Patton v. Penquite

• Decision Date: 10 December 1888
• Citation: 32 Mo.App. 595
• Parties: JOHN PATTON, Respondent, v. JOSEPH J. PENQUITE, Appellant.
• Court: Kansas Court of Appeals

32 Mo.App. 595

JOHN PATTON, Respondent, v. JOSEPH J. PENQUITE, Appellant.

Court of Appeals of Missouri, Kansas City.

December 10, 1888

Appeal from Pettis Circuit Court. --HON. RICHARD FIELD, Judge.

REVERSED AND REMANDED.

The case is stated in the opinion.

B G. Wilkerson and John Montgomery, Jr., for the appellant.

(1) The court erred in giving plaintiff's third instruction which told the jury that plaintiff's measure of damages is the value of the property he traded and the amount of the note he gave, amounting together to two thousand dollars with six per cent. interest from the sixteenth day of October, 1884, to date. Anslyn v. Frank, 8 Mo.App 242; Stiles v. White, 8 Mo. 356. (2) This instruction was erroneous on any theory of damages in assuming that the value of the property traded by plaintiff to defendant was worth eighteen hundred dollars; there being no evidence to this effect. (3) If the defendant did not represent that these notes were secured by a first deed of trust, but did falsely represent that there was a chattel mortgage on the crop to secure the first year's interest on the notes in question, then the measure of plaintiff's damages could in no event exceed the value of the crop. The court, therefore, erred in giving the fourth instruction given at the instance of the plaintiff which told the jury that the measure of plaintiff's damages was one year's interest at eight per cent. on two thousand dollars, to-wit, one hundred and sixty dollars with six per cent. interest from August 15, 1884, to this date. (4) This fourth instruction is also erroneous for the reason that there was not a word of testimony as to the value of said crop except the incidental remark of the witness Hall, to the effect that the crop was an entire failure. The court erred in overruling defendant's motion for a new trial.

E. J. Smith, for respondent.

(1) The only objection appellant makes to the instructions is as to the measure of damage. He relies on cases where the vendee retains the property purchased, and sues for false representations as to value. Such cases do not apply here, for here the plaintiff got nothing. The notes and mortgage he got were worthless, and then defendant and Hall gave them up to Eubanks, the maker, and entered the mortgage satisfied. Defendant did this, not only with full knowledge that he had defrauded plaintiff, but with knowledge that plaintiff had found it out and was complaining about it. And, too, after he had said he would give up the two hundred dollars to pacify plaintiff, but had not done so, and the trade between plaintiff and Hall had failed on that account, as defendant well knew. This is a case where plaintiff was deprived of his property and defendant got it, all by the fraud of defendant, and plaintiff got nothing for it, and the measure of damage is just the value of the property plaintiff was thus deprived of. The law truly is that if a vendee will affirm the contract he may sue for damages for deceit. But if he will repudiate the contract, he must return what he got and sue to recover back the purchase money paid. Here plaintiff does the latter, only he is not required to return the notes to defendant because they were left with defendant and by his knowledge and consent, and ratified by him when he entered the mortgage satisfied, they were surrendered to the maker and cancelled, he does not have to give them up to defendant. (2) But whether this be one form of action or the other, under the evidence the measure of damage is the same, and the only criticism there can be, is one as to the way of expressing it. " Case for deceit does not imply that the article is worthless. It may be worthless, and then the vendee may recover for an amount equal to the price of the article." Schultz v. Christman, 6 Mo.App. 338, 343, and cases; Brownlee v. Hewitt, 1 Mo.App. 360. (3) But even taking the highest value that can be claimed for the land under the evidence, twenty-five dollars per acre, it is only worth six thousand dollars, then deduct the principal of the first mortgage, without the then accrued interest, leaves but three thousand dollars to secure the four thousand dollars of notes, one-half of which plaintiff bought, not counting interest on them. This, on the theory defendant insists on, would allow plaintiff to recover five hundred dollars. He recovered less than that (three hundred and seventy-five dollars) and defendant cannot complain in such a case. Alderman v. Cox, 74 Mo. 78; Austin v. Railroad, 23 Cent. Law Jour., July 22, 1886, addenda. (4) This court will not reverse a judgment unless it appears that error was committed materially affecting the merits of the action. R. S., secs. 3775, 3785. No such error is apparent here. (5) As to the value of the property conveyed by plaintiff to defendant, it is enough that they counted it worth eighteen hundred dollars in the trade, until the contrary is shown. The jury did not find on the instructions relating to the chattel mortgage and defendant is not harmed thereby. (6) The instructions for defendant put the case to the jury in a very favorable light for him, more so than he was fairly entitled to. Defendant has no ground of complaint as to the instructions in this case.

ELLISON P. J.

The defendant Penquite and one A. J. Hall jointly owned four...