Meyer v. Brown

Decision Date07 April 1958
Docket NumberNo. 22741,22741
Citation312 S.W.2d 158
PartiesL. H. MEYER, Respondent, v. Ted A. BROWN, Appellant.
CourtMissouri Court of Appeals

D. S. Lamm and Lawrence Barnett, Sedalia, for appellant.

Leo J. Harned and George H. Miller, Sedalia, for respondent.

MAUGHMER, Commissioner.

This is a suit for damages arising from alleged fraud and misrepresentation in the sale of a large lot of used storage batteries by defendant to plaintiff. There was a jury verdict for plaintiff in the sum of $2,850. Judgment for such amount was entered. Defendant's motion for new trial was overruled and he appealed.

On this appeal two assignment of error are presented. First, that the Court erred in overruling defendant's motions for directed verdict offered at the close of plaintiff's evidence and filed again at the close of all the evidence. Second, that the Court erred in giving Instruction No. 1.

Plaintiff's petition alleged that on November 15, 1955, he purchased a number of storage batteries from defendant for the sum of $5,750; that defendant represented to plaintiff there were at least 3,000 batteries in the lot; that such representation was false and defendant knew it was false; that plaintiff relied thereon and purchased the batteries upon the assumption that defendant's statements in regard to the number were true; that in truth and fact there were only 1,786 batteries in the lot, and the reasonable value of the shortage (1,214) was $3,000. Defendant's answer was a general denial.

Plaintiff testified that he was 61 years old, had a fourth grade education, and had operated a junk yard outside of Sedalia, Missouri, since 1913. He said he formerly worked for defendant's father and 'had done lots of business' with defendant. Ted Brown, the defendant, operated an automotive service business in Sedalia. This business included a machine shop, repair garage and the selling of automobile parts, including batteries. Plaintiff stated that on November 15, 1955, having learned defendant had a stock of used batteries for sale, he visited defendant's place of business for the purpose of trying to buy the batteries. He saw them in defendant's paint and body shop stacked up in a pile approximately 60 feet long, 8 feet high and 6 feet wide; that some of the batteries were so heavy one man could not lift or load them. Plaintiff then had his son Otto come over. They measured the pile and Otto, in defendant's presence, said: 'There ain't but about 1,800'; that defendant replied: 'There was 2,800 a year ago, and we invoiced them and had 2,800 a year ago, and we have been putting more on the pile ever since; there ought to be 3,000 or 3,500'. Plaintiff said he knew he could get about $2.35 apiece for the batteries and 'I just took his word; that was all there was to it'. The parties agreed that the sale was consummated about 2:00 or 2:30 p. m. on November 15, 1955, and at that time plaintiff gave defendant his check in the sum of $5,750, drawn on the Bank of Ionia, located in Benton County, and some miles from Sedalia. On the following day, November 16, 1955, plaintiff testified that they started loading the batteries; that by count the number totalled only 1,784; that on discovery of this fact he looked for defendant but did not find him; that he 'told the bank to stop the check, but he had done took the check down that same evening I gave it to him'. Plaintiff said defendant told him 'lots of times' there were at least 3,000 batteries in the pile.

Otto Meyer, plaintiff's son, 39 years old, said he was present when his father was looking at the batteries; that he 'measured the batteries with a yardstick and I figured there was around 18 or 19 hundred, but Mr. Brown said they took inventory a year ago and it was 2,800 then when they took the inventory and he knowed there was more than that, so I didn't argue about it'. He said his father ordered two freight cars on the basis of 3,000 batteries, but all were loaded in one car. This witness said he heard defendant say several times 'there was 2,800 when they took inventory the last time and he knew there was over 3,000 batteries there now'.

Chester Burke helped load the batteries. While the loading was in progress he said he heard defendant and Mrs. Meyer, the plaintiff's wife, arguing about the number of the batteries,--Mrs. Meyer saying there were not 3,000, and defendant saying there were 3,000 or more. Mrs. Meyer testified as to this argument and as to defendant's alleged statements.

Clarence Schnabel, banker at Ionia, stated that on the afternoon of November 15, 1855, defendant called him about the check, said he would bring it down that afternoon; that he did bring it to the bank that afternoon, cashed it and received a bank draft therefor.

Defendant denied making the alleged representations as to the number of batteries and said he sold them to the plaintiff as a pile of batteries.

Defendant contends that his motion for a directed verdict should have been sustained because no submissible case was made. He says that plaintiff had the means readily within reach to determine how many batteries were in the pile; that plaintiff's son Otto actually did give a most accurate estimate; that plaintiff could have counted the batteries and that under these circumstances plaintiff had no right to rely upon the alleged misrepresentations.

