Knight v. Rawlings

• Decision Date: 01 July 1907
• Citation: 205 Mo. 412,104 S.W. 38
• Parties: KNIGHT v. RAWLINGS et al.
• Court: Missouri Supreme Court

104 S.W. 38

205 Mo. 412

KNIGHT v. RAWLINGS et al.

Supreme Court of Missouri, Division No. 2.

July 1, 1907.

1. STATUTES — ADOPTION — CONSTRUCTION.

When the statute of another state or country is adopted by the Legislature, the construction placed on the statute prior to its adoption governs.

2. FRAUD — FRAUDULENT REPRESENTATIONS — EVIDENCE.

Under Rev. St. 1899, § 3422 [Ann. St. 1906, p. 1965], providing that no action shall be brought to charge any person on any representation made concerning the character, conduct, or credit of any other person, unless made in writing and subscribed by the party to be charged or by some person by him authorized, evidence of oral representations made by defendants to plaintiff concerning the financial standing of one to whom plaintiff was thereby induced to lend money was inadmissible in an action for damages from the falsity of such representations.

3. SAME — CONFIDENTIAL RELATIONS — SUFFICIENCY OF EVIDENCE.

In an action to recover for damages resulting to plaintiff because of false representations made by defendants to plaintiff regarding the financial standing of one to whom plaintiff was thereby induced to lend money, evidence held insufficient to show that one of defendants stood in a confidential relation to plaintiff.

Appeal from St. Louis Circuit Court; Moses Sale, Judge.

Action by Florence Knight against Edward W. Rawlings and others. Judgment for defendants, and plaintiff appeals. Affirmed.

M. F. Hanley and R. P. & C. B. Williams, for appellant. David Goldsmith, for respondents.

GANTT, J.

Plaintiff brought this action in the circuit court of St. Louis against the defendants Edward W. Rawlings, T. S. Teuscher, and Mrs. T. S. Teuscher for damages for false and fraudulent representations concerning the financial standing of T. S. Teuscher, upon which plaintiff alleges she acted and relied to her detriment and damage. The petition contained two counts. The first count alleges that the defendants falsely and fraudulently represented to the plaintiff in November, 1896, that the said T. S. Teuscher was worth the sum of $10,000 over and above all liabilities, was solvent and in good credit, and safe to be trusted for a loan of $5,000; that, relying on said representations, the plaintiff loaned said Teuscher the sum of $5,000, and took for the loan Teuscher's note payable one year after date with interest at the rate of 6 per cent. per annum. The petition then alleges that each year thereafter until November, 1901, inclusive thereof, the said loan was extended for one year at the same rate of interest, and that at the date of each extension the same representations were made by the defendants and relied on by the plaintiff; these allegations being relied upon after each extension separately. It is further alleged in the first count that at the date when the loan was made, and at the time of each renewal thereof, Teuscher was insolvent, and this was well known by the defendants and designedly concealed; that Teuscher has wholly failed to pay the loan, or any part thereof, excepting that the interest was paid thereon up to the 17th of May, 1902. The second count refers to the same loan, and alleges a combination and conspiracy between the defendants to defraud the plaintiff, and in furtherance thereof sets forth that Teuscher and wife, who were the brother-in-law and sister of the defendant Rawlings, made various representations to plaintiff concerning Teuscher's solvency and means, which are set forth specifically, and are substantially the same as those alleged in the first count, and added that Teuscher was willing to borrow the $5,000 from plaintiff as a favor to her; that in furtherance of this conspiracy the defendants Teuscher and Rawlings caused the wife of Teuscher to induce the plaintiff to come up to a meeting at the residence of Teuscher, it being known that plaintiff reposed special trust and confidence in the defendant Rawlings; that it was arranged between the said conspirators that at this meeting Rawlings should sanction and indorse the statements and representations of Teuscher, and represent himself to be acquainted with Teuscher's financial condition; that, in furtherance of the conspiracy, Rawlings did make certain representations which were substantially the same as those set forth in the first count of the petition; that plaintiff relied upon these representations, and made the loan, and, in reliance thereon, also renewed the loan annually as stated in the first count. At the beginning of the trial, and before any evidence was introduced, the defendant moved the court to require plaintiff to elect upon which of the several causes of action alleged in the first count she would proceed; and the court sustained this motion, and plaintiff elected to proceed on that portion of the first count which related to the last extension, namely, the extension from November 17, 1901, to November 17, 1902, and the false representations relied upon by the plaintiff in the making of the renewal. While that election was made, the plaintiff introduced evidence, both in regard to the original transaction and the various renewals. At the close of the plaintiff's evidence the defendant asked an instruction in the nature of a demurrer to the evidence, which the court gave, and thereupon the plaintiff took a nonsuit with leave to move to set the same aside, and, having filed this motion, it was overruled, and the plaintiff appeals to this court. The plaintiff dismissed as to the defendant Teuscher, and there was no evidence tending to establish a case against Mrs. Teuscher, so that the defendant Rawlings is practically the only defendant on this appeal.

