Leicher v. Keeney

• Citation: 72 S.W. 145,98 Mo.App. 394
• Parties: WILLIAM LEICHER, Appellant, v. FRANK L. KEENEY, Respondent
• Decision Date: 16 February 1903
• Court: Kansas Court of Appeals

72 S.W. 145

98 Mo.App. 394

WILLIAM LEICHER, Appellant, v. FRANK L. KEENEY, Respondent

Court of Appeals of Missouri, Kansas City

February 16, 1903

Appeal from Pettis Circuit Court.--Hon. George F. Longan, Judge.

REVERSED AND REMANDED.

Reversed and remanded.

Louis Hoffman and Sangree & Lamm for appellant.

(1) A party defrauded in a transaction, on discovery of the fraud may stand by the contract and sue for damages resulting from the fraud and deceit. Shinnabarger v. Shelton, 41 Mo.App. 147; Owens v. Rector, 44 Mo. 389; Parker v. Marquis, 64 Mo. 38; Campbell v. Hoff, 129 Mo. 317. (2) When the fraudulent representations relate to the quantity of land sold or conveyed, it is immaterial whether the sale is by the acre or in gross. Thomas v Beebe, 25 N.Y. 244; Tyler v. Anderson, 106 Ind 191, and cases cited; Land Co. v. Simpson (Texas), 20 S.W. 953. (3) The second count of the petition states the distinguishing facts and elements of a good cause of action for fraud. Thus: (a) Keeney's false representations; (b) his knowledge of their falsity; (c) his intention they should be relied and acted on; (d) Leicher's ignorance of their falsity, and (e) Leicher's reliance and acting thereon to his resulting damage. Bank v. Byers, 139 Mo. 652, and cases cited; Paretti v. Rebenack, 81 Mo.App. 494; Edwards v. Noel, 88 Mo.App. 434. (4) One who relies on false representations, under such circumstances, has his action for the resulting injury, the gist of which is the fraud of the defendant. Delaney v. Rogers, 64 Mo. 201; Shinnabarger v. Shelton, 41 Mo.App. 147; Jarrett v. Morton, 44 Mo. 275; Nauman v. Oberle, 90 Mo. 666. (5) The trial court erred in compelling appellant to put the deed and contract in evidence at the commencement of his case and in preventing appellant's developing his case in an orderly and logical way, step by step. This ruling would have been right if our action had been based on the contract and deed, but was wrong in an action ex delicto, where such papers were merely one of several incidents born of the fraud, and constitute only links in our chain of evidence. We were not obliged to plead the terms of the written contract in an action ex delicto. Lambert v. Jones, 91 Mo.App. 288. (6) And the trial court erred in excluding the oral testimony offered by appellant to prove the facts constituting the fraud set forth in the second count of the petition. (a) Because the rule that oral evidence will not be heard to vary the terms of a written instrument does not apply to cases of fraud. The rule itself, when announced guardedly in the books, excepts and excludes fraud from its terms. Bigelow on the Law of Fraud (1 Ed.), pp. 174, 487; 1 Greenleaf on Evidence (15 Ed.), sec. 284; Liebke v. Methudy, 14 Mo.App. 65; Culp v. Powell, 68 Mo.App. 238; Railroad v. Curtis, 154 Mo. 10; Herman v. Hull, 140 Mo. 270; Bassett v. Glover, 31 Mo.App. 150, and cases cited; Squier v. Evans, 127 Mo. 514; Sprague v. Rooney, 104 Mo. 349; Childs v. Dobbins, 61 Ia. 109; Race v. Weston, 86 Ill. 91. (b) And because the rule that all prior and preliminary negotiations leading up to a written contract are merged in the writing, does not apply to cases of fraud. There can be no merger of fraud. Gooch v. Conner, 8 Mo. 391; Tyler v. Anderson, 106 Ind. 185; Match v. Hunt, 38 Mich. 1; Thomas v. Beebe, 25 N.Y. 244, and cases cited. (c) And because the gravamen of our complaint was fraud--resting exclusively in parol. There were Keeney's false representations resting in parol; Leicher's ignorance thereof and reliance thereon resting in parol; his being persuaded thereby to sign the contract, to accept the deed and finally pay the money, all resting in parol--and we should have been allowed to prove them in the only possible way, to-wit, by parol testimony. Sparks v. Brown, 46 Mo.App. 529, and cases cited; Stone v. Barrett, 34 Mo.App. 22; Calwell v. Henry, 76 Mo. 254; Clinkenbeard v. Weatherman, 157 Mo. 105; Carvill v. Jacks, 43 Ark. 439, and cases cited; Cabot v. Christie, 42 Vt. 121; Dano v. Sessions, 65 Vt. 79; Lovejoy v. Isbell (Conn. 1900), 47 At. 682; Gustafsen v. Rustemeyer (Conn. 1898), 39 A. 108, and cases cited; Lambert v. Jones, 91 Mo.App. 288.

