McTernan v. Mason

• Decision Date: 03 July 1916
• Docket Number: No. 12029.,12029.
• Parties: McTERNAN et al. v. MASON.
• Court: Missouri Court of Appeals

188 S.W. 923

McTERNAN et al. v. MASON.

No. 12029.

Kansas City Court of Appeals. Missouri.

July 3, 1916.

Appeal from Circuit Court, Jackson County; Clarence A. Burney, Judge.

"Not to be officially reported."

Suit by Michael McTernan and James F. Halpin against Adolphus O. Mason, in which defendant interposed a counterclaim. Balance judgment for plaintiffs, who succeeded on one count, defendant being successful on his counterclaim, and defendant appeals. Affirmed.

Ed. E. Aleshire, of Kansas City, for appellant. Cowherd, Ingraham, Durham & Morse, of Kansas City, for respondents.

JOHNSON, J.

The first count in the petition alleges a cause of action in equity for the enforcement of a vendor's lien; the second, a cause at law for the recovery of money upon a contract. Defendant answered and filed a counterclaim to the second count. The court found for plaintiffs on the first count for the full amount of their demand, and adjudged that they were entitled to a vendor's lien upon the land described in the petition. The jury returned a verdict for plaintiffs on the second count for $144, and for defendant on his counterclaim for $131, and judgment was entered for plaintiffs for $13. Defendant appealed.

Counsel for defendant insisted in the trial court and still insist there are issues of law involved in the action for the enforcement of the vendor's lien which should have been referred to a jury. The material facts relating to that action are as follows: Plaintiffs owned real property in Kansas City which they agreed with defendant to exchange for a ranch he owned in Trego county, Kan. There were incumbrances on both properties, and defendant owned a large quantity of personal property on the ranch which he agreed to put into the trade. Among the incumbrances on defendant's ranch disclosed by the abstract of title were two mortgages for $800 and $700, respectively, the first of which secured four notes of $200 each. No mention of this mortgage was made in the exchange contracts. The mortgage of $700 was mentioned in the contracts and was excepted from the warranty in the deed to the ranch delivered by defendant to plaintiffs, but the petition alleges, and the evidence of plaintiffs tends to show, that in the settlement made by the parties at the closing of the trade defendant falsely and fraudulently represented that he had paid $494 on the $700 note, and thereby had reduced it to $206. Relying on this representation plaintiffs credited defendant in the settlement with $494.

The evidence of plaintiffs also shows that only three of the $200 notes of the $800 mortgage (which was not excepted from defendant's warranty) had been paid, and that after the settlement they were compelled to pay the fourth note which, with interest, amounted to $213.25.

It is conceded that defendant, as a part of the consideration for the exchange of properties, was to include 10 sets of harness valued at $25 each, which were on the ranch. The evidence of plaintiffs shows that only four sets were delivered when they took possession of the ranch and the personal property thereon. Plaintiffs' demand, composed of the items we have mentioned, is for a partial failure of the consideration defendant was to pay for the Kansas City property he received in the exchange.

The evidence relating to these items was conflicting, that of each party being substantial, and the trial court resolved all such conflicts in favor of the contention of plaintiffs. The court did not err in trying the cause alleged in the first count as an action in equity. The rule has always been recognized in this state that:

"Where a vendor parts with his land and receives in part payment of the same specific property of any kind, whether land, or notes, or mortgages, or any property whatsoever, upon a representation by the vendee as to its quality, character, or value, and such representation forms a material inducement for the vendor entering into the contract, and turns out to be false in fact and...