Hoffman v. Gill

• Citation: 77 S.W. 146,102 Mo. App. 320
• Parties: HOFFMAN v. GILL.
• Decision Date: 17 November 1903
• Court: Court of Appeal of Missouri (US)

77 S.W. 146

102 Mo. App. 320

HOFFMAN v. GILL.

Court of Appeals at St. Louis, Missouri.

November 17, 1903.

FRAUDULENT VALUATION OF PROPERTY—PETITION—ALLEGATIONS OF FRAUD—INSTRUCTIONS—APPLICABILITY TO FACTS—PUNITIVE DAMAGES.

1. The allegation in a petition that "defendant corruptly and fraudulently, with the intent to cheat and defraud the plaintiff," etc., sufficiently charges fraud on defendant's part.

2. Where, in an action to recover damages resulting from defendant's overvaluing certain jewelry, and thereby inducing plaintiff to accept the same as security for a loan to a third person, defendant testified that when he pretended to examine the jewelry and estimate its value he was aware of the intended disposition thereof by the third person, and it was shown that the jewelry belonged to defendant, but was delivered to the third person to sell, an instruction that if plaintiff loaned money to the third person, and took as collateral security certain jewelry, and plaintiff asked defendant for the value of the same, and if the opinion given by defendant was his honest opinion, and if he did not enter into a conspiracy with the third person, and had no knowledge of the alleged loan by plaintiff to the third person, and was acting in the usual course of business and without reward, the verdict should be for defendant, was properly refused, as not being supported by the evidence.

3. In an action for the recovery of damages resulting from defendant's overvaluation of jewelry, and thereby inducing plaintiff to accept the same as security for a loan made to a third person, punitive damages are not recoverable.

Goode, J., dissenting in part.

Appeal from St. Louis Circuit Court; H. D. Wood, Judge.

Action by T. G. Hoffman against W. A. Gill. From a judgment for plaintiff, defendant appeals. Modified.

Dodge & Mulvihill, for appellant. Henry M. Walsh, for respondent.

BLAND, P. J.

This cause went to the circuit court by appeal from a justice's court. The evidence is that in 1898, and for many years prior thereto, defendant, Gill, owned and conducted a jewelry store in the city of St. Louis. In 1898 he had an arrangement with one Joseph Finnegan, by which Finnegan was furnished articles of jewelry by defendant to be taken out and sold, and when sold Finnegan would pay defendant his cost price and a per cent. of the amount realized over and above the cost. In May, 1898, Finnegan was furnished by the defendant with one diamond stick pin, a large sunburst, and a Marquise diamond ring to sell and account for. On the 15th of May Finnegan called on plaintiff, and wanted to borrow $500, and offered to pledge the jewelry as security for the loan. Plaintiff was anxious to make the loan, and had previously advertised that he had money to loan, but was not acquainted with Finnegan, nor did he know the value of the jewelry, and it was agreed between Finnegan and plaintiff that an expert should be consulted and his opinion of its value obtained. The jewelry houses of Eugene Jaccard and Mermod-Jaccard were seen, but neither would give an opinion as to the value of the jewelry. Plaintiff then remembered that this brother knew the defendant, Gill, and he procured a letter of introduction from him. With this letter he and Finnegan called on defendant for his opinion as to the value of the jewelry. Plaintiff testified as follows as to what took place on the occasion: "I showed the diamonds to Gill, and he examined them, and said, `I cannot place any price on these goods so hurriedly; you will have to leave these.' `Oh, well,' I said, `don't be in a hurry, take your time, but be sure you are right;' and he kept them overnight, and told me to come again next day. I would have to give him about twenty-four hours to examine the goods. I called next afternoon, and asked whether he had examined them. He told me he had. I said, `What do you think they are worth?' `Well, they are reasonably worth $600 of any man's money.' And after that I felt satisfied that I could loan that amount of money —$500—on them, and I did." Finnegan testified that he was present, and something was said about the...