King v. Morris, 7661

Decision Date16 June 1958
Docket NumberNo. 7661,7661
Citation315 S.W.2d 497
PartiesLee KING, Plaintiff-Respondent, v. Mack MORRIS, Defendant-Appellant.
CourtMissouri Court of Appeals

Don G. Busch, Springfield, for appellant.

Allen, Woolsey & Fisher, Russell G. Clark, Springfield, for respondent.

McDOWELL, Judge.

This appeal is from a judgment rendered in the Circuit Court of Greene County, Missouri, in favor of plaintiff for $250 in an action for fraud in the sale of a dairy cow.

Error is assigned that the petition fails to state a cause of action.

The essential elements necessary to be pleaded to constitute fraud are, 'That a representation was made as a statement of fact, which was untrue and known to be untrue by the party making it, or else recklessly made; that it was made with the intent to deceive and for the purpose of inducing the other party to act upon it; and that he did in fact rely upon it and was induced thereby to act to his injury and damage'. Latta v. Robinson Erection Co., Mo.Sup., 248 S.W.2d 569, 576(2); 23 Am.Jur. 773, Fraud and Deceit, Sec. 20; Dolan v. Rabenberg, 360 Mo. 858, 231 S.W.2d 150, 154; Powers v. Shore, Mo.Sup., 248 S.W.2d 1; Lowther v. Hays, Mo.Sup., 225 S.W.2d 708, 713; Kearns v. Sparks, Mo.App., 260 S.W.2d 353, 358(4); Salmon v. Brookshire, Mo.App., 301 S.W.2d 48, 54(5).

A failure to allege and prove any one of these essential elements is fatal to recovery in an action based on fraud. Salmon v. Brookshire, supra; Latta v. Robinson Erection Co., supra; Kearns v. Sparks, supra.

In the instant case the petition alleges, inter alia, that on February 17, 1956, plaintiff-respondent purchased a Guernsey cow from defendant-appellant, for $160; that at the time of purchase defendant knew that the cow was being purchased to add to plaintiff's dairy; that knowing such facts defendant represented the cow to be in good health and ideal for the purpose of plaintiff; that in the contract of purchase it was agreed and understood the cow would have to be approved by a veterinarian and defendant agreed to have the cow tested.

On the morning of the 18th, defendant had the cow delivered to plaintiff's farm and at the time stated and represented that the cow had been tested by a state veterinarian and furnished written certification showing the cow free from Brucellosis or Bangs disease. It states that defendant knew at the time he delivered the cow she had not been tested for Bangs disease and knew or should have known that she was a reactor; that defendant fraudulently substituted a veterinarian's certificate showing the cow to be free of Bangs disease and fraudulently placed a tag in the ear of said cow which represented she had been tested and was free of the disease.

It pleaded that prior to acquiring the cow from defendant plaintiff's herd was free of Bangs disease; that by reason of the selling to plaintiff of this cow, one other cow became infected and the premises became infected; that by reason of the fraudulent representations plaintiff was damaged in the sum of $500.

Under this alleged error defendant states in his brief that 'The most glaring omission is the absence of any allegation to the effect that responde...

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7 cases
  • Butler v. Circulus, Inc.
    • United States
    • Missouri Court of Appeals
    • October 11, 1977
    ...to join two theories of recovery in one count. Rotert v. Peabody Coal Company, 513 S.W.2d 667, 676(4) (Mo.App.1974); King v. Morris, 315 S.W.2d 497, 498(4) (Mo.App.1958); Kearns v. Sparks, 260 S.W.2d 353, 358(5) (Mo.App.1953). But the force of these statements in these cases is undercut by ......
  • King General Contractors, Inc. v. Reorganized Church of Jesus Christ of Latter Day Saints, 73804
    • United States
    • Missouri Supreme Court
    • December 17, 1991
    ...sought punitive damages. While joining two or more theories of recovery in a single count has been criticized, see King v. Morris, 315 S.W.2d 497, 498 (Mo.App.1958), the trial court suffered Count I citing Rule 55.10 which countenances different claims in a single Count II, which sought rec......
  • Cave v. Cave, KCD30644
    • United States
    • Missouri Court of Appeals
    • December 31, 1979
    ...Missouri Digest, Fraud, § 3. A failure to prove any of these essential elements is fatal to plaintiff's right of recovery. King v. Morris, 315 S.W.2d 497 (Mo.App.1958). Fraud is never presumed, but may be established by direct or circumstantial evidence, Bayer v. American Mutual Casualty Co......
  • Rotert v. Peabody Coal Co.
    • United States
    • Missouri Court of Appeals
    • July 1, 1974
    ...different theories of recovery on the separate items of damages, it possibly could have run afoul of what was said in King v. Morris, 315 S.W.2d 497, 498(4) (Mo.App.1958), 'The allegations in the petition are broad and might well be construed as an effort on the part of the pleader to join ......
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