Messerli v. Bantrup

• Decision Date: 01 December 1919
• Docket Number: No. 13368.,13368.
• Citation: 216 S.W. 825
• Parties: MESSERLI v. BANTRUP.
• Court: Missouri Court of Appeals

216 S.W. 825

MESSERLI v. BANTRUP.

No. 13368.

Kansas City Court of Appeals. Missouri.

December 1, 1919.

Appeal from Circuit Court, Moniteau County; J. G. Slate, Judge.

"Not to be officially published."

Action by Rudolph Messerli against John H. Bantrup. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

S. C. Gill and J. B. Gallagher, both of California, Mo., for appellant.

Embry & Embry, of California, Mo., for respondent.

TRIMBLE, J.

This Is an action to recover damages for fraud and deceit. Plaintiff and defendant agreed to exchange farms, plaintiff giving his farm of 80 acres at the price of $75 per acre for defendant's farm of 190 acres at the rate of $60 per acre, and paying defendant the difference based on the above rates and acreage. The trade was consummated and the difference paid. Plaintiff's farm was in Moniteau county, and defendant's was in Morgan county. The evidence in behalf of plaintiff clearly discloses that instead of there being 190 acres in defendant's farm there were only 182 and a fraction acres. No attempt was made to dispute the fact of this shortage. The case was submitted to the jury upon instructions given for the respective parties; but after the jury had deliberated upon the matter for several hours they were called into court, and asked if they had agreed upon a verdict, and upon ascertaining that they had not the court gave a peremptory instruction to find for plaintiff. In obedience to such instruction the jury returned a verdict for $1,676.40. Defendant has appealed.

It is urged that the petition does not state facts sufficient to constitute a cause of action, and that defendant's demurrer at the close of the case should have been sustained.

[] Imperfections in the petition, if there were any, do not entitle a defendant, at the close of all the evidence, to a demurrer, unless, indeed, the petition wholly fails to state any cause of action at all. Such was not the case.

[] Taken as a whole, with all the matters necessarily implied therein, the petition certainly stated a good cause of action. It disclosed that during the prior negotiations leading up to and culminating in the trade defendant represented and stated that his farm contained 190 acres; that plaintiff did not know what it contained, but relied upon defendant's representations, and did not discover the truth until long after the trade had been made; that defendant knew his farm did not contain 190 acres, knew that his representations in that regard were untrue, and knowingly and fraudulently misrepresented the number of acres, and thereby obtained from plaintiff payment on the full 190 acres at $60 per acre, made in full reliance on said fraudulent misrepresentations. The defendant's scienter is expressly stated, and the deceptive purpose of the fraudulent representations is plainly set forth, as well as the fact that plaintiff relied thereon, and was induced thereby to make the payment he did. Hoffman v. Gill, 102 Mo. App. 320, 324, 77 S. W. 146; McGhee v. Bell, 170 Mo. 121, 127, 70 S. W. 493, 59 L. R. A. 761; Fall v. Hornbeck, 132 Mo. App. 588, 112 S. W. 41; Kenney v. James, 50 Mo. 316.

[] The suit is not on the contract itself nor upon defendant's deed. It is on the fraudulent representations, whereby plaintiff was induced to enter into the contract and pay money he did not in fact owe. Hence the doctrine of merger of all prior and contemporaneous oral agreements in the deed has no application here. Leicher v. Keeney, 98 Mo. App. 394, 72 S. W. 145; Horne v. Hertel Co., 184 Mo. App. 725, 731, 171 S. W. 598; Crim v. Crim, 162 Mo. 544, 63 S. W. 489, 54 L. R. A. 502, 85 Am. St. Rep. 521; Hendricks v. Vivion, 118 Mo. App, 417, 94 S. W. 318.

[] Plaintiff did not have to sue on the deed nor rescind the contract. Carr v. Swift, 185 Mo. App. 86, 170 S. W. 914.

Plaintiff's farm was in one county, defendant's in another. Plaintiff saw it for the second time when he executed the contract. He did not go over all of it, but could see over it, as it was " comparatively level land. The evidence in his behalf shows that he did not know the land was short, but relied upon what was stated to him in that regard. There was not such a disparity between the amount represented and the actual number of acres as to disclose the shortage to one looking over the land.

[] The mere fact that the shortage could have been discovered had plaintiff demanded a survey does not release defendant of liability nor convict plaintiff of negligence so as to make it, and not the alleged fraud, the cause of plaintiff's loss. Kelley v. Peeples, 192 Mo. App. 435, 182 S. W. 809; Judd v. Walker, 114 Mo. App. 128, 143, 89 S. W. 558; Id., 215 Mo. 312, 114 S. W. 979.

There is ample evidence in plaintiff's behalf tending to show that long before the trade was made, and while defendant owned the land, he well knew his land was short, and also evidence that he intended, whenever he went to sell it, to unload the shortage on "the other fellow."

There is no dispute over the fact that the farms were exchanged on the basis of the acreage and prices per acre hereinabove stated. But the evidence in defendant's behalf is to the effect that he did not know his land was short of 190 acres; that defendant told plaintiff the first time he came to look at the land that, as well as he knew, he had 190 acres; and that he said to plaintiff:

"Now, before we go any further, I have been told that this land, a part of it, has fractional forties. Now, I don't know whether it is long or short, but I bought it for one hundred and ninety acres, more on less, and that is the way I will have to deed it."

In view of this testimony, it seems to us that it cannot be said defendant conceded he had misrepresented the amount of his land. Nor does it conclusively appear that plaintiff was induced to make the trade by representations that the farm contained 190 acres.

[] Neither does the admission that the farms were exchanged on the above-named basis entirely destroy the effect of the above-quoted testimony. For, in view of the claim that defendant made the above-quoted statement to plaintiff when they entered upon the negotiations, the respective valuation per acre placed on the two farms may have been not only a method of arriving at what the difference in money should be on a trade, but also a way of stating what the defendant was insisting upon getting for his farm without regard to whether it contained 190 acres or not. To illustrate: A man in answer to a proposal to buy his lot says: "I will sell it on the basis of $100 a front foot for 100 feet. I don't know whether there is 100 feet or not. I have been told there is not; but whether there is or not, I must sell, it that way. You must pay me $100 a foot for 100...