Moody v. Baxter

• Decision Date: 09 December 1912
• Parties: C. G. MOODY, Respondent, v. FRANK E. BAXTER et al., Appellants
• Court: Kansas Court of Appeals

152 S.W. 117

167 Mo.App. 521

C. G. MOODY, Respondent, v. FRANK E. BAXTER et al., Appellants

Court of Appeals of Missouri, Kansas City

December 9, 1912

Appeal from Jackson Circuit Court.--Hon. Jas. H. Slover, Judge.

REVERSED.

Judgment reversed.

A. F Sherman, J. P. Fontron and W. V. Thompson for appellants.

R. B Caldwell and Spencer F. Harris for respondent.

OPINION

ELLISON, J.

Plaintiff 's action is for fraud and deceit. He recovered judgment in the circuit court for $ 4333.33.

The action arose out of contract of sale or exchange. Plaintiff owned a stock of groceries in Wichita, Kansas, which he wished to sell or exchange. He saw an advertisement which he thought might lead to some satisfactory result and in looking into it he came across one Wilhite, who was a real estate broker. Nothing came of their first efforts, until finally Wilhite got him into communication with defendants, looking to the exchange of the grocery store for $ 8000 in the bonds of the Paola and Osawotomie Light & Fuel Company, a Kansas corporation operating in the gas fields in that State. An exchange was made on the basis of the invoice of the grocery store, amounting to $ 4750, and plaintiff's note for $ 3250, for which plaintiff received the bonds for $ 8000 par value. Plaintiff afterwards concluded, and so alleges, that the bonds were not worth in money more than $ 2000, and he claimed damages in the sum of $ 6000.

The facts, which we have mostly ascertained from plaintiff's testimony, are that he claims the bonds were fraudulently misrepresented to him by defendants to be of par value. We may concede that in truth, their value was largely overstated. But that leaves the question whether any fraud was practiced; and in determining that we have necessarily to keep in mind what conduct the law deems to be fraudulent in the negotiation of an exchange of properties. An assertion of value is, ordinarily, treated as not a fraudulent feature in the make-up of a trade. It is a license each party takes, knowing that the other is not believing him; and therefore common experience is that men get information from accessible independent and disinterested sources before they get so far along as to close the bargain. In exceptional cases and in peculiar circumstances, a statement of value is meant to be an assertion of positive fact upon which an action for fraud may be based. [Chase v. Rusk, 90 Mo.App. 25.] But "if the buyer trusts to representations which are not calculated to impose upon a man of ordinary prudence, or if he neglects the means of information easily in his reach, he must suffer the consequences of his own folly." [Dunn v. White, 63 Mo. 181; Brown v. South Joplin Lead & Zinc Mining Co., 194 Mo. 681, 92 S.W. 699; Wilson v. Jackson, 167 Mo. 135, 66 S.W. 972; Holbrook v. Connor, 60 Me. 578.] The latter case involving a representation that certain land contained large deposits of oil.

Plaintiff was not an inexperienced novice. While he stated he was engaged in farming in Oklahoma, yet he was a man of business and some means as well and this had not been his only trade. He and defendants were strangers. They never asked and necessarily, did not have his confidence, and we do not see any substantial evidence showing an attempt to deceive him. He was not sought...