Hays v. Smith

• Decision Date: 03 June 1919
• Docket Number: No. 19254.,19254.
• Citation: 213 S.W. 451
• Parties: HAYS v. SMITH et al.
• Court: Missouri Supreme Court

213 S.W. 451

HAYS v. SMITH et al.

No. 19254.

Supreme Court of Missouri, Division No. 2.

June 3, 1919.

Appeal from Circuit Court, Boone County; David H. Harris, Judge.

Action by James I. Hays against F. W. Smith and another. From a judgment for defendants, plaintiff appeals. Affirmed.

This is an action for fraud and deceit, brought by plaintiff, a resident of McLean county, Ill., in the circuit court of Boone county, Mo., on November 20, 1914, against defendants, as partners, engaged in the real estate business at Columbia, Mo. G. N. Akeman was the owner of 560 acres of land in Boone county, Mo., about 10 miles from Columbia. Plaintiff was the owner, subject to an incumbrance of $3,200, of 800 acres of land in Kansas. Plaintiff alleges in his petition that he was unacquainted with the value of Missouri lands; that defendants, acting as the agents of Akeman, represented to him Akeman's price for his laud was $75 per acre; that defendant Catron, in the fall of 1907, took plaintiff out to examine the Akeman land, and told him that Akeman's price was $75 per acre for said land; that, upon their return to defendants' office in Columbia, defendant Smith likewise priced said land at $75 per acre, and represented to plaintiff that the above was Akeman's price for said land; that plaintiff informed Smith the price was too high, and suggested to Smith that he see Akeman and ascertain if the price could not be reduced on the land; that Smith informed plaintiff that $75 per acre was Akeman's price, and that the latter would not be "jewed" into taking less for said land; that as a matter of fact defendants, at that time, had the Akeman land listed with Akeman's price therefor at $50 per acre; that plaintiff relied on the statements of defendants, and purchased the 560 acres at $75 per acre, by trading in the 800 acres of Kansas land at $20 per acre; that Akeman never informed plaintiff as to the value of his land, and appellant did not learn that Akeman's price for said land was $50 per acre, instead of $75 per acre, as represented by defendants, until over three years after the trade was made; that the representations of defendants as to Akeman's price for said land were false and known by them at the time to be untrue; that they were made to induce plaintiff to purchase said land at $75 per acre and to refrain from ascertaining that Akeman's real price was $50 per acre; that by said representations they did induce plaintiff to purchase said land, well knowing that Akeman's price therefor was $50 per acre; that, by reason of the fraud and deceit practiced by defendants upon plaintiff as aforesaid, he has been damaged in the sum of $14,000, for which he asks judgment.

The defendants answered with a general denial, and a plea of the five-year statute of limitations, as a bar to plaintiff's right of recovery.

Plaintiff's reply was a general denial of the new matter pleaded in the answer.

The evidence tends to show that plaintiff, a farmer 71 years of age at, time of trial, lived at Saybrook, McLean county, Ill. He had owned several small farms in Illinois; also, 800 acres of land in Kansas, and some land in North Dakota. T. L. McCollum, a resident of Galesburg, Ill., formerly lived at Saybrook, Ill., and knew plaintiff well in 1907-08, and prior thereto. McCollum was in the mercantile business at Saybrook, and was selling real estate on the side. He brought prospective purchasers of land to Boone county, Mo., and adjoining counties, and worked in conjunction with defendants. He came with plaintiff to Missouri, in the fall of 1907. They looked at a farm in Callaway county, Mo., and one near Salsbury. They then came to Boone county, and looked at the Akeman 560 acres, about 10 miles from Columbia. Defendants were partners, engaged in the real estate business at Columbia, Mo., and Catron was the son-in-law of defendant Smith. McCollum and defendants operated together, and divided their commission in case sales of land were made by them. Plaintiff testified he was not acquainted with the value or quality of lands in Boone county, Mo., but acted for himself, and knew defendants were working for Akeman. Plaintiff, in the fall of 1907, told Smith he wanted to put in the Kansas land at $20 per acre, and Smith knew that when plaintiff came back the second trip and traded for Akeman's land. On the first trip to Boone county, plaintiff, McCollum, and Catron went out to the Akeman farm in the morning, examined the farm, took dinner at Akeman's and returned to Columbia. Plaintiff says he had no talk with Akeman about the price or terms of sale, although Akeman talked with him about the soil, its productiveness, etc.

