Hawman v. McLean

• Decision Date: 15 November 1909
• Citation: 139 Mo. App. 429,122 S.W. 1094
• Parties: HAWMAN v. McLEAN et al.
• Court: Missouri Court of Appeals

122 S.W. 1094

139 Mo. App. 429

HAWMAN v. McLEAN et al.

Kansas City Court of Appeals. Missouri.

November 15, 1909.

Rehearing Denied December 6, 1909.

1. NEW TRIAL (§ 41) — GROUNDS — ADMISSION OF IMPROPER EVIDENCE.

A trial court may very properly grant a new trial because of the admission of improper evidence, though it attempted to withdraw the evidence by an instruction.

2. APPEAL AND ERROR (§ 854) — REVIEW — NEW TRIAL.

An order granting a new trial will be sustained by an appeal, though the reason assigned therefor be not justified by the record, if any other good cause is made by the motion.

3. FRAUD (§ 59) — DECEIT — EXCHANGE OF PROPERTY — MEASURE OF DAMAGES.

Where plaintiff claimed that she was deceived in an exchange of certain property for land in Arkansas, the measure of her damages was the difference between the actual value of the land in Arkansas at the time of the exchange, and what would have been its value if it had been as represented, and hence it was error to authorize the jury to allow the difference in the value the parties put on the land in Arkansas, at the time of the exchange, and its actual value.

Appeal from Circuit Court, Buchanan County; C. A. Mosman, Judge.

Action by Sarah Hawman against John H. McLean and others. From an order granting defendants a new trial, plaintiff appeals. Affirmed.

James W. Boyd, K. D. Cross, and Wm. H. Sherman, for appellant. Grant S. Watkins, Chas. H. Booher, and Chas. F. Strop, for respondents.

ELLISON, J.

Plaintiff's action is for fraud and deceit. She recovered judgment in the trial court. A new trial was granted, and plaintiff appealed from that order.

It appears that plaintiff owned lands in Andrew county, which she exchanged for lands owned by defendants in Arkansas, and that plaintiff then exchanged the Arkansas land for real estate in the city of St. Joseph, Mo. Plaintiff alleges: That defendants induced her to make the exchange for the Arkansas land by their false and fraudulent representations of its value, its productive qualities, and the improvements thereon — matters she did not know and could not know about, and concerning which she relied upon the representations made by defendants as being true. That the representations were made to her for the purpose of deceiving and defrauding her.

It seems that plaintiff's exchange of the Arkansas land to third parties for the St. Joseph property was unfortunate, and that the result was she realized practically nothing from it. At the trial plaintiff testified in her own behalf, over the objection of defendants, as to the poor and disastrous results of her exchange for the St. Joseph property. The court gave two instructions withdrawing such evidence from the consideration of the jury; but when it came to consider the motion for new trial the court, in its discretion, concluded that injury had been done by allowing such evidence to be heard which could not be cured by withdrawing it, and therefore sustained the motion for the reason that such evidence had been heard. We think a trial court can very...