Patzman v. Howey

• Decision Date: 14 December 1936
• Docket Number: 32210
• Citation: 100 S.W.2d 851,340 Mo. 11
• Parties: Dr. F. F. Patzman v. William J. Howey, Appellant
• Court: Missouri Supreme Court

100 S.W.2d 851

340 Mo. 11

Dr. F. F. Patzman v. William J. Howey, Appellant

No. 32210

Supreme Court of Missouri

December 14, 1936

Appeal from Jackson Circuit Court; Hon. Clarence A. Burney Judge.

Reversed and remanded.

Henry S. Conrad, L. E. Durham and Hale Houts for appellant.

(1) The court erred in admitting evidence of oral representations and the delivery of literature, by Johnson, Tutt, Major and Bryson, to plaintiff, prior to the execution of his land contract and natal hay contract. (a) The claimed oral representations to plaintiff as to the ownership of the land in question, development of the land in the vicinity and the natal hay that it would produce and the literature about Lake County, Florida, land given to plaintiff by Johnson, Tutt and Major were not binding upon defendant and were inadmissible in plaintiff's action for alleged fraud and deceit on the part of defendant. Ray County Savs. Bank v. Hutton, 224 Mo. 42; Wolfersberger v. Miller, 327 Mo. 1165; Hoover v. Wise, 91 U.S. 308; 6 C. J., 641. (b) The oral representations and literature in respect to the proposed development of the land and the production and returns that could be obtained from clearing and sowing it to natal grass were promissory in character and in the nature of opinions and did not constitute representation of facts which could be made and submitted as the basis of actionable fraud. Younger v. Haze, 211 Mo. 444; Stonemetz v Head, 248 Mo. 263; McBryan v. Ry. Co., 292 Mo 535; Paving Co. v. Investment Co., 309 Mo. 663; Stevens v. Smotherman, 223 Mo.App. 1078; Abbott v. Miller, 41 S.W.2d 900; Stoltzfus v. Howey, 54 S.W.2d 506; Bank v. Hutton, 224 Mo. 64. (c) The court erroneously admitted evidence of representations, orally and in literature, outside of the issues. Stoltzfus v. Howey, 54 S.W.2d 507; Parker v. Marquis, 64 Mo. 42; Dillon v. Hill, 178 S.W. 86; Degonia v. Ry. Co., 224 Mo. 588; State ex rel. v. Ellison, 270 Mo. 652; Kitchen v. Mfg. Co., 323 Mo. 1197; Gandy v. Ry. Co., 329 Mo. 468; Gilliland v. Bondurant, 59 S.W.2d 686; Pevesdorf v. Light & Power Co., 64 S.W.2d 947. (d) Evidence of representation that the Howey Company owned the land and that plaintiff relied upon such representation was inadmissible because plaintiff was estopped and precluded by his land contract from contending that there was any representation of ownership, as distinguished from control or interest, in the land sufficient to cause the same to be conveyed to plaintiff upon plaintiff's completing his payments. Fuchs v. Leahy, 321 Mo. 56; McPherson v. Kissee, 239 Mo. 669; Rock Island Implement Co. v. Wally, 268 S.W. 913; Bradford v. Wright, 145 Mo.App. 623. (2) The court erred in giving plaintiff's Instruction 1. (a) It was error to submit representations of the ownership of the land by the Howey Land Company as actionable misrepresentation. (b) Any issue of representation of ownership in the Howey Land Company beyond the ability to deliver to plaintiff a fee simple title to the land was outside of and contrary to the allegations of the petition. Degonia v. Ry. Co., 224 Mo. 588; State ex rel. v. Ellison, 270 Mo. 652; Kitchen v. Mfg. Co., 323 Mo. 1197; Gandy v. Ry. Co., 329 Mo. 468; Gilliland v. Bondurant, 59 S.W.2d 686; Pevesdorf v. Light & Power Co., 64 S.W.2d 947; Parker v. Marquis, 64 Mo. 42; Dillon v. Hill, 178 S.W. 86. (c) The representations were testified to and submitted as made by agents of the Howey Land Company and there was no evidence that defendant, W. J. Howey, had any knowledge of or participated in any representations or misrepresentations as to ownership of the land. Ray County Savs. Bank v. Hutton, 224 Mo. 42; Wolfersberger v. Miller, 327 Mo. 1165; Hoover v. Wise, 91 U.S. 308; 6 C. J. 641. (d) Representation that the land company was the owner of the land in question was not an actionable misrepresentation on the part of anyone. The company was the equitable owner under plaintiff's own evidence and its ownership and control was sufficient to justify such a representation. Moreover, ownership or control greater than or beyond that which in fact existed was immaterial under plaintiff's contract and the evidence in the case and the absence of complete legal title in the land company resulted in no damage in the plaintiff. Lambert v. Railroad Co., 212 Mo. 709; Schaeffer v. Detie, 191 Mo. 392; Block v. Morrison, 112 Mo. 350; Remmers v. Remmers, 217 Mo. 570; Gettings v. Jeffords, 292 Mo. 691; Shannon v. Crabtree, 71 S.W.2d 710; Trust Co. v. McIntosh, 68 Kan. 452; Nance v. Sexton, 199 Mo.App. 461; Fuchs v. Leahy, 321 Mo. 56; McPherson v. Kissee, 239 Mo. 669; Rock Island Implement Co. v. Wally, 268 S.W. 913; Bradford v. Wright, 145 Mo.App. 669; Dillon v. Hill, 178 S.W. 86; Shannon v. Crabtree, 71 S.W.2d 710; Davis v. Forman, 229 Mo. 41; Harelson v. Tyler, 281 Mo. 399; Epps v. Duckett, 284 Mo. 142; Fuchs v. Leahy, 321 Mo. 56; Stufflebaum v. Peabler, 274 S.W. 929; Wann v. Scullin, 235 Mo. 642; Trust Co. v. McIntosh, 68 Kan. 461. (e) It was error to submit as actionable fraud upon the part of the defendant the claim that Johnson, Tutt and Major represented that the soil of the land in question "was capable of producing crops of natal hay that would yield a profit to plaintiff." (f) The issue was not within the allegations of the petition. (g) No such representation by Johnson, Tutt and Major was binding upon the defendant or submissible as actionable fraud upon his part. (h) It was error to submit such representations since they were mere promissory statements constituting opinion as distinguished from representation of fact and affording no basis for an action for fraud as against anyone.

