MacKinnon v. Weber

• Decision Date: 08 November 1934
• Citation: 75 S.W.2d 638,230 Mo.App. 785
• Parties: J. A. MacKINNON, RESPONDENT, v. HENRY F. WEBER, APPELLANT
• Court: Missouri Court of Appeals

75 S.W.2d 638

230 Mo.App. 785

J. A. MacKINNON, RESPONDENT, v. HENRY F. WEBER, APPELLANT

Court of Appeals of Missouri, St. Louis

November 8, 1934

Appeal from the Circuit Court of Jefferson County.--Hon. E. M Dearing, Judge.

Judgment affirmed.

R. E Kleinschmidt for appellant.

(1) A new trial should not be granted, if verdict in favor of party asking for same could not be allowed to stand. Lomax v Electric Railway, 119 Mo.App. 192; Roberts v. Telephone Co., 166 Mo. 370, l. c. 385; Alexander v. Ry. Co., 4 S.W.2d 888, l. c. 893; Thompson v. Paving Co., 203 S.W. 496, l. c. 498; Johnson Grain Co. v. Chicago, B. & Q. R. Co., 177 Mo.App. 194, 164 S.W. 182; Strode v. St. Louis Transit Co., 197 Mo. 616, l. c. 633. (2) Before fraud and deceit can be established and made a ground of recovery, on account of an alleged shortage of area in the sale of land, a guilty scienter must be shown. Additional authorities under Point 2 of Points and Authorities, page 7, Appellant's Brief, MacKinnon v. Weber. Stufflebean v. Peaveler, 274 S.W. 926, l. c. 929; Bank v. Hutton, 224 Mo. l. c. 65; Torlitt v. Hayes, 196 S.W. 790; Dunn v. White, 63 Mo. 184; Snyder v. Stemmons, 151 Mo.App. 156; Adams v. Barber, 157 Mo.App. 370, l. c. 386 et seq.; Koontz v. Kaufman, 31 Mo.App. 397; Paretti v. Rehenack, 81 Mo.App. 494, l. c. 498; Messerli v. Bantrup, 216 S.W. 825; Obermeyer v. Kershner, 38 S.W.2d 510, l. c. 513; 27 Corpus Juris, p. 33, sec. 152. (3) To prove fraud, the evidence must be clear and convincing, and the burden is on him who makes the charge. Obermeyer v. Kershner, 38 S.W.2d 510, l. c. 511; Woosley v. Wells (Mo. Sup.), 281 S.W. 695. (4) Before one can recover in any sort of an action based upon false representations he must show that he believed the alleged false representations and actually relied upon them. Noble v. Buddy et al., 160 Mo.App. 318; Adams v. Barber, 157 Mo.App. 370, l. c. 393; Paretti v. Rehenack, 81 Mo.App. 494, l. c. 498; Kelly v. Lawrence, 195 Mo. 57, l. c. 74 and 75; Halliwell Cement Co. v. Stewart, 103 Mo.App. 182. (5) The instructions given on behalf of defendant properly declared the law but if they contained any error, the same error appeared in the instructions given on behalf of plaintiff, and therefore defendant's instructions constituted no ground for a new trial. Adams v. Barber, 157 Mo.App. 370, l. c. 396; Meyers v. Drake, 24 S.W.2d 116, l. c. 125; Murphy v. Duerbeck, 19 S.W.2d 1040; Crutchfield v. Ry. Co., 64 Mo. 255. (6) The amended petition failed to state a cause of action, in that it shows that plaintiff did not rely upon the alleged false representations to his damage, but compromised the alleged shortage of acres for a valuable consideration; therefore, the demurrer to amended petition should have been sustained. Gash v. Mansfield, 28 S.W.2d 127; Noble v. Buddy et al., 160 Mo.App. 318; Halliwell Cement Co. v. Stewart, 103 Mo.App. 182. (7) An objection that a petition states no cause of action may be raised for the first time on appeal. La Crosse Co. v. Ry., 197 Mo.App. 546, 196 S.W. 1015; Davis v. Jacksonville, 126 Mo. 69. (8) Parties will be bound on appeal by the theory on which they tried the case in lower court. Bennett v. Standard Acc. Ins. Co., 237 S.W. 144, l. c. 147 and 148; Feil v. Wells (Mo. Sup.), 282 S.W. 25, l. c. 28; In re McMenamy's Guardianship (Mo. Sup.), 270 S.W. 662, l. c. 665; State ex rel. v. Cameron, 276 Mo.App. 683, 273 S.W. 746, l. c. 748. (9) An appeal lies from an order granting a new trial. Sec. 1018, R. S. Mo. 1929; Ormiston v. Trumbo, 77 Mo.App. 310. (10) An appeal will lie from such an order, even though motion in arrest of judgment has not been passed upon, and even though there has been no final judgment of dismissal entered in the case; Garner v. Bridge Co., 194 S.W. 82; Ormiston v. Trumbo, 77 Mo.App. 310. (11) Where trial court erred in sustaining motion for new trial on the ground, or grounds, assigned in the record, the appellate court will presume that it acted correctly in denying motion on other grounds, and burden is upon respondent to show that motion could properly have been sustained upon any ground assigned in the motion. Bradley v. Reppel, 133 Mo. 545, l. c. 560; Monthey v. Contracting Co., 277 S.W. (Mo. App.), 927, l. c. 932-933; Crowl v. American Linseed Co., (Mo. App.), 164 S.W. 618, l. c. 625-626; Yuronis v. Wells, 17 S.W.2d 518. (12) Where the ground for sustaining motion for new trial is specified, the presumption is that the motion was overruled as to all other grounds. Darnoll v. Lyons, 51 S.W.2d 159, l. c. 163; Monthey v. Kellerman Const. Co., 277 S.W. 927.

