Longuemare v. Busby

• Citation: 56 Mo. 540
• Parties: LEON LONGUEMARE, Respondent, v. JOHN BUSBY, Appellant.
• Decision Date: 31 March 1874
• Court: United States State Supreme Court of Missouri

56 Mo. 540

LEON LONGUEMARE, Respondent,

v.JOHN BUSBY, Appellant.

Supreme Court of Missouri.

March Term, 1874.

Appeal from St. Louis Circuit Court.

Henry B. O'Reilly, for Appellant.

Donovan & Conroy, for Respondent.VORIES, Judge, delivered the opinion of the court.

This action was brought on two promissory notes executed by the defendant to the plaintiff, one for fifteen hundred dollars and the other for seventy-five dollars.

The defendant, by answer, set up as a defense to the action, that the notes were obtained from defendant by the plaintiff through fraud, misrepresentation and deceit, and that the consideration for which the notes had been executed had, in the greater part, or entirely failed; and stated the facts in reference thereto to be substantially as follows: That in August, 1868, by virtue of a deed of trust executed by one Dennis Devoy, lot 5 of block 47, in Convent Addition to the City of St. Louis was exposed for sale at public auction at the Court House, to enforce the payment of certain notes thereby secured and then held by plaintiff; that at such sale, one John F. Gibbons attended in behalf of defendant and purchased said lot in the name of defendant, but on the joint account and for the joint use of said Gibbons and defendant, which purchase was made at and for the sum of five hundred dollars, that sum being the highest sum bid or offered for said lot; that Gibbons was also the agent of the plaintiff in conducting the sale of said lot; that said Gibbons, after the sale and purchase as aforesaid, falsely represented to defendant, that said lot had been sold to him at said said sale for fifteen hundred dollars, and that he, acting as agent of the defendant, had bid in said lot for him at said price; that the defendant being wholly ignorant of the facts, but confidently relying on the representations of said Gibbons, who was acting for plaintiff, executed the notes sued on, as well as four other notes of the same date for the sum of $75 each, payable in six, twelve, eighteen, twenty-four and thirty-six months after date respectively, and delivered them to plaintiff without any other or farther consideration whatever, than the purchase money of said lot; that the defendant has paid plaintiff of these notes for seventy-five dollars each, the aggregate sum of three hundred and seventy-five dollars, which leaves a balance of one hundred and twenty-five dollars, which is due plaintiff, and which defendant avers a willingness to pay, &c.

The plaintiff, in his replication, denied the allegations of fraud and misrepresentations contained in the answer, and avers that the consideration of the notes was money loaned by the plaintiff to the defendant.

The case was tried by a jury. The facts of the case, as they appear in the bill of exceptions, which are uncontradicted, are about as follows: That on the 10th day of August, 1868, and for some time previous thereto, and for a long time after said time, one John F. Gibbons was the duly authorized agent of the plaintiff to loan money for him, and take securities for money loaned for plaintiff and collect the same, and generally to attend to plaintiff's financial business; that said Gibbons was also the agent for the defendant in the collection of rents falling due to him during the same period of time; that some years previous to August, 1868, said John F. Gibbons had, as the agent of plaintiff, loaned to one Dennis Devoy $1,500.00 and had taken a deed of trust from said Devoy, conveying to a trustee a lot in the City of St. Louis, to secure the payment of the sum loaned, with interest; that the money secured by the deed of trust and interest had become due, amounting to about $1,800, and was unpaid; that the deed of trust contained a power of sale upon default of payment; that said Gibbons, being the agent of plaintiff as aforesaid, caused the lot named in the deed of trust to be advertised for sale under the power in said deed; that a few days before the time fixed for the sale of the lot under the trust deed, Gibbons called the attention of Busby to the fact that said lot was to be sold, telling him that he thought there might be a speculation made by purchasing the lot, also proposing to Busby, that if he would purchase the lot that he would go in with him in the purchase and become a joint owner with him of the lot, and that they would share the profits made by a re-sale of the lot. When this suggestion was made to Busby, he and Gibbons went and examined the lot, and both agreed that the lot was worth from three to four thousand dollars, after which Busby agreed to the proposition made by Gibbons to purchase the lot on their joint account; but inasmuch as Gibbons did not want his name to appear in the transaction, or that it should appear that he had an interest in the purchase, it was agreed that the lot should be bid off at the sale by Gibbons in the name of Busby on their joint account. It is...