Peers v. Davis' Adm'rs

• Decision Date: 31 October 1859
• Parties: PEERS, Respondent, v. DAVIS' ADMINISTRATORS, Appellants.
• Court: Missouri Supreme Court

29 Mo. 184

PEERS, Respondent,

v.DAVIS' ADMINISTRATORS, Appellants.

Supreme Court of Missouri.

October Term, 1859.

1. Where a contract is reduced to writing, the written instrument is presumed to contain the whole contract; parol evidence is inadmissible to contradict or vary its terms.

2. False representations made by a vendor in the sale of a chattel, to amount to a fraud upon the purchaser, must be known to be false when made, and made with intent to deceive.

3. Where a new trial is sought on the ground of surprise by the exclusion of depositions of witnesses residing more than forty miles from the place of trial, the affidavit accompanying the motion for a new trial should set forth the testimony contained in the depositions, or at least the substance of it, so that it could be determined by the court whether it is material or not.

4. Surprise, in its legal acceptation, denotes an unforeseen disappointment in some reasonable expectation against which ordinary prudence could not have afforded protection. The fact that witnesses, whose depositions are taken, reside within forty miles of the place, is a fact of which the party taking such depositions can inform himself by ordinary diligence; if it be not known, the want of knowledge is to be attributed to his own laches, and surprise thus produced can not be ground for a new trial.

Appeal from St. François Circuit Court.

This was an application to the county court for the allowance of a demand against the estate of Luke Davis. The foundation of the demand was a promissory note for one hundred dollars given by said Davis to one Milton Sebastian. This note was given in part consideration of the sale of a female slave named Katty, and was assigned to plaintiff. The bill of sale executed by said Sebastian, so far as it is necessary to set forth the same, is as follows: “Know all men by these presents, that I, Milton Sebastian, of, &c., for and in consideration of the sum of two hundred dollars, to me in hand paid by Luke Davis, of, &c., the receipt whereof, &c, do by these presents bargain, sell, transfer, assign and deliver unto the said Luke Davis, his executors, &c., a negro woman, slave for life, called and known by the name of Katty, now about the age of fifty years old, together with all my right, title, interest, claim and demand of, in and to the said negro woman slave: To have and to hold, &c. and the said Milton Sebastian for himself, his executors and administrators, does hereby covenant to and with the said Luke Davis, his executors, &c., that said negro woman is a slave for life. Given, &c. [Signed] Milton Sebastian [seal].”

The evidence tended to show that at the time of the sale the negro woman was between seventy and eighty years old, and was quite worthless as a slave. The defendants offered Koen, one of the defendants, as a witness to testify, as stated in the bill of exceptions, “as to matters occurring anterior to the death of his intestate, to show the representations made by Mr. Sebastian at the time he sold the negro woman.” The court refused to permit him to testify, on the ground of incompetence. Certain depositions were excluded on the ground that the witnesses resided within forty miles of the place of trial. Several witnesses were introduced, who, as stated in the bill of exceptions, “severally testified to a conversation in which Luke Davis, in a grocery, about a year ago, stated that he told Sebastian, at the time the bill of sale was being written, to put the age of the negro at about fifty or fifty-five years, and not to make her too damned old, as he might want to sell her again.”

The court, at its own instance, gave the following instructions: “1. If the jury find from the evidence in the cause that the note sued on was given in consideration of the purchase of the negro woman from Milton Sebastian, and at the time of the sale Sebastian made false and fraudulent representations in regard to the age, qualities or bodily capacity of said slave, whereby the purchaser Luke Davis was deluded into the purchase; and if they further find that in consequence of the age, qualities, or physical condition, the said negro woman was worthless and of no value, they will find a verdict for the defendants. 2. But the jury are further instructed that the want of value of the slave in consequence of her age and physical infirmity is not of itself sufficient to invalidate the sale, unless accompanied with proof of false representations by Sebastian at the time of the sale, by which the said Davis was deceived and deluded into the purchase.”

The court refused the following instructions asked by defendants: “1. If the jury find from the evidence that the note read in evidence was given in consideration of the purchase of a negro woman from Milton Sebastian, and that said Sebastian falsely represented to said Davis at the time of the sale that said negro woman was many years younger than she was in fact, and that he also falsely represented to said Davis the qualities and capacity of said negro much better and greater than they were in fact, which representations were the main inducements to the trade, and that the negro woman was in fact worthless, diseased and many years older than represented by said Sebastian, then the plaintiff can not recover in this action. 2. The statement in the bill of sale by Sebastian, in describing the negro slave, that she was fifty years of age, amounts to a representation on his part that she was of that age, or at least not greatly above that age, and if such statement was untrue it is in law a fraud upon Davis.”

The jury found for plaintiff.

Noell, for appellants.

I. The court erred in excluding the testimony of Hardy Koen. He is not incompetent as a party. (R. C. 1855, tit. Witnesses; 20 Mo. 17; 23 Mo. 65.) The court erred in refusing the second instruction asked. The statement in the bill of sale amounted to a representation. The second instruction given was erroneous. It is not the law that there must have been false representations. If the property was wholly worthless from disease such as rheumatism, and Sebastian sold the negro and failed to disclose the fact, then the defendant would have been entitled to relief. No man is allowed to take something for nothing. There must be a consideration for every promise. The court erred in refusing a new trial on the ground of surprise. The depositions were taken because the witnesses, it was...