Lemon v. Wheeler
| Citation | 70 S.W. 924,96 Mo.App. 651 |
| Parties | SARAH J. LEMON, Respondent, v. WILLIAM N. WHEELER, Appellant |
| Decision Date | 01 December 1902 |
| Court | Court of Appeals of Kansas |
Appeal from Livingston Circuit Court.--Hon. J. W. Alexander, Judge.
REVERSED.
Judgment reversed.
Davis & Son, Sheetz & Son and Harry K. West for appellant.
(1) The plaintiff can not recover in this case for the reason that the cause of action, if any exists, is in favor of W. C Lemon and Sarah J. Lemon, jointly, and not in favor of Sarah J. Lemon, severally. Culver v. Smith, 82 Mo.App 390-398, and cases there cited. (2) The cause of action alleged in plaintiff's petition is for failure to deliver to her the hotel furniture and fixtures alleged to have been traded to her by the defendants. In such case the measure of damages is the value of the property alleged to have been contracted for delivery and not delivered. White v Salisbury, 33 Mo. 150; Cobb v. Whitsett, 51 Mo.App. 146; Griffith v. Material & Construction Co., 46 Mo.App. 539; Van Stone v. Hopkins, 49 Mo.App. 386. (3) The plaintiff and her husband having accepted a bill of sale from D. W. Cunning for the hotel furniture and fixtures, which upon its face shows that said property was traded by D. W. Cunning to W. C. Lemon and Sarah J. Lemon, said bill of sale is binding upon plaintiff in the form in which it now is, until reformed by a court of equity, in a direct proceeding for that purpose. Peers v. Davis' Admr., 29 Mo. 184; Jolliffe v. Collins, 21 Mo. 338; Davidson v. Monson, 146 Mo. 608; Parker v. Van Hoozer, 142 Mo. 621. In its present form the said bill of sale conveys the title to the hotel furniture and fixtures to W. C. Lemon and Sarah J. Lemon, jointly.
Johnson & Bresnehen and Chas A. Loomis for respondent.
(1) The decision of the trial court will stand, if the conclusion reached is correct, even though the reasons given were erroneous, or the judgment is based upon a wrong theory. Thiele v. Railway, 140 Mo. 319; Ittner v. Hughes, 133 Mo. 679; State v. Smith, 141 Mo. 1. (2) In spite of the presumption that the giving of an erroneous instruction is presumed to be prejudicial, yet if it is clear that the judgment is for the right party, and that no other judgment could have been rendered without injustice, the giving of such instruction will not justify a reversal or new trial. Barkley v. Cemetery Assn., 153 Mo. 300; Kuhn v. Ins. Co., 71 Mo.App. 305; Baustian v. Young, 152 Mo. 317; State v. True Nell, 79 Mo.App. 243; Fields v. Railway, 80 Mo.App. 603; 1 Pattison's Mo. Digest, page 252-3, art. 3169 to 3205. (3) The measure of damages in an action for fraud is the difference between the value of the goods which were actually delivered and the value of the goods, had they been as represented; and as in this case no goods were delivered whatever, the measure of damages must be the value of the goods had they been as represented. Schultz v. Chrisman, 6 Mo.App. 338; Ansyln v. Frank, 8 Mo.App. 242; Hamilton v. Mallett, 8 Mo.App. 584; McBeth v. Craddock, 28 Mo.App. 380; Brownlee v. Hewitt, 1 Mo.App. 360; Shinnebager v. Shelton, 41 Mo.App. 147; Hitchcock v. Baughan, 36 Mo.App. 216.
--This suit was instituted in the Linn Circuit Court from where it was taken to the circuit of Livingston county by change of venue. One David W. Cunning was also a party defendant, but he made no defense in the trial court where judgment was rendered against him and his co-defendant, Wheeler. The latter, alone, appealed.
The plaintiff's cause of action as stated is substantially as follows: That at and prior to the twenty-fifth day of September, 1899, plaintiff was the owner of a stock of merchandise then in a storehouse at Turney, Missouri, reasonably worth $ 2,500; that on said day the defendants with other persons in their employ wrongfully and fraudulently conspired together to defraud and cheat her out of said merchandise and induced and procured her to exchange her said merchandise for certain hotel furniture and fixtures then in a hotel located in the town of Marceline, Linn county, Missouri; that for the purpose of inducing plaintiff to make such exchange of property, defendants and their said employees fraudulently and falsely represented that said hotel fixtures and furniture were very valuable, such as to be found in first-class hotels, and were reasonably worth $ 1,726.15, and were free from incumbrances; and that relying upon said representations she was induced to and did enter into a contract by which she transferred and delivered to defendant David W. Cunning her said stock of merchandise at the agreed value of $ 2,500, in consideration for which defendants contracted to sell and deliver to her said hotel fixtures and furniture free from all incumbrances at the agreed price of $ 1,726.15, and to pay her in addition the sum of $ 100 in cash and to make and deliver to her a negotiable promissory note for the sum of $ 150, due in ninety days from date, secured by a first mortgage on real estate in said town of Marceline. It is further alleged that said defendants paid said sum of $ 100, but failed and refused to execute the said note for $ 150, and failed and refused to deliver said hotel fixtures and furniture, by reason of which she is damaged in the sum of $ 1,876.15.
The defendant Wheeler's answer consists of a general denial and substantially the following special defenses, viz.: That at the time stated by plaintiff she and one William C. Lemon who is not a party to the suit, made a trade and exchange of the properties mentioned with defendant Cunning, in which it was agreed that for the interest which said Cunning had in said hotel fixtures and furniture, and for a certain money consideration, said merchandise was transferred to said Cunning; for which reason it is alleged that the said William C. Lemon, being a party to said contract for exchange of said properties, is a necessary party to the action. The second special defense is that the plaintiff Sarah and said William C. Lemon made false and fraudulent representations as to the character of said merchandise in that they were merchantable and of the reasonable value of $ 2,500, whereby the said Cunning, relying on said representations, was induced to and did make said agreement and exchange of properties; that said merchandise was not salable, was old and worn and not exceeding $ 200 in value; and that by...
To continue reading
Request your trial