Lewis v. Muse

• Decision Date: 17 March 1908
• Citation: 108 S.W. 1107,130 Mo. App. 194
• Parties: LEWIS v. MUSE.
• Court: Missouri Court of Appeals

108 S.W. 1107

130 Mo. App. 194

LEWIS v. MUSE.

St. Louis Court of Appeals. Missouri.

March 17, 1908.

1. EVIDENCE — PAROL EVIDENCE — VARYING WRITTEN INSTRUMENT—LEASES.

In an action on a promissory note, where a written lease recited that plaintiff had leased to defendant certain lands, without stating the number of acres leased, for a consideration of $300, one-half of which was represented by the note sued on, defendant may not set up by way of counterclaim that the tract actually contained a less number of acres than plaintiff represented it to contain, since that would vary the terms of the written lease, which contained the entire understanding of the parties.

2. SALES—WARRANTIES—IMPLIED WARRANTIES OF QUANTITY.

Where defendant leased from plaintiff certain land under a written lease, and at the same time purchased a certain number of acres of standing corn from him, paying so much per acre, plaintiff representing that the field contained so many acres of corn, when, in fact, it contained a less number, and defendant being unfamiliar with the acreage relied on the same, the representations of warranty will be treated as an implied warranty, and the damages being apportionable, in an action by plaintiff on a note given for rent of the farm, defendant may recover by way of counterclaim, on a count for money had and received, the excess amount paid for the corn.

3. SAME—KNOWLEDGE OF QUANTITY—IMPUTED KNOWLEDGE.

Defendant, being unfamiliar with the acreage of corn in the field, and relying on plaintiff's statement that it contained a certain number of acres, was entitled to rely on such representations, and knowledge of the number of acres contained in the field cannot be imputed to him.

4. SAME—COUNTERCLAIM FOR BREACH OF WARRANTY — NATURE OF REMEDY — ACTION FOR MONEY RECEIVED.

Defendant may recover on his counterclaim on a count for money had and received the amount paid for the corn in excess of the actual number of acres in the field; an action for money had and received being the proper remedy.

5. TRIAL—TRIAL BY COURT—DECLARATIONS OF LAW — ERRONEOUS DECLARATIONS — WHEN MATERIAL.

Even if a finding of fact by the court under Rev. St. 1899, § 695 [Ann. St. 1906, p. 704], providing that the court shall make a finding of fact at the request of either party, would render error in declarations of law immaterial, where no special finding was requested, but the court merely recited in an ordinary judgment of law certain findings of fact, errors in declarations of law are material, and constitute reversible error.

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

Action by G. W. Lewis against J. E. Muse. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Livingston & Livingston, for appellant. M. E. Morrow, for respondent.

GOODE, J.

This action was instituted on a promissory note dated September 1, 1904, by which defendant promised to pay on July 1, 1906, to the order of plaintiff, $150, with interest at the rate of 8 per cent. per annum. The execution of the note was admitted, and in defense it was alleged that on August 30, 1904, defendant rented from plaintiff a farm in Howell county represented by plaintiff to contain 200 acres of land in cultivation, on which representation defendant relied and agreed to pay $1.50 an acre cash rent for the premises, or $300 in all; that defendant paid half said rent, or $150, at the time of the contract, and executed the note in suit for the other half. It is charged the representation regarding the quantity of land in cultivation was false, as in truth only 140 acres were in cultivation, and there was no consideration for the rent for the deficiency of 60 acres. Hence defendant prayed to recover by way of counterclaim the sum of $90, or $1.50 an acre for the shortage. For another counterclaim defendant stated that on said August 31, 1904, he purchased of plaintiff 54 acres of corn standing in the field, raised and entirely owned by plaintiff, and plaintiff's one-third of 40 acres of corn raised on his premises by his tenant Shaver, and plaintiff's one-third of 40 acres of corn raised on his premises by his tenant George Ball. It was alleged defendant agreed to pay, and did pay, $7 an acre for plaintiff's interest in these three lots of standing corn; that plaintiff represented there were 54 acres of corn owned exclusively by himself, and 40 acres in the field of which he owned a third interest and Shaver the remainder, and 40 acres in the field of which he owned a third and Ball the remainder; that, instead of said quantities of corn being in said tracts, there were only about 40 instead of 54 acres, or a shortage of 14 acres in the field owned by plaintiff exclusively, and only about 26 acres instead of 40 in the Shaver tract, or a shortage of 14 acres, and only about 25 acres in the Ball tract, or a shortage of 15 acres; that, in consequence of the misrepresentation, defendant paid plaintiff an excess of $217 for the corn; in other words, paid for 31 acres of corn which he did not get. We have been unable to make the figures regarding the three deficiencies alleged in the answer or those testified to by plaintiff tally exactly with the counterclaim demanded; but nevertheless the testimony tended to prove defendant had paid for more corn than he received. The testimony for defendant proved, too, that plaintiff made the alleged representation regarding the quantity of corn in the three tracts, and defendant bought and paid for the corn according to plaintiff's statement. Defendant lived in another part of the country, and was unfamiliar with the farm and relied on what plaintiff said. He paid in all for the corn standing on the three tracts $569; that is to say, $469 for the 54 acres raised by plaintiff himself and one-third of the 40 acres raised by Shaver, or 13 1/3 acres. The two tracts were stated to contain 67 acres more or less, and defendant paid $7 an acre, or $469. He paid $100 for one-third of the Ball tract. Defendant testified, and the testimony of other witnesses went to prove, the sale was $7 by the acre. Plaintiff, on the other hand, gave testimony conducing to prove his utterances about the acreage in the different fields were merely expressions of opinion, and that he took defendant through the fields and sold him the corn by lot, and not by the acre.

On this question the defendant requested three declarations of law, the purport of which was that if the court found from the evidence plaintiff represented to defendant there were a certain number of...