Plaintiff describes the alleged deceit, complained of, as follows:

"Q. Afterwards on the same day, or on that trip, did you have any conversation with Mr. Smith or Mr. Catron with reference to the terms upon which you could get the farm? A. Yes, sir; we talked over the price and the terms of payment, and Mr. Smith told me the price of the land was $75 an acre; that that was Akeman's price.

"Q. Had you asked him specifically about what the price was? A. Yes, I asked him pointedly what it was, and I told him at the time that I thought the farm was a little too high at that price, and probably if he would talk with Mr. Akeman that we might get him down. He said then it was positively no use to talk to Newt. Akeman; that he set his price and then worked to it; that a dollar on the deal would not close it or make any difference; that it was not Mr. Smith's price or Mr. anybody else's price, but Mr. Akeman's; and that it was positively no use—to ask him to come down any. I didn't ask Mr. Akeman about it because Mr. Smith had been recommended by Mr. McCollum to me as a strictly honorable, upright man, and that anything that Mr. Smith told me I could rely upon, and it didn't make any difference in what connection, and I placed absolute confidence in Mr. Smith, and I didn't care to make him, an old man, out a liar in the presence of Mr. Akeman, and, when he told me that was Mr. Akeman's price, I relied on it."

After setting out Smith's alleged statements as to the quality and productiveness of the Akeman land, plaintiff further testified:

"I never closed a contract at that time, not on the first trip. I went back to Illinois and was gone about two weeks and came back and closed up a contract on the 21st day of May. Mr. McCollum was with me on the second trip. Mr. Smith went out with me to see the Akeman farm on this second trip. We didn't spend any time scarcely at all on it. The farm was a mile and a half long on the south side, and we drove the full length of the farm and turned back to the center, east and west, and turned into the farm and out through the center there to the west part of the farm, and then drove out along the road. I told him I didn't know that I cared to go all over it, but we would drive around to Mr. Charley Rogers' farm, then back to Columbia. We went down there, and from there to Mr. Mike Bright's and got our dinner and came back to Columbia. Well, we talked over the matter when we got back to Columbia, and I proposed again to Mr. Smith that we would try to get Mr. Akeman down on the price, and he told me the same thing he did the first time; that Mr. Akeman was a man that after he set his figures you could not move him, and there was positively no use to say anything to him. I closed up a contract with him on that second trip."

Upon cross-examination, plaintiff testified, as to what occurred after his return to Smith's office, as follows:

"Q. What was said there? A. Mr. Smith affirmed what Mr. Catron said, and I told Mr. Smith I thought the land was too high at $75, and told him again if I bought land I wanted to put the Kansas land in on the deal at $20 an acre; that that was my cash price on the Kansas land.

"Q. Did Mr. Smith say anything to you about the price being $75, and take the Kansas land in? A. He said the price was $75 an acre and take the Kansas land in on the deal at $20 an acre.

"Q. You understood the price was $75 an acre and take the Kansas land in? A. Yes, sir.

"Q. When did you first price the Kansas land? A. When we looked at the Callaway county farm in 1907, in the fall." (Italics ours.)

He further testified, on cross-examination:

"Q. You bought this Akeman farm thinking it was worth $75 per acre? A. No, I didn't really think it was worth that. If I had, I would not have tried to get Mr. Smith to get Mr. Akeman to come down on it. I was `juberous' about it.

"Q. You knew it was not worth that much? A. Well, I didn't think it was—

"Q. You didn't— A. I thought it was high at that.

"Q. What did you think it was worth? A. Well, I don't know that I formed any correct opinion of just what it was worth, but I didn't think it was worth $75, really, not knowing just what was the quality of the land.

"Q. You expressed a willingness to take less than $75 for it, after the trade? A. After I found out what it was.

"Q. How long was it before you found out just what it was worth? A. Well, it was not very long. I could not tell you exactly the time, but I found out inside of a year. I began to find out more about the land and found out the price was too high. I offered to take less money for the land.

"Q. What did you find out it was worth, within a year? A. I found out that such land would sell for $50 to $60 an acre.

"Q. Did you find out within a year after you bought this land that it was worth only about $50 or $60 an acre? A. Yes, sir; that it would be about that average price of such land through the country.

"Q..Did you tell Mr. Smith that? A. I told Mr. Smith that I thought that I had paid too much, for it.

"Q. When did you tell him that? A. Inside of a year.

"Q. Where was he? A. In his office.

"Q. Who else was there? A. Mr. Catron was there." (Italics ours.)

It is claimed by appellant that the Akeman land was only worth $50 per acre; that Akeman's price...