In testing the sufficiency of the evidence to make out a case submissible to a jury upon motion for a directed verdict a plaintiff's evidence must be considered true and the plaintiff given the benefit of every inference of fact which can reasonably be drawn therefrom. Nash v. Normandy State Bank, Mo., 201 S.W.2d 299; Lowry v. Mohn, Mo., 195 S.W.2d 652.

The essential and fundamental elements of an action for fraud have many times been stated by our appellate courts. The rule, as stated, in 37 C.J.S. Fraud Sec. 3, page 215, is as follows: 'Comprehensively stated, the elements of actionable fraud consist of: (1) A representation. (2) Its falsity. (3) Its materiality. (4) The speaker's knowledge of its falsity or ignorance of its truth. (5) His intent that it should be acted on by the person and in the manner reasonably contemplated. (6) The hearer's ignorance of its falsity. (7) His reliance on its truth. (8) His right to rely thereon. (9) And his consequent and proximate injury'.

This rule has been approved generally in the following cases: Lowther v. Hays, Mo., 225 S.W.2d 708; Nash v. Normandy State Bank, supra; Wolf v. Kansas City Tire & Service Co., Mo.App., 257 S.W.2d 408; Salmon v. Brookshire, Mo.App., 301 S.W.2d 48. There must be substantial evidence as to each of these essential elements, otherwise a plaintiff is not entitled to go to the jury and a recovery would not be permitted to stand.

It is true, of course, that where a party fails to avail himself of means of knowledge readily within his reach or equally available to him, he cannot effectively complain if he is defrauded. Defendant has invited our attention to some cases so holding, namely: Weitzman v. Weitzman, Mo., 156 S.W.2d 906, involving sale of corporate stock by one brother to another, where each already owned a part of the stock and each had equal opportunity to know its worth. Conklin v. Missouri Pacific R. Co., 331 Mo. 734, 55 S.W.2d 306, turning on the statement of a physician who had been treating plaintiff and where the physician was readily available to the plaidntiff, and Davis v. Phoenix Ins. Co., 81 Mo.App. 264, loc. cit. 266, where the court said: 'An action for false representation and deceit will not lie where the plaintiff had equal knowledge with the other party as to the subject-matter, or means of knowledge easily within his reach'.

But those cases do not fit our case and this rule does not apply where the defects are latent, are not readily discoverable, or are not such as would be encompassed by the doctrine of caveat emptor. We find the following statement in 37 C.J.S. Fraud Sec. 34, pp. 279 and 280: 'However, the mere presence of opportunities for investigation will not of itself preclude the right of reliance; and this is especially true where the circumstances were such that a prudent man would not have been put on inquiry, as where positive statements were made in a manner not calculated to cause inquiry, where the relations between the parties were involuntary, where, although it was possible to ascertain the facts, an investigation would have been difficult, or where there was intentional fraud, as where the representations were made for the very purpose of preventing inquiry; * * *.

'The right to rely on representations is generally conceded where the hearer lacks equal facilities for ascertaining the truth, as where the facts are peculiarly within the knowledge of the speaker and are difficult for the hearer to ascertain, as where...

To continue reading

Request your trial
16 cases
  • Cannon v. Bingman
    • United States
    • Missouri Court of Appeals
    • February 28, 1962
    ...element of fraud is fatal. Citing Euge v. Blase, Mo.Sup., 339 S.W.2d 807; Salmon v. Brookshire, Mo.App., 301 S.W.2d 48; and Meyer v. Brown, Mo.App., 312 S.W.2d 158. The law as declared in these authorities is found in Meyer v. Brown, supra, page 160, which quotes from 37 C.J.S. Fraud Sec. 3......
  • Crues v. KFC Corp.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • April 13, 1984
    ...project was reasonably available and that Crues failed to use ordinary care in not availing himself of such knowledge. Meyer v. Brown, 312 S.W.2d 158, 160 (Mo.App.1958). The evidence to which KFC points, however, demonstrates at best that there was conflicting proof as to Crues's right to r......
  • Shechter v. Brewer, 23135
    • United States
    • Missouri Court of Appeals
    • March 6, 1961
    ...under specific authority of Monsanto Chemical Works v. American Zinc, Lead and Smelting Co., Mo.Sup., 253 S.W. 1006, and Meyer v. Brown, Mo.App., 312 S.W.2d 158--fraud actions in which this precise question was determined. The contention has no Complaint is also made of plaintiffs' Instruct......
  • MCI Metro Access Transmission Services, Inc. v. City of St. Louis
    • United States
    • Missouri Court of Appeals
    • February 11, 1997
    ...waiver from conduct, the conduct must be clear, unequivocal, and decisive, showing a purpose to relinquish the right. Meyer v. Brown, 312 S.W.2d 158, 162 (Mo.App. W.D.1958); Heintz v. Swimmer, 811 S.W.2d 396, 399 (Mo.App. E.D.1991). The conduct must be "so manifestly consistent with and ind......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT