Holt v. Wiliams

• Decision Date: 08 May 1922
• Docket Number: No. 2915.,2915.
• Parties: HOLT v. WILLIAMS et al.
• Court: Missouri Court of Appeals

240 S.W. 864

210 Mo. App. 470

HOLT v. WILLIAMS et al.

No. 2915.

Springfield Court of Appeals. Missouri.

May 8, 1922.

Appeal from Circuit Court, Lawrence County; Charles L. Henson, Judge.

Action by James Holt against A. E. Williams and others. Judgment for defendants on refusal to set aside an involuntary nonsuit with leave, taken at the close of plaintiff's testimony, and plaintiff appeals. Reversed and remanded, with directions to set aside the nonsuit.

H. H. Bloss, of Aurora, for appellant.

E. J. McNatt, of Aurora, for respondents.

COX, P. J.

Action for damages based on fraud and deceit. At the close of plaintiff's testimony, the court sustained a demurrer to his testimony. An involuntary nonsuit with leave was then taken, and, the court refusing to set the nonsuit aside, plaintiff appealed.

The petition charges the following facts: Plaintiff and defendant Williams entered into an agreement by which plaintiff was to exchange his interest in a garage stock and building for a farm and live stock, feed and machinery located thereon. The contract provided that if the parties could not agree upon the value of the stock, machinery, feed, etc., located on the farm, the matter should be submitted to appraisers, one to be selected by each party and these two to select a third party, that the parties were unable to agree, and that plaintiff selected Jake Oldham, defendant Williams selected J. D. Rickman, and these two selected J. M. Summers.

As constituting the fraud the following charge is made:

"That in order to cheat, wrong, and defraud the plaintiff, the said Williams entered into a conspiracy with the balance of the defendants by which it was understood that they were to appraise said property at a sum largely in excess of its reasonable market value, and to secure the assent of the balance of defendants to such unlawful conspiracy said Williams paid the defendant Rickman the sum of $200, and he in turn paid $100 thereof to the appraiser selected by the plaintiff, viz. Jake Oldham. That thereupon the said appraisers went to the place where said property was located on said farm south of Aurora, and appraised said property in excess of its reasonable market value to the extent of $1,040.44 and plaintiff after said appraisement, and being ignorant of the things done in pursuance of said conspiracy, and believing that the award of said appraisers was their fair and honest judgment, was caused to exchange said property on a basis of said value, and was thereby damaged in said sum of $1,040.44, for which amount he asks judgment, with costs."

At the beginning of the trial, the respondents objected to the introduction of any testimony on the ground that the petition did not state facts sufficient to constitute a cause of action. This was overruled, and the trial proceeded. Respondents insist that their objection, made at the beginning of the trial, should have been sustained, and that, since it was not, the subsequent action of the court in sustaining the demurrer to the testimony should now be upheld. The petition does not directly allege that the appraisers fraudulently or wrongfully and knowingly appraised the property at a value in excess of its actual market value with intent to cheat and defraud the plaintiff, as should have been alleged, but we think there is a sufficient allegation to advise defendants as to the nature of the charge that they were called upon to meet, and was sufficient as against the objection to the introduction of testimony under it.

The testimony offered on part of plaintiff tended to show: That plaintiff and Williams each made a list of the property, and placed a valuation thereon, then compared them, and it was found that the total value placed on the property by plaintiff was $1,769.50. The same property, listed and valued by Williams, totaled $2,775. Tile value placed on it by the appraisers was $2,731, only $44 less than the value fixed by Williams. That plaintiff protested that the amount was too high, but settled on that basis, supposing that the appraisers had acted honestly. After learning, as he claimed, that two of the appraisers had been bribed by Williams, he brought this suit to recover back the amount paid under the appraisement over and above the actual market value of the property. That the value fixed by the appraisers was very much above the fair market value.

The court excluded the list and values placed on the property by plaintiff. It would seem that this list should have been admitted to show that plaintiff and defendant Williams did not agree in their valuation of the property; but, as there seemed to be no controversy on that point, the exclusion of this list and value by plaintiff was harmless.

Plaintiff offered to show admissions by defendants Oldham and Williams, made after the appraisement of the property, that Williams had paid Rickman $200, and that Rickman paid Oldham $100 of that amount in connection with the appraisement. This was excluded for the reason that an admission of one coconspirator, made after the conspiracy has ceased, cannot be used against the other, and the demurrer to plaintiff's testimony was sustained on the theory that plaintiff's cause of action was based on a conspiracy, and, since the conspiracy was not proven, the action must fail. We think the court was in error in holding that this action is bottomed on conspiracy. Although the conspiracy is alleged, that is not the basis of plaintiff's action. His cause of action, if he has one, is the wrong done him by the bribery of the appraisers and the consequent false valuation of the property. The only value to him of the allegation of conspiracy and its proof, if he could have proven it, would have been to permit him to hold one party responsible for the acts of another done in pursuance of the common design. Hunt v. Simonds, 19 Mo. 583, 588; Hunt v. Johnston, 23 Mo. 432; Leonard v. Cox, 64 Mo. 32; Darrow v. Briggs, 261. Mo. 244, 276, 277, 169 S. W. 118; Epps v. Duckett, 284 Mo. 132, 142, 223 S. W. 572; Dworkin v. Caledonian Ins. Co., 285 Mo. 342, 226 S. W. 846; W. E. Stewart Land Co. v. Perkins (Mo. Sup.) 234 S. W. 653, 656.

The cause of action being the wrong done and not the act of conspiring together to do the wrong, it follows that, although a conspiracy be charged and not proven, yet if the wrong charged is proven to have been done, the plaintiff may recover against those whom his proof shows to have been responsible for the wrong. Aronson v. Ricker, 185 Mo. App. 528, 533, 172 S. W. 641.

Respondents are right in their contention that where the facts show that the wrong complained of could not be committed by one alone, but...