Myers v. Adler
| Decision Date | 05 April 1915 |
| Citation | 176 S.W. 538,188 Mo.App. 607 |
| Parties | ISRAEL V. MYERS and SARAH C. MYERS, his wife, Appellants, v. HERMAN C. ADLER, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Jos. A. Guthrie, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Park & Brown for appellants.
(1) Defendant was bound to exercise ordinary care to correctly ascertain and accurately report to plaintiffs the facts about the Kansas farm. Switzer v. Connett, 11 Mo. 88, 89; 31 Cyc. 1456, 1459, 1460; 4 Am. & Eng. Ency. Law (2 Ed.) 968. (2) Defendant was in a fiduciary relation to plaintiffs and was bound to act with the utmost loyalty and good faith. Failure to do so renders him liable. Van Raalte v Epstein, 202 Mo. 173; Anderson v. Wheeler, 125 Mo.App. 406; Dennison v. Aldrich, 114 Mo.App. 700 708; Switzer v. Connett, 11 Mo. 88, 89; 31 Cyc. 1430. The allegations of the second count make out a case of actionable fraud and deceit. Stonemets v. Head, 248 Mo. 243, 255, 268; Burger v. Boardman, 254 Mo. 238, 252. (3) Counsel fees and other expenses necessary to annul the contract and protect plaintiffs from the consequences of defendant's wrongs are recoverable. Duncan v. Turner, 171 Mo.App. 661, 678; Acker, etc., Co. v. McGaw, 111 Md. 153, 73 A. 731; Hawes v. Birkholz, 114 N.Y.S. 765; Curtley v. Saw. Soc. , 46 Wash. 50, 89 P. 180. (4) If plaintiffs were liable to their counsel for fees, they may recover from defendant though the fees had not been paid when they instituted their action. Leisse v. Railroad, 72 Mo. 561, 2 Mo.App. 105, 118; Spengler v. Transit Co., 108 Mo.App. 329; Wilbur v. Railroad, 110 Mo.App. 689, 695. (5) Expenses incurred in the effort to reduce the loss caused by defendant's act are proper elements of damage. Dietrich v. Railroad, 89 Mo.App. 36; Logan v. Railroad, 96 Mo.App. 461; 13 Cyc. 78. (6) There was no misjoinder of causes of action. Both counts grew out of the same transaction and both are for injuries to property. R. S. Mo. 1909, sec. 1795. (7) Plaintiffs could not be lawfully compelled to elect between the respective counts, the one based on negligence and the other upon wilfulness or fraud. Waechter v. Railroad, 113 Mo.App. 270, 278. (8) There was no misjoinder of parties plaintiff. Both plaintiffs employed the defendant, both signed the contract complained of, both were sued by the Hixsons, both incurred the expense. The cause of action is joint. Even though the title was held by ordinary deed to Mrs. Myers, Mr. Myers had an interest in the property. Landy v. Kansas City, 58 Mo.App. 141, 144; Brownlee v. Fenwick, 103 Mo. 420.
Griffin & Orr for respondent.
(1) Plaintiff's petition does not state any facts sufficient to constitute any cause of action. Champion Foundry Co. v. Heskett, 125 Mo.App. 516; Ryan v. Miller, 236 Mo. 496; Brown v. Mining Co., 194 Mo. 681. (2) Defendant did not file nor instigate the filing of the specific performance suit nor the lis pendens. Duncan v. Turner, 171 Mo.App. 661; Harrison v. Craven, 188 Mo. 590; Turner v. Gibbs, 50 Mo. 556; 13 Cyc. 25 et seq.; 31 Cyc. 1469. (3) Attorney's fees are not recoverable as damages. Kendrick v. Ryus, 225 Mo. 150; Kaufman v. Davis, 161 S.W. 1181; Brewing Assn. v. St. Louis, 168 Mo. 37; 13 Cyc. 80-82. (4) There is a misjoinder of causes of action. The first count is founded ex contractu. The second count is founded ex delicto. Pridemore v. Fife, 165 S.W. 1155; Jordan v. Transit Co., 202 Mo. 418; Southworth Co. v. Lamb, 82 Mo. 247.
Herein an agent is sued by his principals for loss occasioned by the alleged violation of the agent's duty to them. The trial court sustained an objection to the introduction of evidence on the ground that the petition stated no facts sufficient to constitute a cause of action. Thereupon, in due time, plaintiffs appealed.
