Mathews v. Eby

• Decision Date: 07 July 1910
• Citation: 149 Mo. App. 157,129 S.W. 1016
• Parties: MATHEWS v. EBY.
• Court: Missouri Court of Appeals

129 S.W. 1016

149 Mo. App. 157

MATHEWS v. EBY.

Springfield Court of Appeals. Missouri.

July 7, 1910.

1. FRAUD (§ 12)—FRAUDULENT REPRESENTATIONS — EXISTING FACT—PROMISE.

A representation, to constitute "fraud" in law, must relate to an existing fact, as distinguished from a promise, and must be relied on.

2. ATTACHMENT (§ 32) — GROUNDS — DEBT FRAUDULENTLY CONTRACTED.

Where defendant obtained possession of certain mules purchased from plaintiff on the promise to send plaintiff a check on defendant's return home, his failure to do so did not constitute such false representation as would constitute fraud in law, so as to sustain an attachment on the ground that the debt was fraudulently contracted.

Appeal from Circuit Court, Scott County; Henry C. Riley, Judge.

Action by R. C. Mathews against Bert Eby. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.

Marshall Arnold and Brown & Gallivan, for appellant. Joe Moore, for respondent.

NIXON, P. J.

This was an action brought in the circuit court of Scott county on an account in the sum of $375, and a writ of attachment was sued out in aid thereof; the ground for attachment being that the debt sued for was fraudulently contracted. This writ was levied on three mules, the subjects of this controversy. The defendant filed a plea in abatement, which, among other things, denied that the debt sued for was fraudulently contracted. The verdict of the jury sustained the attachment. The defendant then answered, but upon plaintiff's motion a part of the answer was stricken out, and, defendant declining to plead further, judgment was rendered for plaintiff for the amount sued for. Defendant has appealed, and insists that the attachment should not have been sustained, because the evidence does not show that the debt sued for was fraudulently contracted.

This litigation had its inception in the sale of three mules. The evidence shows that plaintiff was a dealer in mules, maintaining a mule barn in Sikeston, Scott county, Mo.; that about the 1st of April, 1908, defendant appeared at plaintiff's mule barn, and, after having examined several mules, had two hitched to a wagon and tried them, and said he would take them, together with another mule he had examined. The two mules were priced at $190 each, and the separate mule at $175, making a total of $555; but plaintiff told defendant he would sell the three for $550. There is a direct conflict in the evidence as to what then occurred. Plaintiff testified that defendant went uptown, and then came back and caught the mules, and said: "I haven't got my check book here, and I can't pay you for this now; but I will send you a check when I get home." Plaintiff says he went uptown, and asked a man who was well acquainted in that country what he thought about letting the mules go on that kind of a promise, and that he was told it would be perfectly safe; that plaintiff then told defendant he could take them, but to send the check at once; that he waited about two weeks, and then wrote to defendant. Not receiving a reply, he wrote again, but to no avail. Plaintiff says that after about five weeks he sent Alfred Emery to the defendant; that the defendant sent back $100, with a promise to pay the balance at once; that after waiting about a week longer he wrote again, and then defendant came from his home in New Madrid county to Sikeston, and wanted to turn back the two mules which had been priced at $190 each, but plaintiff refused to take them, and told defendant to get the matter settled up by the following Monday; that def...