Barnett & Barnett for respondent.

(1) All previous contemporaneous oral agreements are merged in the written contract. Hair Co. v. Walmsley, 32 Mo.App. 115; Wood v. Murphy, 47 Mo.App. 546; Morgan v. Porter, 103 Mo. 135. (2) A party will not be heard to complain that he has been deceived and defrauded as to the terms of a contract when he has equal means with the other party of knowing its contents, and will not be heard to complain in any case of being deceived when he fails to avail himself of the means and opportunities at hand of protecting himself. The complaining party must be free from negligence before he can have relief. Mires v. Summerville, 85 Mo.App. 187; Lewis v. Brookdale Land Co., 124 Mo. 672; Sanderson v. Voelcker, 51 Mo.App. 328; Dun v. White, 63 Mo. 181; Wade v. Ringo, 122 Mo. 322; Kingman v. Showley, 61 Mo.App. 54; Beck & Pauli Lith. Co. v. O'Bert, 54 Mo.App. 240. (3) There is nothing alleged in the petition to the effect that plaintiff did not have an opportunity of examining and measuring the land for himself. Mires v. Summerville, 85 Mo.App. 183; Wood v. Murphy, 47 Mo. 539. (4) The petition does not state a cause of action. Mistake and accident are not recognizable at law, but only in equity. Therefore, so far as mistake is alleged, said count states no cause of action. Graham v. Barney, 65 Mo.App. 208; Huitt v. Truitt, 23 Mo.App. 443; Beall v. January, 62 Mo. 434; Pattison's Mo. Code Pleadings, sec. 71.

OPINION

SMITH, P. J.

--This is an action for deceit. The petition alleges that the defendant sold him a farm by the following description, to-wit: The northeast quarter of section number eighteen, except that part lying north of the middle of the main channel of Muddy creek; also excepting the following: beginning at the southeast corner of said northeast quarter of section number eighteen thence running west one hundred and thirty-six and two-thirds poles, thence north forty-three poles and fifteen links; thence east to the east line of said section number eighteen; thence south forty-three poles and fifteen links to the place of beginning; also excepting from the remainder twenty acres off of the east side thereof; the east half of the northwest quarter, and twenty acres off of the south side of the west half of the northwest quarter of said section number eighteen, all in township number forty-six, north of range number twenty-one, west of the fifth principal meridian; also all of the southeast quarter of the northeast quarter of section number thirteen, in township number forty-six, and range twenty-two, lying east of Muddy creek; that he knew nothing whatever of the number of acres included in said description and that the defendant was aware thereof; that he (plaintiff) relied solely on the information derived from defendant, of which fact he (defendant) was aware; that defendant represented to him that the number of acres included in the said description was 160, and that defendant knew such to be the fact; that such representation was false and untrue and was either known by the defendant to be false, or else was recklessly made by the defendant as true for the purpose of having plaintiff accept the same as true and act thereon, when the defendant did not know the facts to be true; that during these negotiations, this plaintiff proposed to the defendant that the land should be surveyed and measured in order to determine the number of acres the land contained and to fix the aggregate amount of the consideration plaintiff was to pay for the land. And the defendant thereupon, falsely and fraudulently, and for the purpose of injuring and defrauding this plaintiff, represented and stated to the plaintiff, that he, the defendant, had surveyed said land or caused it to be surveyed and measured, and that the land, by such survey and measurement, contained, in fact, 160 acres, and that there was no use of any further survey and measurement. That plaintiff relying on these false and fraudulent statements and representations relating to the number of acres of land in such description and such survey, so made by the defendant, and believing them to be true, was induced thereby to sign a contract, and accept a deed from the defendant, for said land and to pay defendant the sum of $ 3,500, whereas in truth and in fact the defendant did not have said land surveyed, and in truth and in fact said description contained only 141.82 acres of land. Plaintiff states that by reason of the false and fraudulent statements and representations made by the defendant to the plaintiff, as above stated, plaintiff was deceived and induced to sign said contract, accept said deed and pay the defendant $ 399.96 more money than was due the defendant; and plaintiff was wrongfully defrauded into accepting a deed conveying said land less by 18.18 acres than he believed, and was wrongfully led by the defendant to believe he was getting; that plaintiff has often demanded from defendant said sum of money out of which he was tricked and defrauded by the defendant, and defendant has refused to make restitution. Wherefore, etc.

The defendant's contention that the petition does not state a cause of action is not, at least as to the second count, well taken. Thomas v. Beebe, 25 N.Y. 244.

At the trial the plaintiff to maintain the issue in his behalf introduced as a witness Charles Walch who testified that he was present during the negotiations leading up to the purchase of the defendant's farm by plaintiff. The witness was asked: "Do you recollect the price asked at that time?" (By Mr. Barnett, for defendant): ...