Where no demurrer has been filed, but the attack is made on the petition by an objection to the introduction of evidence after the trial has begun, the pleading is entitled to the benefit of every intendment in its favor. [Downs v. Andrews, 145 Mo.App. 173, 130 S.W. 472.] To justify such an attack, the petition must be so fatally defective as to state no cause of action at all, so that, if a judgment was rendered thereon, a motion in arrest would lie. [Donaldson v. Butler County, 98 Mo. 163, 11 S.W. 572; Roberts v. Walker, 82 Mo. 200.] Even if certain necessary allegations are not expressly averred in the petition, yet if they are necessarily implied by what is expressly stated, the objection thereto should be made by motion and not by an objection to the introduction of evidence. [Murphy v. North British etc. Ins. Co., 70 Mo.App. 78.] If, therefore, the facts alleged in the petition are sufficient to present a situation from which all the essential elements necessary to a recovery are stated or appear by necessary implication, the pleading should be held good as against a mere objection to evidence thereunder even though the petition might perhaps be thought to be somewhat loose and indefinite in some of its statements. But when we consider the relation existing between plaintiffs and defendant--that of principal and agent--we think the petition was not lacking in its statement of the essential facts necessary to recovery. The principal has a right to rely upon the care, skill, diligence and loyalty of his agent. And the agent in turn owes those duties to his principal. Therefore, a presentation of the facts showing the relation existing between the parties, the duties owed by the defendant to the plaintiffs by reason of that relation, the violation of those duties by the agent and the loss resulting to plaintiffs by reason of that violation, states a good cause of action for damages by principal against his agent. And this we think the petition in this case does.
The first count alleges that plaintiffs owned certain real estate in Kansas City worth $ 20,000; that defendant was a real estate broker and held himself out to the world, and especially to plaintiffs, as possessed of peculiar knowledge and judgment in ascertaining the values of real property in western Missouri and eastern Kansas; that plaintiffs, believing him to be possessed of such knowledge and judgment employed him to effect an exchange of their property for income producing farm land of good quality worth the value of plaintiffs' property, and they relied upon defendant to effect such exchange and to inform them accurately and truthfully concerning the quality and value of any property he might bring to their attention. Said count further charges, in effect, that defendant had charge of and entered upon negotiations with certain parties in Brown county, Kansas to exchange their farm in that county for plaintiffs' property and that defendant represented plaintiffs in these negotiations; that defendant negligently failed to ascertain the true facts concerning the Kansas land, but negligently stated to plaintiffs that the proposed exchange would be of great profit to them, that he knew the Kansas land was a splendid farm worth $ 25,000 over and above the incumbrance on it, that it was the best farm in that section, a good stock and grain farm with not over three and a half to four acres of waste land on it, and that defendant advised and urged plaintiffs to enter into a contract with the Kansas parties to exchange properties; that relying upon defendant's superior knowledge and judgment plaintiffs were induced by defendant to enter into a contract with said Kansas parties, and did execute said contract, whereby plaintiffs agreed to exchange their property for the Kansas property under certain terms in said petition stated. The said first count further alleged that said farm was not a good farm but was of white ashy soil only a part of which was tillable and that of inferior character producing meagre crops of poor quality, and the rest being waste land with thin or no soil, cut up by creeks and draws and consisting of rough and unproductive timber land, all underlaid with hard pan, much of it covered with gravel and of small value, the whole worth far much less than plaintiffs' property; that about two weeks after having entered into the contract, plaintiffs learned the facts and thereupon notified the opposite parties to the contract that they rescinded same and refused to convey their property thereunder; that thereupon the Kansas parties to said contract brought suit against plaintiffs for specific performance thereof and filed a lis pendens in the recorder's office whereby plaintiffs' title to their property has been clouded; that plaintiffs were compelled to defend said suit and in doing so were required to expend and obligate themselves to pay $ 2000 for counsel fees, witness fees, costs of depositions and other litigation expenses to annul said contract, and that said suit resulted in a final decree in favor of plaintiffs herein; wherefore plaintiffs pray judgment in the sum of $ 2000 and costs.
The second count set forth practically the same facts except that defendant was charged with having entered into a conspiracy with certain persons to deceive plaintiffs as to the quality of said Kansas land and cause plaintiffs to believe that it was a good and valuable farm and induce plaintiffs to exchange their valuable property for the worthless Kansas land; that defendant told plaintiffs that he had been on the farm in Kansas and was well acquainted with it; that it was the best farm in that section, the improvements were absolutely good, that the proposal to exchange properties would be the best bargain plaintiffs ever made, that he was a farmer and knew what good land was, that there were not over four acres of waste land in the entire farm with no hard pan or gumbo...
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