Montgomery v. Clem

• Decision Date: 05 April 1926
• Docket Number: No. 15625.,15625.
• Citation: Montgomery v. Clem, 282 S.W. 1051, 221 Mo.App. 486 (Mo. App. 1926)
• Parties: MONTGOMERY et al. v. CLEM.
• Court: Missouri Court of Appeals

282 S.W. 1051

MONTGOMERY et al. v. CLEM.

No. 15625.

Kansas City Court of Appeals. Missouri.

April 5, 1926.

Rehearing Denied May 3, 1926.

Appeal from Circuit Court, Grundy County; L. B. Woods, Judge.

Action by C. R. Montgomery and another against W. A. Clem. Judgment for defendant, and plaintiffs appeal. Reversed and remanded.

George E. Woodruff and Ruth C. Woodruff, both of Trenton, for appellants.

H. J. Bain and E. M. Harber, both of Trenton, for respondent.

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 $3,050, which was $1,350 more than the amount of the incumbrance 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 $1,650 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 $2,250. 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 $2,250 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 $2,250, 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 $2,250 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 $2,250, and that the value was $2,250 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 $1,650; 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 $5,000 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 live stock 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 $2,250 to $3,050, a sum greatly in excess of its real value, there being a mortgage upon plaintiffs' property, past due, of about $1,700, leaving plaintiffs' equity in said property at the price agreed $1,350, and at the same time agreed to take defendant's property at $2,250, 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 $2,250 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 $2,250 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. Section 1232, R. S. 1919. And there is no express denial in the answer of the fact in contraversy. 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...