Housden v. Berns, 7241

• Decision Date: 09 December 1954
• Docket Number: No. 7241,7241
• Citation: 273 S.W.2d 794,241 Mo.App. 1163
• Parties: Neil J. HOUSDEN and Dorothy M. Housden, husband and wife, Plaintiffs-Appellants, v. Cecil V. BERNS and Doris Berns, d/b/a S. and B. Trailer Sales, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 794

273 S.W.2d 794

241 Mo.App. 1163

Neil J. HOUSDEN and Dorothy M. Housden, husband and wife Plaintiffs-Appellants, v. Cecil V. BERNS and Doris Berns, d/b/a S. and B. Trailer Sales, Defendants-Respondents.

No. 7241.

Springfield Court of Appeals, Missouri.

Dec. 9, 1954.

Turner White, Chinn & White, Springfield, for appellants.

Fred A. Moon, Springfield, for respondents.

McDOWELL, Presiding Judge.

This appeal is from a judgment rendered in the Circuit Court of Greene County, Missouri, for defendants on plaintiffs' petition seeking a rescission of contract of sale and asking that the parties be placed in statu quo on the ground of mutual mistake.

The cause was tried upon plaintiffs' first amended petition. It alleges that defendants were engaged in operating an automobile sales business in Greene County; that on or about November 1, 1952, plaintiffs bought from defendants a Streamlite House Trailer for the sum of $4,074.90; that defendants allowed plaintiffs a credit of $1,335 for their 1947 Elcar House Trailer and the balance of the purchase price was paid by two promissory notes, one for $80 on which plaintiffs have paid $25 and a deferred payment note for $3,805.20, on which plaintiffs have paid $181.20.

The petition states that at the time of the purchase, defendants represented the Streamlite Trailer to be a 1953 model, new and in sound condition; that these representations were false and untrue; that the trailer was in fact a 1952 model, not new and not in sound condition; that plaintiffs and defendants were mutually mistaken as to the year model and condition of the trailer so purchased and that plaintiffs would not have purchased said trailer had they known the true state of facts.

It alleges that plaintiffs, upon the discovery that the trailer was a 1952 model and not in sound condition as represented, tendered back to defendants the trailer bought and demanded the return of the consideration paid. The prayer was for a judgment declaring the sales contract void and ordering defendants to restore to plaintiffs their 1947 Elcar Trailer, or the value thereof, $1,335 and that defendants deliver up for cancellation plaintiffs' promissory notes together with the return of the cash payments made.

The answer amounted to a general denial.

Plaintiffs rely upon two allegations of error.

1. The court erred in refusing to consider plaintiffs' exhibit 2 as direct evidence of the year model of the Streamlite Trailer, and,

2. That the court erred in holding plaintiffs have failed to prove a prima facie case, since proof of misrepresentation of year model is sufficient to warrant rescission.

The judgment of the trial court, entered on June 8, 1953, is as follows:

'Now on this day come again the parties, Plaintiffs and Defendants in person and by their respective attorneys, and the Court having heard the evidence at an earlier date and taken the same under advisement now finds the issues in favor of the Defendants on the petition of Plaintiffs.

'It is therefore considered, adjudged and ordered by the Court that the Plaintiffs take nothing by their suit herein against the Defendants but that the same be and is hereby dismissed and that the Defendants, Cecil V. Berns and Doris Berns go hence thereof without day and have and recover of and from the Plaintiffs, Neil J. Housden and Dorothy M. Housden all costs in this suit laid out and expended, for which execution may issue.'

The record discloses that plaintiffs made no request for finding of facts and declaration of law but that after the judgment, to-wit on June 10, 1953, the court filed a memorandum in the cause stating reasons for his decision. We quote from the memorandum as follows:

'* * * The Court decided the issues in favor of the defendants on the theory that the plaintiffs' proof had wholly failed to establish plaintiffs' cause of action. The principal issue in the case was whether or not the trailer purchased by the plaintiffs was actually a 1952 model trailer. Unquestionably, the plaintiffs purchased it relying upon a representation that it was a 1953 model trailer, and the Court feels that this was a material fact and that if the representation was false, either by mutual mistake or by wilful misrepresentation, that the plaintiffs would be entitled to rescind. The only proof plaintiff was able to introduce was the deposition of the editor of the trade journal and the trade journal, itself, which, if admissible, would show that this trailer bearing this serial number was a 1952 model. Defendants' evidence was direct evidence that the trailer was a 1953 model. The Court has not attempted to weigh the evidence or evaluate it, because the Court feels that the plaintiffs' exhibits, to-wit: the deposition and trade journal, are both hearsay and are not admissible in evidence. On this issue, it is true that this evidence might be admissible to impeach the testimony given in the deposition introduced by the defendants, but since it is only impeachment testimony and since there is no other evidence of any nature on the issue, the Court has entered a judgment for the defendants.'

