Judd v. Walker

• Decision Date: 23 December 1908
• Citation: 215 Mo. 312,114 S.W. 979
• Parties: JUDD v. WALKER et al.
• Court: Missouri Supreme Court

114 S.W. 979

215 Mo. 312

JUDD v. WALKER et al.

Supreme Court of Missouri, Division No. 1.

December 23, 1908.

1. FRAUD (§ 32)—FRAUDULENT REPRESENTATIONS—REMEDIES.

False representations by the agent of the vendor to an intended purchaser as to the acreage in the tract to be sold, antedating the contract for the purchase and the deed conveying the premises, are not merged in the contract and deed.

2. FRAUD (§ 3)—FRAUDULENT REPRESENTATIONS—ACTIONABLE FRAUD.

False representations of a vendor on material facts leading up to a sale, with his knowledge of their falsity and a present intention that they should be believed and acted on by the purchaser, coupled with the latter's ignorance of their falsity and his reliance and acting on such representations to his damage, are actionable.

3. EVIDENCE (§ 434) — PAROL EVIDENCE — DEEDS — FRAUDULENT REPRESENTATIONS.

Fraudulent representations resting in parol, inducing one to purchase real estate, may be proved by parol, notwithstanding the subsequent execution of a written contract of sale and deed conveying the premises.

4. FRAUD (§ 32) — FRAUDULENT REPRESENTATIONS —REMEDY OF PURCHASER.

A purchaser induced to purchase by fraudulent representations as to the acreage of the tract need not sue on the covenants of warranty in the deed conveying the tract, nor need he go into equity to rescind the contract, but he may hold the premises conveyed and sue at law for his damages.

5. FRAUD (§ 22) — FRAUDULENT REPRESENTATIONS — RELIANCE ON REPRESENTATIONS.

A positive representation, as of his own knowledge, by a vendor as to the acreage of a tract may be relied on by the purchaser, and due diligence does not require him to suspect that the representations are false, and he need not measure the tract to prevent being deceived thereby.

6. FRAUD (§ 22)—NATURE OF "FRAUD."

Fraud is a willful, malevolent act directed to perpetrating a wrong to the rights of another, and such an act in a vendor is actionable as against the mere negligence or inadvertence of the purchaser in failing to prevent fraud.

Appeal from Louisiana Court of Common Pleas.

Action by Curtis J. Judd against Alten M. Walker and another. From a judgment for defendants, plaintiff appeals to the Court of Appeals. The Court of Appeals reversed the judgment, and certified the cause to the Supreme Court. Judgment of trial court reversed, and cause remanded.

Ball & Sparrow, for appellant. Pearson & Pearson, for respondent Walker. Matson & May, for respondent Naxera.

LAMM, J.

Judd, the plaintiff, resides in Brookline, Mass., but is in business at Dwight, Ill. Bourland resides at Pontiac, Ill. The defendants, Walker and Naxera, reside in Buffalo township, Pike county, Mo. Naxera owned two tracts of land in Pike county, Ill. Walker was Naxera's agent to sell them. Bourland was Judd's agent to buy them. So acting, at a certain time Bourland purchased from Walker said tracts of Illinois land. Judd and Bourland were strangers in that vicinity, and unfamiliar with the lands. Walker and Naxera were familiar with the lands, and Walker made false representations as to the acreage. After the deed passed from Naxera to Judd, it was ascertained there was a serious discrepancy in the amount of land conveyed by the deed, whereby Judd paid over $1,000 for land he did not get, and which Naxera did not own, and knew he did not own. Thereupon Judd sued Naxera and Walker for damages in the Louisiana court of common pleas, grounding his action on fraud and deceit. No question is made on the pleadings, and the facts seem to be of such sort that the law should throw no mere captious obstacle on dry technicality in the road of recovery—to the contrary, should put its benediction on the effort, if it can be done without overturning settled principles. The laws of hospitality seem to require that strangers should be taken in in a good sense, but courts should be astute to not permit such a "taking in" as appears here. At a trial in that court with the aid of a jury, at the close of plaintiff's evidence, he was cast by a peremptory instruction. Thereat he appealed to the St. Louis Court of Appeals. That court, speaking through Nortoni, J., handed down a unanimous opinion reversing and remanding the case (Judd v. Walker, 114 Mo. App. 128, 89 S. W. 558), but certified it here, being of mind that its opinion was in conflict with Mires v. Summerville, 85 Mo. App. 183, decided by the Kansas City Court of Appeals. The statement of facts by Judge Nortoni and his conclusions of law are found in 114 Mo. App. 128, 89 S. W. 558. We approve the statement of facts by the learned judge and his conclusions of law. Would it not be a shame to jurisprudence if, on the facts found, the conclusions drawn did not irresistibly follow? True, Naxera made no false representations of material facts in person to either Judd or Bourland, but his mouthpiece, Walker, did, and Naxera after notice adopted the transaction, and either shared in the polluted gains or aided Walker in pocketing them. True the written contract preceding the deed was signed by Bourland as a party thereto. But Walker knew at that time that Bourland represented another, and, if he did not know it at that time, both he and Naxera knew it before the deed was made by Naxera to Judd. True, the false representations relating to acreage antedated the written contract and the deed, but the fraud was not merged in those instruments. Gooch v. Conner, 8 Mo. 391; Tyler v. Anderson, 106 Ind. 185, 6 N. E....