Hodges v. Torrey
| Citation | 28 Mo. 99 |
| Parties | HODGES, Respondent, v. TORREY, Appellant. |
| Decision Date | 31 January 1859 |
| Court | Missouri Supreme Court |
1. In order that fraudulent representations made by a vendor to a vendee with respect to the character of the improvements upon the land sold may be the basis of the relief to the purchaser in an action by the vendor on a promissory note given for a portion of the purchase money, it must appear that the misrepresentations were made with respect to something material and constituting an inducement to the contract.
Appeal from Putnam Circuit Court.
Davis, for appellant.
I. The only question here is as to the answer. If the answer sets up facts which, if true, entitle the party in law to a deduction in damages from the amount due by the note, then the court mistook the law in striking out the answer. The point is considered as settled in the cases of House v. Marshall, 18 Mo. 371, and that of Grand Lodge of Masons v. Knox, 20 Mo. 433.
Holly & Burckhartt and Tindall, for respondents.
I. The answer does not state that the appellant is damaged any amount. It does not state that the representations were falsely and fraudulently made, but states that they were false and fraudulent from the fact that the pre-emption right and improvements were not in existence. If the parties both had equal means of knowledge, and the appellant had an opportunity of examining the land for himself and neglected to do so, it is his own fault and he is without redress. (See Sandford v. Justice, 9 Mo. 855.) The mere fact that respondent represented that improvements were on the land which were not on the land does not constitute a defence unless it is alleged that he did so knowing that he was making false representations. The answer does not allege that the respondent had no claim upon said land at the time of filing the answer, or that there has been any failure on his part to convey the land to him. The answer does not state the facts fully. (See Copeland v. Loan, 10 Mo. 266.)
This was a petition to foreclose a mortgage given to secure the payment of a promissory note. It seems the defence set up was a partial failure of consideration, caused, it is alleged, by the false and fraudulent misrepresentations of the plaintiff. There were three answers filed to the petition. The first answer stated that the only consideration of the note was an undertaking on the part of the plaintiff to convey to the defendant, by a good and sufficient deed, the north half of the north-east quarter of section 18, in township 66, range 20; that plaintiff failed to execute the conveyance, and that defendant had never received possession of said land. This answer also contained a set-off to the plaintiff's demand, amounting to $234, alleged to be for so much money had and received of defendant to and for the plaintiff's use. This answer was on motion stricken out. An amended answer was then filed in which it was stated that the note sued on was given as a part of the consideration of the purchase of the south-west quarter of the south-west quarter of section five, and the east half of the north-east quarter of section seven, and the west half of the north-west quarter of section eight, and south-east quarter of the north-east quarter of section eighteen, and also the north half of the north-east quarter of section eighteen, all in township 66, range 20; that the price agreed to be paid for these lands was the sum of $2,630; that all of said sum had been paid except the note secured by the mortgage, the subject of this suit, which was given wholly in consideration of the balance of the purchase money aforesaid; that the plaintiff, at the time of the sale of the said lands, represented that he had and owned a legal pre-emption right and claim to the last mentioned tract, to-wit: the north half of the north-east quarter of section eighteen, which was estimated at the price of $234, which formed a part of the said sum of $2,630; that the representations of plaintiff were false and fraudulent in this, that the plaintiff did not hold or have any claim of pre-emption or any right to said land, but the same was public land. This answer was, on motion, stricken out. A second amended answer...
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