The court made a statement that this memorandum was made at the request of plaintiffs after judgment.

Under Section 509.050 RSMo 1949, V.A.M.S., it is provided that a pleading shall contain a short and plain statement of the facts showing that the pleader is entitled to relief, and a demand for judgment for the relief to which he deems himself entitled.

In Witte v. Cooke Tractor Co., Mo.App., 261 S.W.2d 651, 660, the following law is stated:

'* * * 'The powers of a court of equity are broad, but they are limited to the cause of action and issues made by the pleadings.' Branner v. Klaber, 330 Mo. 306, 49 S.W.2d 169, 180; Kramer v. Johnson, 361 Mo. 1085, 238 S.W.2d 416; 30 C.J.S., Equity, Sec. 608, p. 1005. * * * The general rule that the decree in an equity action must conform to the pleadings applies, and defendant's contention must be disallowed.'

In Kemp v. Woods, 363 Mo. 427, 251 S.W.2d 684, 688, the court stated the law:

'* * * The powers of a court of equity are limited to the cuase of action and issues made by the pleadings. Branner v. Klaber, supra. And, in determining the cause of action intended to be pleaded under the new code, we may consider the facts pleaded and relief sought. Foster v. Pettijohn, 358 Mo. 84, 213 S.W.2d 487, 488; St. Louis 221 Club v. Melbourne Hotel Corp., Mo.App., 227 S.W.2d 764, 770. * * *'

Following the law as declared by the Supreme Court in this case, the allegations of plaintiffs' petition that the representations made by defendants that the trailer was a 1953 model were false and untrue in that the trailer was a 1952 model and that plaintiffs and defendants were mutually mistaken as to the year model and the condition of the trailer aforesaid, show that plaintiffs based their cause of action for rescission upon mutual mistake of material facts. It was not an action in tort for fraud and deceit.

Under statement of jurisdiction in plaintiffs' brief, plaintiffs made the following statement:

'Plaintiffs sued Defendants for rescission of the sale to the former of a house trailer valued at $4,074.90 and for restitution of the status quo ante upon the ground of mutual mistake of material fact. The Circuit Court of Greene County held plaintiffs failed to prove any element of their cause of action and entered judgment for defendants.'

Under the pleadings the court was confined to the sole issue of whether or not there was a mutual mistake of material fact, in the sale of the trailer involved in order to grant the relief prayed for by plaintiffs, that is, that the house trailer represented to be a 1953 model was, in fact, a 1952 model.

In this opinion we will refer to appellants as plaintiffs and respondents as defendants.

In an equity action this court will review the record de novo and give such judgment as the trial court should have given. Milgram v. Jiffy Equipment Co., 362 Mo. 1194, 247 S.W.2d 668, 30 A.L.R.2d 925; Section 512.160 RSMo 1949, V.A.M.S.

Under the evidence it is undisputed that plaintiffs purchased the Streamlite Trailer from the defendants on the terms and conditions pleaded in the petition. Defendants admit they represented the trailer to be a 1953 model and testified that the trailer so sold was a 1953 model.

Plaintiffs' exhibit 2, entitled 'Official Trailer Coach Guide', 57 Edition, effective January 1, 1953, was offered in evidence. Objection was made as to its admissibility because it did not tend to prove or disprove the issues in the case, that is, the year model of the trailer sold. The trial court did not rule upon the admissibility of the offer, and, in fact, never made a ruling thereon. However, the exhibit was allowed to go into the record and is now before this court.

To support the admissibility of the exhibit, plaintiffs offered the evidence of W. A. Loomis, who testified he was engaged in the trailer sales and service business in Springfield and was familiar with trade involved in house trailers. He was given the serial number of the house trailer sold to plaintiffs by defendants and asked what year model he considered it. Objection was made to this testimony and the court reserved its ruling but permitted the answers to go into the record and the witness testified that his Firm used the Official Trailer Coach Guide, which is the same guide shown by plaintiffs' exhibit 2, as an authentic guide on trailer coaches to determine the year, model and resale value of trailers. He stated this was the customary method used by people engaged in buying and selling new and used trailers to determine the model. He testified he considered the model of the trailer in question to be a 1952 model. He stated he based his opinion upon the Official Guide and had no personal knowledge of the matter.

Plaintiffs offered the deposition of S.F.D. Meffley, who testified he has been engaged for 18 years in...