Thompson, Mitchell, Thompson & Young, R. Forder Buckley for respondent.

(1) Although the sale of a tract of land be in gross and not by the acre, nevertheless an action for fraudulent misrepresentations as to the acreage will lie. Ash v. Wiley (Mo. App.), 46 S.W.2d 897; Kelley v. Peeples, 192 Mo.App. 435; Leicher v. Keeney, 98 Mo.App. 394, 72 S.W. 145. (2) Representations of a material fact made as true by one without knowledge as to their truth or falsity, if they are false, are actionable. Brownlee v. Hewitt, 1 Mo.App. 360; Chase v. Rusk, 90 Mo.App. 25; Dunn v. White, 63 Mo. 181; White v. Reitz, 129 Mo.App. 307; Devero v. Sparks, 189 Mo.App. 500; Kelley v. Peeples, 192 Mo.App. 435; Messerli v. Bantrup (Mo. App.), 216 S.W. 825; Stufflebean v. Peaveler (Mo. App.), 274 S.W. 926; Ash v. Wiley (Mo. App.), 46 S.W.2d 897; Luikart v. Miller (Mo. Sup.), 48 S.W.2d 867; 26 Corpus Juris, p. 1108, sec. 37, p. 1109, sec. 39. (3) A party owning property is presumed to know the facts, and another in dealing with him is not negligent in relying upon his representations without making a personal investigation or a survey. Chase v. Rusk, 90 Mo.App. 25; Leicher v. Keeney, 98 Mo.App. 394, 72 S.W. 145; Brownlee v. Hewitt, 1 Mo.App. 360; Messerli v. Bantrup (Mo. App.), 216 S.W. 825; Lovelace v. Suter, 93 Mo.App. 429, 67 S.W. 737; Snider v. McAtee, 165 Mo.App. 260, 147 S.W. 137. (4) Settlement or release of a controversy obtained by fraud is nugatory and constitutes no defense. 53 Corpus Juris, pp. 1217 and 1218, sec. 34; Whitlow v. St. Louis-San Francisco Ry. Co. (Mo. App.), 282 S.W. 525. (5) Appellate court will not reverse granting of new trial if it can be sustained on any ground of the motion, even though not sustainable on grounds specified of record by trial court. Manthey v. Kellerman Contracting Co. (Mo. Sup.), 277 S.W. 927.

BECKER, J. Hostetter, P. J., and McCullen, J., concur.

OPINION

BECKER, J.

This is an action at law for damages for fraud and deceit based upon alleged misrepresentations as to the acreage of a tract of land sold by defendant to plaintiff. Upon a trial verdict resulted in favor of defendant and judgment in due course followed. Thereafter the court granted plaintiff a new trial on the ground that the court had erred in giving two instructions on behalf of the defendant, and defendant appeals.

Since defendant urges here on appeal that plaintiff's petition fails to state a cause of action, and that his demurrer offered thereto should have been sustained; and further contends that even though we rule that plaintiff's petition states a cause of action, plaintiff, upon the record, failed to make out a case submissible to the jury, and that his demurrer offered at the close of the case should have been given, it is necessary that we dispose of these propositions at the threshold of the case.

Plaintiff's amended petition upon which the case was tried, alleges that he was a resident of the city of St. Louis, and had purchased a track of land in Jefferson County, Missouri, in which county the defendant resided, from the defendant; that defendant represented that the tract contained "35 acres, more or less;" that the land was unfenced and was partly cleared lowland and partly rough timber highland; that the public road bound said land on one side but that the other boundaries were unmarked and undiscernible; that only the corners of said land on the public road were shown to plaintiff; that not all of the tract represented to contain thirty-five acres could be seen by plaintiff or was visible from any one place; that after plaintiff, accompanied by defendant's son and agent, had viewed the land, the defendant himself personally stated and represented to plaintiff that the land that had thus been exhibited to plaintiff comprised one tract of thirty acres, upon which there were no improvements, and a five acre tract improved with an unfinished farmhouse, making a total of thirty-five acres; that it was thereupon agreed that defendant would sell said land to plaintiff at the price of $ 90 per acre plus $ 850 for the improvements on the five acre tract, and $ 100 for an interest in the crops then growing on said land, and the completion of the house, aggregating a total consideration of $ 4100; that a written agreement was thereupon entered into, the agreed consideration of $ 4100 recited therein being based upon the tract containing thirty-five acres at $ 90 per acre and $ 950 for the improvements and crops as above set forth.

Said written agreement recited that the defendant had on "this 9th day of May, 1931, sold to the plaintiff the following described tract of land, to-wit: A part of the East Half (E 1/2) of the Southeast Quarter (SE 1/4) of Section 4, Township 42, Range 4 East, containing thirty-five acres, more or less, for the sum of Forty One Hundred Dollars to be paid as hereinafter set forth. . . . The party of the first part agrees to convey to the party of the second part the premises above described free and clear from all incumbrances, by a deed of general warranty within ten days of date or as soon as land can be surveyed and title run."

The petition then alleges that on May 20, 1931,...