Hargis v. Smith

• Decision Date: 30 June 1915
• Docket Number: No. 16801.,16801.
• Citation: 178 S.W. 72
• Parties: HARGIS et al. v. SMITH.
• Court: Missouri Supreme Court

178 S.W. 72

HARGIS et al. v. SMITH.

No. 16801.

Supreme Court of Missouri, Division No. 1.

June 30, 1915.

Appeal from Circuit Court, Putnam County; Geo. W. Wanamaker, Judge.

Action by Benjamin F. Hargis and others against Thomas E. Smith. Decree for defendant, and plaintiffs appeal. Affirmed.

James T. Burney, of Kansas City, for appellants. N. A. Franklin, of Unionville, and Campbell & Ellison, of Kirksville, for respondent.

BLAIR, J.

Plaintiffs appeal from a decree for defendant entered by the circuit court of Putnam county in a suit to enforce specific performance of a contract for the exchange of lands. No question is made upon the pleadings. The contract plaintiffs rely upon is dated March 12, 1907, and provided for the conveyance by plaintiffs to defendant, subject to a mortgage of $5,000, of 315 acres of Missouri river bottom land, 10 miles north of Kansas City, in Leavenworth and Wyandotte counties, Kan., and in consideration thereof defendant contracted to convey to plaintiffs 560 acres of land in Putnam county, Mo., and to give his note for $14,100, secured by deed of trust on the lands plaintiffs were to convey to him, and a 320-acre farm owned by defendant in Osborne county, Kan. Defendant's land was valued in the contract at $40 per acre, and that of plaintiffs' at $100 per acre. Soon after the contract was entered into, defendant concluded to pay in cash the balance of $14,100 he was to secure to plaintiffs by deed of trust under the contract, and in his efforts to secure the money discovered that the land he was to get from plaintiffs was not acceptable to money lenders as security because it was "overflow" lands. After an effort to buy his peace and avoid litigation, defendant refused to carry out the contract, assigning certain false representations

as grounds for his action. This suit was commenced May 23, 1907.

In the view we take of the case it is not necessary to discuss the questions concerning the sufficiency of the contract, description of the lands of defendant, the effect, if any, of Robinson's signing Ryan's name to the contract, the question of the sufficiency of plaintiffs' title, or the argument concerning the time of the completion and final delivery of plaintiffs' abstract. Both the statement of facts and discussion of legal questions will be confined to the false representations relied upon by defendant.

The land plaintiffs contracted to convey to defendant was in two tracts—290 acres in one and 20 acres in the other. The 20-acre tract was a little over a quarter of a mile from the other, and was that much nearer the bank of the river on the north. The whole is called "the Tough farm," plaintiffs having bought it from a man named Tough. The Tough farm had formerly belonged to one Kirkpatrick, together with other lands, the whole aggregating 800 acres or more, and being known as the Island Creek farm, separated from the mainland by Island creek, formerly a stream or bayou of considerable proportions, which latterly had filled up until it was merely a large slough, except in times of high water. In the spring of 1907, when the contract involved was signed, the Missouri river was about a half mile from the north end of plaintiffs' 290-acre tract, and a quarter of a mile or more nearer the 20-acre tract, but there was a bend in the river which brought it around in such fashion that the east line of the 290-acre tract was very near the river bank, some accretions having formed between that line and the river. The river was not washing or cutting on the east, but forming a sand bar, but on the north the current had been for years cutting away the land and washing its way directly toward plaintiffs' tracts. In the 4 or 5 years preceding the signing of the contract the river had progressed about a mile and a half in the direction of the Tough farm, and hundreds of acres, whole farms, of similar bottom lands had been washed away. The current was continuing this work of destruction at the time the contract was signed, and had been doing so during the time plaintiffs had owned the land, about one year.

