Harper v. Fidler

• Decision Date: 15 February 1904
• Parties: JOHN S. HARPER, Appellant, v. WM. C. FIDLER, Respondent
• Court: Kansas Court of Appeals

78 S.W. 1034

105 Mo.App. 680

JOHN S. HARPER, Appellant, v. WM. C. FIDLER, Respondent

Court of Appeals of Missouri, Kansas City

February 15, 1904

Appeal from Vernon Circuit Court.--Hon. H. C. Timmonds, Judge.

Judgment affirmed.

M. T January for appellant.

(1) Where the acts and admissions of a party clearly show that he did not rely upon the representations of the other party, he is not entitled to the finding of a jury on his own testimony that he did so rely. State v. Nelson, 118 Mo. 124; State v. Hamilton, 171 Mo. 377. (2) The fourth count of defendant's answer does not constitute a defense to this action and defendant's instruction No. 3 based thereon is erroneous. 45 L. R. A. 51, note "middlemen." (3) The term "agent" in this action is a legal conclusion, and it was improper to require the jury to define it as was done in instruction No. 3. Cockrell v. McIntire, 151 Mo. 59; Rowen v Railway, 82 Mo.App. 24; Dyer v. Brannock, 2 Mo.App. 432. (4) An instruction should not be given unless there is evidence on which to base it. Such is the vice in defendant's instruction No. 2. Marr v. Bunker, 92 Mo.App. 651. (5) Defendant's instruction No. 1 is erroneous, there being no evidence that the land was represented as "smooth and unbroken," and the materiality of each representation being assumed. Marr v. Bunker, 92 Mo.App. 651. (6) Defendant waived the the defense of mutual rescission and also the defense of double agency by his admission in the trial that his only reason for refusing to carry out the contract was on account of the misrepresentation of the 160 acre farm. Plaintiff's refused instruction No. 4 should have been given.

Scott & Bowker for respondent.

(1) If one makes a material misrepresentation, knowing it is not true, or makes a material statement as true, without knowing whether it is true or false, and it turns out to be false, and the other party relies upon it, and is thereby induced to trade, he is guilty of a fraud upon that party. And this rule applies of course, if the false statements are made by the agent. Chase v. Rusk, 90 Mo.App. 25; Cahn v. Reid, 18 Mo.App. 127; (2) Where a party by his instructions in effect, admits that there is sufficient evidence to submit the issue to the jury, he can not on appeal shift his position and claim the contrary. Hopkins v. M. W. of A., 94 Mo.App. 402; Mercantile Co. v. Burrell Sisters, 66 Mo.App. 117; James v. Hicks, 76 Mo.App. 108; Seiter v. Bischoff, 63 Mo.App. 157. (3) Where there is any evidence to support the verdict of the jury, the appellate court can not set it aside. Tower v. Pauley, 76 Mo.App. 287; Taylor v. Short, 38 Mo.App. 21; James v. Life Association, 148 Mo. 1. (4) If an agent is working for an adverse party without the knowledge or consent of his principal, it is good ground for the rescission of the contract, on the ground that it is against public policy. Dee Steiger v. Hollington, 17 Mo.App. 382; Atlee v. Fink, 75 Mo. 100; Insurance Co. v. Insurance Co., 8 Mo. 408; 2 Warvelle on Vendors (2 Ed.), 1004, section 852; MacDonald v. Wagner, 5 Mo.App. 56; Mechem on Agency, page 654, sections 796 and 798; Story on Agency (4 Ed.), section 210. (5) The above rule applies although the parties bargained for themselves; they are entitled to the benefit of the skill, knowledge and advice of the agent. Chapman v. Currie, 51 Mo.App. 44. (6) The only qualification to the above rule in this State is where the principal knew of the double agency and consented to the same. Chapman v. Currie, 51 Mo.App. 40; Dee Steiger v. Hollington, 17 Mo.App. 382; Rosenthal v. Drake, 82 Mo.App. 358. (7) The courts of this State have never recognized any distinction between real estate brokers in general and mere middlemen. The rule of double agency applies to both with equal force. Dee Steiger v. Hollington, 17 Mo.App. 382; Norman v. Roseman, 59 Mo.App. 682; Rosenthal v. Drake, 82 Mo.App. 358; Chapman v. Currie, 51 Mo.App. 40; Reese v. Garth, 36 Mo.App. 641. (8) In those states where the rule of double agency does not apply to mere middlemen, they hold that the middleman must be absolutely disinterested. Leathers v. Canfield, 45 L. R. A. 33, and cases cited in notes. (9) A rescission of a written contract may be by parol, and may be inferred from the acts and the declarations of the parties. Choteau v. Iron Works, 94 Mo. 388; Fine v. Rogers, 15 Mo. 315.