W. H. L. Watts, C. W. Prince, James N. Beery and Denton Dunn for respondent.

(1) The oral representations made, and W. J. Howey Land Company literature delivered, by Johnson, Tutt, Major and Bryson to plaintiff, prior to the execution of his land contract and natal hay contract, were properly admitted in evidence by the court. (a) The oral representations to plaintiff that the W. J. Howey Land Company owned the land in question, and as to the development of the land in the vicinity and the natal hay it would produce and the company literature about Lake County, Florida, land given to plaintiff by Johnson, Tutt and Major, were binding on the defendant Howey and admissible in plaintiff's action for fraud and deceit on the part of defendant by reason of defendant's connection with the whole scheme from its inception. Kennish v. Safford and Ray, 193 Mo.App. 372; Stonemetz v. Head, 248 Mo. 267; Hobbs v. Boatright, 195 Mo. 693, 93 S.W. 934; Mosby v. McKee Comm. Co., 91 Mo.App. 507; McCarthy v. Hecker, 4 S.W.2d 1094; First Natl. Bank of Monett v. Wilson, 222 S.W. 384; Burton v. Maupin, 281 S.W. 90; Lewis v. Hays, 21 S.W.2d 949; Wolfersberger v. Miller, 327 Mo. 1150, 39 S.W.2d 763; 5 R. C. L. 1088, sec. 37; 12 C. J. 632, secs. 224-227, 234; 1 Greenleaf Evid. (17 Ed.) 305, sec. 184; Hamlin v. Abell, 120 Mo. 199. (b) The oral representation and literature as to the proposed development of the land, and as to its productiveness and returns when cleared and sown in natal grass, were representations of existing facts as to its fertility, income and natal hay possibilities. State ex rel. v. Daues, 290 S.W. 428, 316 Mo. 474; Met. Paving Co. v. Brown Crummer Inv. Co., 274 S.W. 823, 309 Mo. 638; Wendell v. Ozark Orchard Co., 200 S.W. 747; Collins v. Lindsay, 255 S.W.2d 91; Stonemetz v. Head, 248 Mo. 269; Finke v. Boyer, 56 S.W.2d 372. (c) The evidence of other representations not relied upon as a basis for recovery was properly admitted as a part of the res gestae. Boyles v. Burnett, 213 Mo.App. 238, 249 S.W. 721; 27 C. J., pp. 39, 40, 50; Reynolds v. Davis, 303 Mo. 418, 260 S.W. 996; Wolfersberger v. Miller, 327 Mo. 1150, 39 S.W.2d 762; State v. Roberts, 201 Mo. 702, 100 S.W. 490; Burton v. Maupin, 281 S.W. 90; Rice v. Gray, 34 S.W.2d 572. (d) Plaintiff was not precluded from showing that he was induced to enter into the transaction by the representation that the Howey Land Company owned the property. Leicher v. Kenney, 98 Mo.App. 394, 72 S.W. 145; Horne v. Hertel, 184 Mo.App. 725, 171 S.W. 598; Judd v. Walker, 215 Mo. 312, 114 S.W. 979; Stoltzfus v. Howey, 54 S.W.2d 506. (2) The court properly gave plaintiff's Instruction 1. (a) The evidence shows it was material in whom legal title stood, and that the misrepresentation in this regard induced the plaintiff to enter into the contract to his damage. Stoltzfus v. Howey, 54 S.W.2d 501; Jacobsmeyer v. Felzone & Co., 260 S.W. 766; 13 C. J. 39; 39 Cyc., pp. 1259, 1264, 1276. (b) The W. J. Howey Land Company was not the owner of the land within the meaning and contemplation of the representations as to ownership alleged in the petition. Stoltzfus v. Howey, 54 S.W.2d 506; Kerwin v. Friedman, 127 Mo.App. 519, 105 S.W. 1103; White v. Reitz, 129 Mo.App. 307, 108 S.W. 603; Devero v. Sparks, 189 Mo.App. 500, 176 S.W. 1057; Stacy v. Robinson, 184 Mo.App. 54, 168 S.W. 263; Herman v. Hall, 140 Mo. 270, 41 S.W. 734; Nance v. Sexton, 199 Mo.App. 461, 203 S.W. 649.

Hyde, C. Ferguson and Bradley, CC., concur.

OPINION

HYDE

This case, coming recently to the writer, is an action to recover the amount paid by plaintiff upon a contract to purchase Florida land. Plaintiff alleged that this contract was induced by fraud and misrepresentation. Plaintiff originally made the W. J. Howey Land Company and the W. J. Howey Company, corporations, defendants, but dismissed as to these corporate defendants and proceeded only against defendant Howey individually. Plaintiff had a jury verdict for $ 10,226.35, and defendant has appealed from the judgment entered on this verdict.

Plaintiff's petition alleged fraudulent misrepresentations, as follows:

"That to induce plaintif...