Long v. Freeman
| Decision Date | 20 February 1934 |
| Citation | 69 S.W.2d 973,228 Mo.App. 1002 |
| Parties | BETTIE LONG, RESPONDENT, v. C. W. S. FREEMAN, APPELLANT |
| Court | Missouri Court of Appeals |
Rehearing denied April 3, 1934.
Appeal from Jasper County Circuit Court.--Hon. R. H. Davis, Judge.
REVERSED AND REMANDED.
E. C Medlin, J. E. Sater and D. H. Kemp for appellant.
D. S Mayhew for respondent.
This suit for damages arising out of certain alleged fraudulent representations in the exchange of real estate, was instituted in Newton County, November Term, 1927; a change of venue was taken to the Circuit Court of Jasper County and the case was tried in that court on the 20th day of June, 1932, resulting in a verdict and judgment for plaintiff in the sum of $ 1500 and defendant appealed to this court. The long delay in reaching the appellate court is unaccounted for but we assume the case was twice tried in circuit court.
In her petition plaintiff alleges that on the 17th day of November, 1926, she was the owner of certain real estate consisting of a lot upon which was located a six room house and also a six room duplex house in the City of Tulsa, Oklahoma, of the value of $ 8000, and subject to a mortgage in the sum of $ 2000; that she was at the time a widow, alone in the world, old and incapacitated from properly attending to business; that defendant fraudulently took advantage of her said condition and induced plaintiff to exchange her said property for a certain eighty acres of farm land in Barry County, Missouri, by certain false and fraudulent representations (which for convenience, we have numbered) as follows: (1) that the farm was worth $ 8000 and that he had been offered $ 100 per acre for same but had refused; (2) that there was twenty-five or thirty people wanting this farm; (3) that the mortgage on the Barry County farm had five years to run from the date of the contract; (4) that the farm had thereon four acres of growing strawberries which defendant owned and that she would receive the entire strawberry crop; (5) that she would receive all rent corn amounting to 280 bushels from the farm; (6) that the $ 2000) was all the mortgage against the land when in truth there was a second mortgage for $ 60; (7) that she would clear $ 600 or $ 700 per year off the strawberries; (8) that she could make $ 90 per acre off the tomatoes growing on said land; (9) that she could get enough income off the farm in three years to pay off the entire indebtedness and by reason of all of which she was induced to sign the contract filed with the petition by which she agreed to the exchange of property and did exchange same by mutual warranty deeds.
Plaintiff further alleged that all of the above representations were untrue and fraudulently made to induce plaintiff to sign said contract; that the farm of defendant, "is not worth to exceed the sum of three thousand dollars, etc;" that she was damaged in the sum of $ 5000 for which she asked damages.
Defendant's answer admits the execution of the contract and exchange of properties but denies each and every other allegation in the petition contained.
It is first urged that the trial court erred in refusing to give an instruction in the nature of a demurrer to the evidence offered at the close of the whole case. In this connection the trial court withdrew from the jury, by an appropriate instruction, the consideration of all evidence in respect to tomatoes, which takes out of the case the alleged fraudulent representation we have designated as Number "8."
In considering the demurrer to the evidence plaintiff's testimony is to be taken as true and given its full weight, together with every reasonable inference therefrom in her favor. [Maiden v. Fisher, 17 S.W.2d 563.]
She testified in substance, that she had listed her property in Tulsa with one Cunningham, a real estate agent (who was also defendant's brother-in-law) and that thereafter he took her on a trip to Missouri for the purpose of looking at some farms; that she looked at several farms and among them the farm of defendant; that she did not walk over the place because it was raining, but that they drove down in the pasture and down the road to the pasture and on returning looked at the lower rooms in the house; that she made two trips on which she looked at the property; that on the first trip Mr. Freeman told her the farm was worth $ 8000, that he had been offered $ 100 per acre for it; that he told her there was 280 bushels of rent corn on the place which she would get but that it turned out there was but eighty bushels; that he told her there was four acres of strawberries, but in fact there was but two acres. Her evidence further shows that she entered into a written contract for another farm in Barry County prior to the time she entered into the contract with defendant for his farm, but for some reason the first contract fell through. She inspected several farms, but the inspection of the Freeman farm, she says, was only from a car. In the additional abstract filed by plaintiff, it appears that she testified that she did not walk around the farm because it was raining but she fails to state on what occasion, since she twice visited the farm. She offered further evidence tending to prove that her property in Tulsa was worth $ 7000 to $ 7500 and that the farm of defendant was worth from $ 2400 to 3000. There is no testimony as to plaintiff's age or that on account thereof she was incapacitated so as to prevent her inspection of the farm, although there are such allegations in the petition.
Plaintiff further testified that, after she returned to Tulsa, she received two letters from defendant in regard to the trade and that finally he came there and that defendant and Cunningham called on her about the trade; that at that time, and before she signed the contract, he represented to her that the farm was worth $ 8000 and that relying on his statements as to the value of the farm she finally signed the contract and afterwards executed the deed to the Tulsa property and received a deed from defendant and his wife to the farm.
The material part of the written contract entered into between plaintiff and defendant on the 15th day of November, 1926, reads as follows: "Party of the first part is trading two houses on Lot Five (5), Block 28, Owens Addition to the City of Tulsa, Okla., party of the 1st part is to increase her present loan from $ 1500.00 to $ 2000.00 and is to be deeded to party of the 2nd part subject to a $ 2,000.00 loan.
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