Horne v. John A. Hertel Company

• Decision Date: 07 December 1914
• Citation: 171 S.W. 598,184 Mo.App. 725
• Parties: R. C. HORNE, JR., Respondent, v. JOHN A. HERTEL COMPANY, Appellant
• Court: Kansas Court of Appeals

171 S.W. 598

184 Mo.App. 725

R. C. HORNE, JR., Respondent, v. JOHN A. HERTEL COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

December 7, 1914

Appeal from Saline Circuit Court.--Hon. Samuel Davis, Judge.

Judgment affirmed.

Virgil V. Huff for appellant.

(1) The plaintiff's petition does not state facts sufficient to constitute a cause of action. (a) A promise to perform some act in the future, not being a representation of a present existing fact, is not such a representation as to support an action of deceit. Bullock v. Wooldridge, 42 Mo.App 356. (2) Matters alleged as a mere matter of opinion do not constitute a misrepresentation such as to support action for deceit. Younger v. Hogge, 211 Mo. 444. (3) The respondent either knew all the facts he alleges as misrepresented to him inducing him to enter the contract, or by the exercise of ordinary prudence might have known the same, and this appears from the face of the petition. Champion Funding & Foundry Co. v. Heskett, 125 Mo.App. 531. (4) The written contract in evidence is conclusively presumed to merge all prior negotiations and to express the final agreement of the parties. Crim v Crim, 162 Mo. 544. (5) It is not competent to vary a written contract by parol testimony. Ochs v Railroad, 130 Mo. 41; McNeally v. Baldridge, 106 Mo.App. 17; Powell v. Price, 111 Mo.App. 320. (6) Where a contract is in writing the only fraud that may be shown is that touching the execution of the instrument, such as misreading, the surreptitious substitution of one paper for another, or obtaining by trick or fraud a writing which the other party did not intend to give. George v. Tate, 102 U.S. 560; Home Insurance Co. v. Winn, supra, and cases cited. (7) Changing the form of action from one on contract to one of deceit does not in anywise change the rule of law which provides that a written contract may not be varied by parol evidence. Johnston v. Life Ins. Co., 93 Mo.App. 588. (8) A party to a contract alleged by him to be induced by fraud on the part of the other party cannot receive and hold benefits under the contract, and then, without relinquishing those benefits, rescind the contract. He is estopped. Watson Fire Proof Window Co. v. Henry Weis Cornice Co., 168 S.W. 905.

Wm. D. Bush for respondent.

(1) A party defrauded in a contract may stand by it, even after he discovers the fraud, and recover damages resulting from the fraud, or he may rescind the contract and recover back what he paid or sold. Parker v. Marquis, 64 Mo. 38. (2) While a person signing a contract is conclusively presumed to know its contents and to accept the same, and all prior negotiations are merged in the writing; but fraud cannot be merged and may be shown to have been the inducement of the contract. Leicher v. Keeney, 98 Mo.App. 394; Gooch v. Conner, 8 Mo. 391. (3) It is that in suing to set aside a contract for fraud or deceit a party cannot affirm a contract and disaffirm it. He is not permitted to take inconsistent positions. He cannot retain the benefits of the contract and sue to set the contract aside. If a party knowing all the facts does not rescind the contract out of court cannot alter his position in court. He cannot retain the benefits and deny the obligation. Och v. Railroad, 130 Mo. 27; Jarrett v. Morton, 44 Mo. 275. (4) But this is not a suit on a contract. This is a suit in tort for deceit and in suing for deceit in inducing a party to enter into a contract, the contract or any position the party takes with reference to the contract, cannot bar the recovery for the deceit, for the action of deceit is based entirely upon the tort and the contract is merely an element of the damage. Parker v. Marquis, 64 Mo. 38; Shultz v. Christman, 6 Mo.App. 338; Heed v. Pierce, 8 Mo.App. 568; Brownlow v. Wellard, 61 Mo.App. 124.

OPINION

JOHNSON, J.

The petition alleges a cause of action in tort resulting from false and fraudulent representations which induced plaintiff to enter into a contract of employment with defendant and to attempt the performance of the same to his damage in the sum of $ 250. The sufficiency of the petition to state a cause of action was attacked by a demurrer which the court overruled, whereupon defendant answered interposing a general denial and the affirmative defense that "plaintiff has received from the defendant under and by the terms of said contract, the sum of twenty-four dollars and twenty cents, and still retains the same . . . and by so receiving and retaining said benefits under said contract is estopped to deny the validity of the same."

Verdict and judgment were for plaintiff in the sum of $ 50, and defendant appealed.

The material facts of the case are as follows: Defendant is the publisher of a child's book entitled "Bible Symbols, or The Bible in Pictures," in which simple narratives of biblical truths, events and stories are interpreted and impressed upon the childish memory by a series of puzzle pictures which illustrate and symbolize the narrative. The book is sold by subscription and defendant maintains an office in Kansas City for its sale and distribution in States of the Middle West. Agents are usually procured by the sales' manager of that office from among students attending colleges and universities who desire remunerative employment during vacations. Plaintiff who was such a student attending school at Marshall was solicited by the sales' manager to enter into an agency contract for the sale of the book on commission, for a period beginning June 1, and ending September 5, 1912, and was induced to accept the offer by the representation, among others, that the method of instruction employed in the book was unique and not to be found in any other book on the market. Plaintiff alleged in his petition and introduced evidence tending to show that the representation was false and its falsity known to the manager at the time; that there were numerous other similar publications on the market; that the territory assigned to plaintiff had been and was being canvassed by agents selling such other publications; and that plaintiff who devoted a month or more of arduous effort to sell the book lost his time and his expenses which exceeded the commissions he received by $ 50.

Other false representations are alleged in the petition and are shown by the evidence of plaintiff to have been made, but as they consisted either of promises or expressions of opinion and not of representations...