There is dome dispute about the degree to which the Tough farm was subject to overflow. It is clear that in 1906 there was no high water in the Missouri, and that the land was almost free from overflow, and that a good crop was raised upon it. It is also clear that in 1903, and again in 1907 (after this suit was brought), the whole farm was overflowed, and no crops were raised. With respect to other years there is some conflict in the testimony of the witnesses, but the preponderance of it is that the land overflowed to some extent every year, and that from one-fourth to one-half or more had overflowed every year for many years, with the exception of one or two unusually dry years, when the overflow did not cover so great a portion. This testimony was fortified by a showing that in 1907 the farm was covered when the gauge at Kansas City showed 20.1 feet, and that the records of the weather bureau showed that the gauge at Kansas City had registered 20.1 feet or more in 11 out of 17 years preceding the trial, and had registered within 11 inches of it in 1896, within 3 inches of it in 1901, and within 5 inches of it in 1906. There was evidence that in some of these years the overflow came early, and that a crop was raised by replanting after the waters receded.

Both plaintiffs and defendant introduced evidence on the question of the value of the lands. The evidence is uncontradicted that defendant's land was worth $40 per acre, the price at which it is placed in the contract. The evidence conflicts as to the value of plaintiffs' lands. Defendant offered much evidence tending to show that its value was practically negligible.

Alfred D. Russell, who had owned and lived on an upland farm which joined the Tough farm, testified that during the 7 preceding years the overflow resulted in a loss of fully three-fourths of all crops; that for over 10 years the river had been steadily cutting in toward the farm; and that it was likely the whole would be washed away in a few years, and the land had, on account of these things, practically no market value, though the soil was rich.

Arthur Russell, who once owned the 20-acre tract, which he sold to Tough in 1901 for $275 or $300, testified to the land having overflowed during the years he had an opportunity to observe it, and gave it as his opinion that the market value during the 3 or 4 years preceding August, 1907, would not exceed $10 or $12 per acre at any time, and that in August, 1907, it had no market value at all.

A. M. Spainhower, who had lived within a mile and a half of the land for 25 years, testified it overflowed more or less every year, and that there had never been a full crop raised all over it; that on an average during the preceding 10 years more than half the crops had been lost. He had worked on the land, and said the soil was good; that the river was cutting toward this farm, and had washed away between 100 and 200 acres above it during the year preceding August, 1907. He testified the market value of the land was not more than $10 per acre.

W. L. Thomas had lived about one-half mile from this land since 1883, and had worked on the land a good deal and put in one crop of wheat on it. He testified the land overflowed nearly every year for the 7 preceding years, and that there had been only two full crops in 12 years; the other crops were nearly all lost; that the river had been cutting in toward this farm for years; and that in 1906 it cut away "quite a lot" of the adjoining land. He said, he would not put its value above $10 per acre; that it was really worthless; "you cannot raise grass on it; you cannot raise crops on it."

James Kinder, a farmer who was living on a tract adjoining the Tough farm, and who said he had known that farm for about 23 or 24 years, testified he did not remember a year when a full crop had been raised on it. For 6 years he was away and knew nothing of the land during that time, 1900 to 1905, inclusive. The river had cut in toward the land "a terrible sight" in recent years. He thought the land was not worth more than $10 an acre.

Real estate men from Kansas City, Independence, and Atchison testified that, owing to the frequency with which the land overflowed it was practically worthless for farming, but might have a speculative or trading value of $10 to $30 an acre.

Jos. I. Tolliver, for plaintiffs, testified the land was worth $100 per acre; said it was the best farm he ever saw. He was the agent who arranged the deal resulting in the contract in suit.

F. G. Robinson, plaintiff, in his testimony intimated that plaintiffs in May, 1900, gave "right around" $100 per acre for the land. Subsequently he testified to facts indicating that the price paid was about $65 per acre.

John S. Tough testified he sold the lands to plaintiffs for $20,000 in May, 1906, and thought that was its value. He purchased the farm in the late 90's, and seems to have secured it for some cash and some "chips and whetstones." There was testimony for defendant that it was worth more then than in March, 1907.

T. F. Farmer, who lived in Kansas City and Leavenworth, and passed the Tough farm in going from one city to another, and had attempted to buy some corn there, testified he had heard that some land near it had sold for $100 to $150 per acre in 1907, and thought the Tough farm might be worth as much, "aside from the overflow feature," but that the river had been advancing toward it rapidly for several years, and that to him (the witness) "it would be valueless, on account of the liability of the river taking it." He knew, he thought, of 3 years in which the water destroyed the whole of the crops there, but did not know to what extent the crops had been damaged in other years, though he thought some full crops had been raised.

O. W. Button, a real estate dealer of Kansas City, had known the land since ...