The evidence tended to establish that Mrs. Knight, the mother of the plaintiff, and Mrs. Rawlings, the mother of defendant Rawlings, were old acquaintances and friends; that in the year 1896 the plaintiff and her two sisters became entitled to an inheritance in England, the share of each being $5,265, the proceeds of which were forwarded to them and were received by them on October 28, 1896; that Rawlings, the defendant, who was then a clerk in the employ of Whittaker & Hodgman, assisted the plaintiff and her sisters in the collection and depositing of these funds in the National Bank of Commerce of St. Louis; that the elder sister took charge of her share of the funds, but the plaintiff and the other sister deposited theirs at the National Bank of Commerce in their respective names; that the defendant Rawlings advised them not to invest their funds until after the November election, 1896; that on November 11, 1896, Mrs. Teuscher, in the course of a social visit to Mrs. Knight, the mother of plaintiff, inquired whether the plaintiff and her sister had invested their funds, and when informed that this had not been done seemed surprised; that on the next day Mrs. Teuscher, in the course of another visit, mentioned that she had spoken of the matter to Mr. Teuscher, her husband, and he had expressed his willingness to borrow the money from the plaintiff and her sister; that Mrs. Knight, who had acted for her daughters in this matter, informed Mrs. Teuscher that the consent of the defendant Rawlings would be necessary; that nothing further transpired until November 16th, when Mrs. Teuscher called again, and arranged that the plaintiff's mother and sister should call at her residence that evening; that, when these ladies called that evening, the defendant Rawlings was present, and Teuscher stated that he had life insurance amounting to $60,000, was building a distillery at Vincennes, and had a splendid business in St. Louis, and that, if anything happened to him, Mr. Rawlings would have charge of his affairs, and would see that they were protected. The testimony for the plaintiff also tended to show that she had never been in a bank prior to the deposit of this money, and did not know how to draw a check; that defendant Rawlings wrote out the check and directed them how to sign their names, and in this way they drew $65 for their present needs. Plaintiff's sister, Miss Alice Knight, was asked, "Now I will ask you to state what representations and statements as to what Mr. Teuscher had stated and as to his solvency at that time Mr. Rawlings made on that occasion." To this question defendant objected unless such representations were in writing, and the court sustained the objection, to which action of the court the plaintiff at the time excepted. The witness was then asked, "State whether, after you left the house, if any statement, and when you went to the car, before you got on the car to go home, after you had had this conference with the three parties about loaning the money, whether Mr. Edward Rawlings made any statements to you and your mother as to whether he had investigated the financial condition of Mr. Teuscher. A. Yes; Mr. Rawlings — Counsel for Defendant: Do not answer." To this question the defendant objected upon the same ground as above, which objection the court sustained, and the plaintiff excepted.

Witness was asked further, "What was the agreement and understanding between you, your mother, and Mr. Teuscher and Mr. Rawlings as to loaning this money on that occasion?" Which question was objected to for the same reason as above, and the court sustained the objection, and plaintiff excepted. Witness further testified: That the defendant Rawlings on that occasion told them that the next morning they should come down to Teuscher's office and sign a paper. He did not state what the paper was or would be. That on the next morning, the 17th, they went to Teuscher's office and signed a paper, which she afterwards learned was a check for $5,000. She further stated that on the evening before, when the defendant Rawlings had arranged everything and said everything was all right, that their money would be safe, she asked if she should sign a paper so as to know they had the money, and he replied that that was...