Hughey v. Truitt

• Decision Date: 16 June 1917
• Docket Number: No. 2023.,2023.
• Parties: HUGHEY et al. v. TRUITT.
• Court: Missouri Court of Appeals

196 S.W. 1065

HUGHEY et al. v. TRUITT.

No. 2023.

Springfield Court of Appeals. Missouri.

June 16, 1917.

Rehearing Denied July 24, 1917.

Appeal from Circuit Court, Pemiscot County; Sterling H. McCarty, Judge.

Suit by J. R. Hughey and another against R. H. Truitt and another. Judgment for plaintiffs, and defendant named appeals. Reversed.

R. L. Ward, of Caruthersville, and Thos. Gallivan, of New Madrid, for appellant. Sam J. Corbett, of Caruthersville, J. R. Brewer, of New Madrid, and Roy G. Garrison, of Caruthersville, for respondents.

COX, P. J.

This suit was brought against defendants, R. H. Truitt and R. J. Miller. Miller made no defense, and judgment went against him by default. Truitt answered, and on trial before a jury verdict was rendered for plaintiffs for $2,800, and Truitt appealed.

The petition is a blending of two causes of action; one in fraud and the other on contract. The petition was not attacked by demurrer or motion to strike out or to require an election, but defendant answered, and since, as we view the case, it can be properly disposed of on the conceded facts, it will not be necessary to discuss the pleadings.

The facts conceded, or at least undisputed, together with the facts developed by plaintiffs' testimony that are most favorable to them, may be summarized as follows:

Plaintiff J. R. Hughey was the owner of 160 acres of land in Pemiscot county which he sold by verbal agreement to defendant R. H. Truitt for $3,500, Truitt at that time held a mortgage on the land for $1,100, and it was agreed that this should be taken up and $400 paid to Hughey and a note for $2,000 due in five months be given by Truitt to Hughey, and Hughey should make and deliver a warranty deed to the land to Truitt. It was understood that Hughey should retain the land until he harvested his crop, and he states that Truitt told him when he got ready to make out the papers to go to defendant R. J. Miller, as he was general agent for Truitt to buy and sell land, and he (Miller) would attend to it. This agreement was not reduced to writing, and of course was not binding at that time.

When the crop was gathered and Hughey was ready to execute the deed and close the deal, he and his wife, the coplaintiff, went to Miller as directed and told him they had come to make the deed to Truitt and receive the pay as he and Hughey had agreed. Miller delayed preparing the papers until plaintiff J. R. Hughey became somewhat vexed, and told Miller that he must fix up the papers or he would go home. Miller then prepared the papers. Hughey and his wife signed and acknowledged the deed. Miller paid Hughey $400, and gave him a note for $2,000, and promised to get the $1,100 mortgage for him, and plaintiffs went home believing that they had deeded the land to Truitt and had received Truitt's note for $2,000. In fact, however, the deed was made to Miller, and the note was signed by Miller and his wife, Cora E. Miller. Hughey soon thereafter moved to Tennessee, and did not discover that he had Miller's note instead of Truitt's until some time after his removal to Tennessee. He could read and write a little, though not well, and did not read either the deed or the note.

When Hughey discovered that he had Miller's note instead of Truitt's, he did not send it back or make any complaint to Truitt, but retained the note, and later borrowed money at the bank and put this note up as collateral. The note was not paid, and the bank brought suit upon it in New Madrid county, Mo., and obtained judgment thereon against the makers, R. J. and Cora E. Miller. This judgment was not paid, and Hughey was compelled to pay his debt at the bank from other sources, and later brought this suit.

Truitt denies buying from Hughey at all, but says he bought the land from Miller and paid him in full without any knowledge that it was not paid for by Miller. Miller also testified that he bought from Hughey. We are, however, disposing of the case on plaintiff's testimony.

There is no pretense that Hughey was in any way prevented from reading the deed he signed or the note he received from...