Kaufman v. Davis

• Decision Date: 11 December 1913
• Parties: KAUFMAN v. DAVIS et al.
• Court: Missouri Court of Appeals

161 S.W. 1180

175 Mo. App. 470

KAUFMAN v. DAVIS et al.

Springfield Court of Appeals. Missouri.

December 11, 1913.

On Motion for Rehearing, January 6, 1914.

1. APPEAL AND ERROR (§ 699) — RECORD — MATTERS TO BE INCLUDED.

Under Springfield Court of Appeals rule 8, providing that, for the purpose of reviewing the giving or refusal of instructions, it shall not be necessary to set out the evidence in the bill of exceptions, but that it shall be sufficient to state that there was evidence tending to prove the particular fact or facts, the refusal of an instruction could not be reviewed, though the abstract of the record stated that there was evidence tending to prove the facts upon which it was based, where the instructions given were not brought to the Court of Appeals, since the burden is on appellant to establish error, and the Court of Appeals could not presume that the refusal, if erroneous, was not cured by the other instructions.

2. FRAUD (§ 59)—ACTIONS FOR DAMAGES— MEASURE OF DAMAGES.

Where a party induced to agree to an exchange of property with H. and to pay money to brokers in reliance on the brokers' false representations that H. had title to the real property to be exchanged by him, instead of suing in equity to rescind the contract, sued at law for damages from the fraud and deceit of the brokers, he was entitled to recover the benefits of his bargain, and hence to recover the value of the land which he would have obtained had H. had title and not merely to recover the money paid by him.

On Motion for Rehearing.

3. APPEAL AND ERROR (§ 671) — RECORD — MATTERS TO BE INCLUDED.

In an action by a person, induced to enter into an exchange of merchandise for land in reliance on brokers' false representations that the other party had title to the land, against the brokers for damages from the fraud and deceit, where the abstract, unobjected to, showed only that plaintiff introduced evidence tending to sustain the allegations of his petition and that the court rejected his evidence as to the market value of the land on the ground that such value was not the proper measure of damages, the court could not pass on defendant's contention that the title to the merchandise also failed or that it was of no value.

4. FRAUD (§ 49) — ACTIONS — PLEADING—ISSUES.

In an action for damages by a person induced to enter into an exchange of merchandise for land in reliance on brokers' false representations that the other party had title to the land, where the answer contained only a general denial, a defense or counterclaim arising from the fraud and deceit practiced by plaintiff with reference to the quality, quantity, or title of the merchandise could not be passed upon by the trial court or Court of Appeals.

Appeal from Circuit Court, Jasper County; D. E. Blair, Judge.

Action by Arthur Kaufman against A. F. Davis and others. From a judgment for plaintiff for an insufficient amount, he appeals. Reversed and remanded.

R. M. Sheppard, of Joplin, for appellant. Grant Emerson and W. J. Owen, both of Joplin, for respondents.

ROBERTSON, P. J.

Plaintiff seeks to recover of the defendants the sum of $2,500 as damages on account of the alleged fraud perpetrated upon him by defendants in that, as he alleges, for a commission agreed by him to be paid to them, they undertook to trade certain property owned by plaintiff for a tract of real estate in Arkansas, and that, in pretending to consummate the deal, the defendants falsely and fraudulently represented to the plaintiff that one Henson was the owner of the land; that the defendants furnished the plaintiff with a pretended abstract of title to the land, showing said Henson to be the owner thereof, but that said Henson did not own the land, and the abstract which so showed was absolutely false; that the plaintiff, relying upon these representations, transferred his property to Henson and also paid to the defendants $45 in cash as a commission for their services and executed a note payable to the said Henson for $150 and a mortgage on said land to secure the payment of the same; that the defendants delivered none of the plaintiff's said property to Henson but kept and fraudulently appropriated the same to their own use and did not pay any part of the said money received from plaintiff to said Henson, nor deliver said note to him, but, without any authority from Henson, indorsed his name upon said note and transferred it to some other person. Plaintiff further alleges that the land was reasonably worth the sum of $2,500.

The defendants' answer is a general denial. A jury trial resulted in a verdict in favor of the plaintiff for the sum of $45, from which judgment the plaintiff has appealed, assigning as error the action of the trial court in refusing to admit testimony offered by him as to the reasonable market value of the Arkansas land at the time the fraud is alleged to have been perpetrated upon plaintiff by defendants; the court excluding the offer on the ground that the measure of damages was confined to the amount of the money paid. The court also refused the following instruction requested by the plaintiff: "If the jury find the issues for the plaintiff, then you should find for the plaintiff the full value of what said land would have been worth at the time of said sale if the title to said land had been, as represented by said defendants, not to exceed $2,500." This refused instruction is set out in the appellant's abstract of the record and is said to have been taken from page 126 of the bill of exceptions. No other instructions are quoted in appellant's abstract of the record.

Rule 8 of this court (123 S. W. v) is a duplicate of rule 6 of the Supreme Court (73 S. W. v). In the case of Clark v. Iron & Foundry Co., 234 Mo. 436, 437, 137 S. W. 577, the method of applying this rule is announced. It is there said that, where it is sought to have only a review of the action of the court upon instructions, "it is sufficient for the bill of exceptions to show that the evidence offered by the plaintiff tended to prove all of the allegations of the petition, and that the evidence offered by the defendant tended to contradict all of the evidence offered by the plaintiff, and also tended to prove the allegations of the answer, and that plaintiff offered evidence tending to disprove all of the allegations of new matter contained in the answer," etc. See, also, O'Donnell v. Patton, 117 Mo. 13, 18, 22 S. W. 903. We are not insisting that any fixed or inflexible form is essential under this rule, but we are of the opinion that the appellant should do more than submit the instruction or instructions complained...