OPINION
BLAND, J.--
This
is an action for damages for fraud and deceit. At the close
of plaintiffs' testimony the court sustained
defendant's demurrer to the evidence, resulting in a
verdict and judgment in favor of defendant. Plaintiffs have
appealed.
The
petition alleges that plaintiffs, on the 20th day of May,
1920, were the owners of certain real estate in the City of
Trenton; that defendant--
".
. . being desirous of securing for himself the
above-described, property of the plaintiffs, and knowing that
plaintiffs were desirous of exchanging their property for one
more suitable to their needs, offered to purchase the
property of the plaintiffs and pay therefor the sum of $ 3050
which was $ 1350 more than the amount of the encumbrance on
plaintiffs' property. This offer plaintiffs refused. Then
the defendant promised and represented that he would purchase
a piece of property for the purpose of trading to the
plaintiffs and that he would fix its value in said proposed
exchange at the actual cost of that property to him. That in
pursuance of these promises, defendant W. A. Clem, purchased
a lot or tract of land" consisting of 2.94 acres in the
City of Trenton; that defendant paid the sum of $ 1650 for
the property last described and falsely and fraudulently
caused it to be recited in the deed by which he purchased it,
which deed was recorded in the office of the Recorder of Deeds of Grundy county, that the consideration
was the sum of $ 2250; that after the purchase of the
last-described property by the defendant, he entered into
negotiations with plaintiffs--
"for
an exchange of the said properties. Plaintiffs state that
they were ignorant of the amount which the defendant had paid
for his property; that the defendant intending to deceive the
plaintiffs and to induce them to enter into the contract,
falsely and fraudulently and for the purpose of defrauding
and deceiving the plaintiffs, knowingly and intentionally
concealed from the plaintiffs the fact that he had paid less
than $ 2250 for his property, and at that time well knowing
that had the plaintiffs known how much the defendant had
actually paid, plaintiffs would not have entered into the
exchange agreement, and that the defendant, W. A. Clem, for
the purpose of inducing the plaintiffs to make the exchange,
falsely and fraudulently represented to the plaintiffs that
he had paid therefor the sum of $ 2250 and that this
represented the cost price of the property to him and was the
reasonable value of the property, and that he was still
willing to carry out the oral agreement to let them have the
property at its cost price, and, that in letting them have
the property at $ 2250 that he was in fact carrying out his
oral agreement and that this was the cost price. Plaintiffs
further state that at that time the defendant knew that this
representation was false and that the recital in the deed as
above referred to, was false and were all made and done for
the purpose of defrauding the plaintiffs and in inducing them
to enter into the exchange agreement."
The
petition then alleges that prior to these negotiations
defendant by manifesting acts of kindness and good will in
various transactions with plaintiffs, had ingratiated himself
into their confidence and that by reason thereof they reposed
special confidence in the defendant--
"and
relied on his representations concerning the cost price of
the property and failed to make a thorough and complete
investigation as to the truth of the representation
concerning said cost price and by reason of such reliance
plaintiffs were induced to and did exchange properties with
the defendant.
"Plaintiffs
further state that the representations of the defendant that
he was and had carried out his oral promise to the plaintiffs
in trading them this land, at the price he paid for it, and
that the price he paid was $ 2250, and that the value was $
2250 were each and every one of them false, and known to be
false by the defendant at the time that they were made, or
were made by the defendant without any knowledge of their
truth or falsity, and with a reckless disregard to the truth
of the same;
that the property traded to plaintiffs was not of the value
of $ 1650; that this was the price actually paid for it by
the defendant and that the defendant had not carried out his
oral promise."
The petition asks for $ 600 actual and $ 5000
punitive damages.
Defendant's
answer denied "each and every allegation" contained
in the petition "except such as are hereinafter admitted
to be true." The answer then states:
"Defendant
further answering states, that during the month of May, 1920,
and while he was the owner of a house and lot containing
about three acres, in the north part of the City of Trenton,
plaintiffs were the owners of a property on Fourteenth street
in said city, and were anxious to exchange their property for
the defendant's property as they were in need of more
ground on the outskirts of the city, for themselves and the
livestock which they were then keeping. Thereupon, they
entered into negotiations which culminated in the exchange of
properties, but said deal was not closed, however, until
plaintiffs had fully examined and inspected defendant's
property.
"Thereafter
plaintiffs raised the value of their property on Fourteenth
street several different times, finally raising the same from
$ 2250 to $ 3050, a sum greatly in excess of its real value,
there being a mortgage upon plaintiffs' property, past
due, of about $ 1700 leaving plaintiffs' equity in said
property at the price agreed $ 1350 and at the same time
agreed to take defendant's property at $ 2250, the same
being clear of incumbrance.
"Defendant
says that instead of plaintiffs' reposing any special
confidence in defendant, they were thoroughly familiar with
said property and the value thereof, in fact knew the same
better than the defendant knew it, and they were ready,
willing and anxious to make the exchange of properties by
giving the necessary mortgage which would equalize the
equities in their property with the value of the
defendant's property. That said trade and exchange of
properties was afterward consummated and that plaintiffs have
sustained no damage thereby."
The
answer further states that plaintiffs did not make any claim
that they had been defrauded "for years thereafter"
and until they had made default in "every
provision" of a deed of trust given by them to defendant
on the property he traded them. It seems to be admitted that
a reply was filed consisting of a general denial.
There
was evidence tending to support all the allegations of the
petition with the exception that there was no evidence
introduced by plaintiffs tending to prove that defendant had
not paid the sum of $ 2250 for the property he traded to
plaintiffs as alleged in the petition. Plaintiffs'
evidence also showed that they were acquainted with the
property purchased of the defendant and at the time inspected
the same. There was no evidence to show any fiduciary
relation existing between the parties although there was some
evidence that defendant did certain acts of kindness for
plaintiffs and their children.
It is admitted that it must appear that
defendant had not paid the sum of $ 2250 for the property
purchased by him to be exchanged for plaintiffs'
property. While there is no testimony to that effect,
plaintiffs insist that that fact is admitted by the
pleadings. We think that this contention is well taken. The
allegations in the answer that defendant denied each and
every allegation contained in plaintiffs' petition
"except such as are hereinafter admitted to be
true" is faulty and cannot be considered as a general
denial and, consequently, the answer cannot be taken as
denying any of the matters in plaintiffs' petition except
those expressly denied. [Sec. 1232, R. S. 1919.] And there is
no express denial in the answer of the fact in controversy. A
qualified general denial of this nature has been
characterized as a "vicious method of pleading."
[Long v. Long, 79 Mo. 644, 650; Snyder v.
Free, 114 Mo. 360, 367, 21 S.W. 847; Young v.
Schofield, 132 Mo. 650, 662, 34 S.W. 497.] This
character of answer is criticized because it does not clearly
and unequivocally deny the existence of one or more of the
facts essential to the cause of action and it requires the
plaintiff and the court to resort to an analysis of the
pleading to ascertain what is denied and what is admitted.
[Cooper v. Ins. Co., 139 Mo.App. 570, 581, 123 S.W. 497.]
"It was never the design of the code that a party
plaintiff should have to carefully sift each denial of the
answer and to carefully compare it with each paragraph of the
petition in order to see what is admitted and what is denied.
Such denials may be general or they may be special, but in
either event the issue must be sharply defined, and not left
to surmise or conjecture. And notwithstanding a party
plaintiff may move to have the pleading of his adversary made
more definite and certain, yet he is not bound to do this;
that is the primary duty of the party drawing the pleading,
and the latter cannot cast that onus on his opponent
by failing to perform his own duty in the first instance, and
that duty consists in expressing his meaning...
