Nauman v. Oberle

• Decision Date: 14 February 1887
• Parties: Nauman v. Oberle, Appellant
• Court: Missouri Supreme Court

3 S.W. 380

90 Mo. 666

Nauman v. Oberle, Appellant

Supreme Court of Missouri

February 14, 1887

Appeal from Ste. Genevieve Circuit Court. -- Hon. J. D. Foster Judge.

Affirmed.

John H Nicholson and Thomas B. Whitledge for appellant.

(1) Appellant alleges in his answer, and offered evidence tending to prove, "that said plaintiff paid to the defendant the said consideration of thirteen hundred dollars for said hides, tallow, and sheep-pelts after having counted and received delivery and having full knowledge of the number of said hides." This stated a complete defence to plaintiff's cause of action, for the reason: Said payment being made with a full knowledge of all the facts and circumstances that there was a less number of hides than he bought, and well knowing he was under no legal obligation to pay it, must, therefore, be regarded as a voluntary payment. "Where money is paid without fraud or duress with a full knowledge of all the facts in the case it cannot be recovered back." Claflin v. McDonough, 33 Mo. 412; Ramsey v. Hays, 39 Mo. 445; Adams v Reeves, 68 N.C. 134; Courtney v. Boswell, 65 Mo. 196, 202; State v. Powell, 44 Mo. 436; Christie v. St. Louis, 20 Mo. 143; Walker v. St. Louis, 15 Mo. 563; Draper v. Ousley, 15 Mo. 613. (2) The said payment under the aforesaid circumstances and without making any claim for alleged deficiency constituted a complete accounting and settlement, and in the absence of fraud in procuring the said accounting and settlement, or ignorance of his rights when the same was made, said accounting and settlement binds plaintiff and cannot be re-opened. Pickel v. St. Louis C. of C. Ass'n, 80 Mo. 65; Kroenberger v. Binz, 56 Mo. 121; Quinlin v. Keiser, 66 Mo. 603; Galbreath v. City of Moberly, 80 Mo. 484.

William Carter and Smith, Silver & Brown for respondent.

The fact that the plaintiff omitted to count said hides, or did not examine into the number of them for himself, instead of relying on defendant's representations, did not relieve defendant of liability for false representations made by him concerning the number of hides sold plaintiff. Caldwell v. Henry, 76 Mo. 254; Wannell v. Kem, 57 Mo. 478; Langdon v. Given, 49 Mo. 367. A party defrauded in a contract has his election of remedies. He may stand to the bargain, even after he has discovered the fraud, and recover damages on account of it; and where a party has been defrauded by another in making an executory contract, a subsequent performance of it on his part, even with the knowledge acquired subsequently to the making and previous to the performance, will not bar him of any remedy for the recovery of damages. Parker v. Marquis, 64 Mo. 38; Whitney v. Allen, 4 Denio, 554; 2 Kent Com. 480; Long on Sales, 214-16.

Norton, C. J. Brace, J., absent.

OPINION

Norton, C. J.

This is a suit to recover damages, in which the petition, in substance, alleges that plaintiff bought of defendant a quantity of hides, tallow and sheep pelts for the price and sum of thirteen hundred dollars; that defendant falsely, fraudulently and deceitfully represented and guaranteed that the number of hides so sold was not less than three hundred and forty, when in truth and in fact the number was only two hundred and fifty-nine; that plaintiff, relying on the representations and guarantees of defendant, bought the said hides, etc., at the above price and paid for them. The answer denies that any such representations or warranty were made and avers that plaintiff paid the said consideration of thirteen hundred dollars after having received delivery and counted the hides, and with full knowledge of their number. It appears from the evidence that at the time of the purchase plaintiff paid defendant five dollars, and received the property and thereafter sold it to a third party, and in counting the hides the fact was ascertained that the number of them was only two hundred and fifty-nine, and that with a knowledge of this fact, thus ascertained, plaintiff paid defendant the balance of the purchase price.

On the trial plaintiff obtained judgment, from which the defendant has appealed and assigns for error the action of the court in giving and refusing instructions. On the part of plaintiff the court instructed the jury to the effect that, if they believed that defendant falsely and fraudulently represented the number of the hides to be not less than...