OPINION

SMITH, P. J.

The plaintiff was the owner of two tracts of land, one of which contained 200 acres and and the other 160. The defendant was the owner of a stock of clothing, boots and shoes in the city of Nevada which, owing to ill health, he desired to dispose of and go out of the mercantile business. One, Kolb, lived on the same street with plaintiff and was his neighbor and acquaintance. The former had for many years previously to the transaction to which we shall presently refer been in the employment of the plaintiff and his father who were engaged in the coal and seed business.

Early in October, 1902, the defendant employed Kolb to trade or sell his stock of merchandise for a certain commission. Two or three days after his employment Kolb came into defendant's store and handed him a typewritten description of the two tracts of land owned by plaintiff. The 200 acre tract was described as an "ideal combination farm, altogether one of the nicest country homes on the earth;" and the other--the 160 acre tract--"about 100 acres in cultivation, balance good timber, soil good, needs building up. Lays beautiful, not more than five acres waste land in place," etc. These descriptions were written by plaintiff and given to Kolb for defendant. Kolb arranged for a meeting of the plaintiff and defendant at the store of the latter. They accordingly met and the negotiations for the exchange of the store for the land were commenced. After the defendant had seen the description of the land and had heard and considered the representations of both plaintiff and Kolb, he signified an intention to make the exchange if after seeing the land he was satisfied with it. It was arranged that he should go out on the following day and examine it but when the day arrived he felt so ill that he concluded not to go and advised Kolb of the fact, telling him that he "guessed the trade was off." Kolb replied that, "you--defendant--are missing the bargain of your life. . . As a neighbor and a friend, Mr. Fidler, I can state to you that the land is worth every dollar Mr. Harper is asking for it--and it is a bargain to you. . . You had better go right down and close up this trade with John (meaning plaintiff). He is notionate--he is giving you a good trade and my advice to you as a neighbor is, to go down and close it up. The land is worth the amount . . . I am acting as your agent and do that honest."

The defendant did not go out to see the land but two days later on he concluded to trade with plaintiff and a written contract was prepared and signed by both under which it was agreed that plaintiff would take defendant's stock of merchandise at the "wholesale market price," and for which he was to convey the 200 acre tract of land at $ 35 per acre and the 160 acre tract at $ 15 per acre, defendant assuming the $ 4100 incumbrances thereon.

A future day was fixed for taking an invoice of the stock. In the meanwhile the defendant went and inspected the lands. He was well enough satisfied with the 200 acre tract but with the other he was not, for, as he testified, "I got out and went upon the ridge where the hedge fence was--the soil is black around it but then it dips down like a lake and the soil is all taken off of it (the land) and a ridge and furrows all in it. I walked in and it covered me up to my arm pits where the water had washed or made great ditches and there was trees growing up in what was supposed to be cultivating land; there were sprouts and small timber and some large timber also in the field. There was 12 to 14 acres that had been planted that season. Eighty acres had been in cultivation. There was not any soil practically; that is, growing soil at all. The timber had been chopped--culled--12 or 15 acres of it was waste land."

On the day the invoice was to be taken the defendant entered the store and calling plaintiff to one side said to him: "Mr. Harper, who is Kolb representing, you or me?" to which query plaintiff replied: "He is representing both of us." Thereupon the defendant said: "You both misrepresented this property to me--this farm lying south of town, and I am not going to trade." The defendant testified further that the plaintiff responded: "Well, you misrepresented your old goods to me, and I am not going to trade, either." The trade fell through. The plaintiff shortly afterwards tendered defendant warranty deeds for the land and demanded possession of the stock of merchandise. The defendant repudiated the contract. The plaintiff brought this action to recover damages for breach of the said contract claiming that he had been prevented from realizing a profit on the sale of the land, etc.

The answer alleged (1), that the plaintiff had represented to the defendant that 100 acres of the 160 acre tract was in cultivation and that the remainder was in good timber; that the tract was smooth and unbroken--not 5 acres of waste land in the entire tract; that said land was worth $ 15 per acre etc.; that defendant relied upon said representations so made by plaintiff and believed them to be true and was so induced to execute said contract sued on; that said alleged representations were untrue and false, and that plaintiff knew they were untrue and false at the time he made them to defendant, but made them for the purpose of cheating and defrauding defendant; and (2) that after said written contract was signed and after defend...