Leach v. Bond

• Decision Date: 03 March 1908
• Citation: 108 S.W. 596,129 Mo. App. 315
• Parties: LEACH v. BOND et al.
• Court: Missouri Court of Appeals

108 S.W. 596

129 Mo. App. 315

LEACH v. BOND et al.

St. Louis Court of Appeals. Missouri.

March 3, 1908.

1. APPEAL — ABSTRACT — EFFECT OF INSUFFICIENCY.

Where an appeal is presented on a full record, showing that a timely motion for new trial was filed and overruled, that proper affidavit for appeal was filed and an appeal was allowed, and that the bill of exceptions was signed and filed within the time allowed, the Court of Appeals will not dismiss the appeal, nor refuse to consider the case on its merits, because the abstract fails to show all such facts.

2. FRAUD—REPRESENTATIONS—INTENT.

A false representation made as of one's own knowledge about a matter of which he has no knowledge is, in legal effect, the same as a false representation made with knowledge of its falsity, regardless of an intent to deceive.

Appeal from Circuit Court, Howell County; W. N. Evans, Judge.

Action by Wesley Leach against John C. Bond, C. C. Epps, and others. From a judgment for defendants, plaintiff appeals. Affirmed except as to defendants Bond and Epps, and reversed as to them.

O. L. Hayden and W. B. Campbell, for appellant. H. D. Green and Orr & Luster, for respondents.

BLAND, P. J.

The action is to recover damages resulting from alleged false and fraudulent representations charged to have been made by defendants to plaintiff in respect to a tract of land purchased by plaintiff of defendants John C. and Mary A. Bond. At the close of plaintiff's evidence the jury were instructed to return a verdict in favor of all the defendants except John C. Bond and C. C. Epps. The trial progressed as to these two defendants, and resulted in a verdict and judgment in their favor, from which plaintiff appealed. Defendants have filed a motion to dismiss the appeal for imperfections in the abstracts filed by plaintiff. The abstracts fail to show some of the facts necessary to warrant an appellate court to inquire into the merits of the appeal, but the case is here on a full record, which shows that a timely motion for new trial was filed and overruled; that plaintiff filed a proper affidavit for appeal and an appeal was allowed; also that the bill of exceptions was signed and filed within the time allowed by the court. In these circumstances it has never been the practice of this court to dismiss an appeal, or to refuse to consider a case on its merits for the reason the abstracts fail to state all the foregoing facts. The motion to dismiss is overruled.

The facts developed at the trial, succinctly stated, are that plaintiff and defendant Kautz reside in Audrain county, Mo.; that Kautz was interested in finding purchasers for lands in Howell county, Mo., and, in August, 1905, he and plaintiff visited said county, plaintiff intending to purchase a farm if he could find one to suit him. On arriving at West Plains (the county seat of Howell county) plaintiff and Kautz went to the real estate office of Markham & Adams, who showed them a list of lands they had for sale in said county. This firm called in Mr. Epps, who was also a real estate agent, and he drove plaintiff and Kautz into the country to look at lands. Neither Mr. Epps nor Markham & Adams had Bond's farm listed for sale, Epps, however, had had it for sale the year previous, and was acquainted with the farm, and knew it was a good one, and drove plaintiff to it for the purpose of looking at it and to see if it could be purchased. On arriving at the farm Epps interviewed Bond, and learned from him that he would sell the farm for $37 per acre. Bond was building a flue at the time, and told Epps to show plaintiff the farm, and plaintiff testified that Bond said he would stand by anything Epps would say about the farm. The farm contained 189.4 acres, about 130 of which was in cultivation. After talking to Bond plaintiff and Epps walked over a portion of the farm, which was fenced on the east, west, and north lines, but there was woodland on the south side of the farm not under fence. Near the southeast corner was an old log cabin. A few rods south of this cabin was an old brush fence. Plaintiff testified that Epps pointed to the cabin and fence and told him the brush fence was on the south line and there was about 18 acres of woodland. After walking over a portion of the farm plaintiff and Epps returned to the house. Plaintiff testified that after their return "Bond came out in the yard where he had been at work, and I asked him about this timber south of the creek, and he said there was 16 or 17 acres of it. I asked him if $37 per acre was the...