reading
Request your trial