Pomeroy v. Benton

CourtUnited States State Supreme Court of Missouri
Writing for the CourtSHERWOOD
Citation57 Mo. 531
Decision Date31 October 1874
PartiesGEORGE POMEROY, Respondent, v. WM. H. BENTON, Appellant.

57 Mo. 531

GEORGE POMEROY, Respondent,
v.
WM. H. BENTON, Appellant.

Supreme Court of Missouri.

October Term, 1874.


[57 Mo. 532]

Appeal from St. Louis Circuit Court.

Samuel Knox, Sharp & Broadhead, and Glover & Shepley, for Appellant.

I. A partner who improperly uses the money of the firm (and money raised by using the name of the firm, is money of the firm as much as any other) shall pay interest on the misused money and account for any profits derived from its use. (Glossington vs. Waters, 1 Sim. and St., 124; Stoughton vs. Lynch, 1 Johns. Ch., 467; Long vs. Majestre, 1 Johns. Ch., 305; 3d Kent. 5th Ed., 51; Collyer on Part., §§ 184, 185, 186, 221, 249; Somerville vs. McKay, 16 Vesey, 282.)

II. If defendant destroys testimony to prevent its use against him, the law furnishes a stringent rule to deal with the case. All things are presumed against the spoliator. When a party to a suit has testimony in his possession which

[57 Mo. 533]

he will not produce, all things are presumed against him. (1 Taylor, Ev., 96, 97.) The court held that the finder of a lost jewel, who would not produce it, should pay the highest value of a jewel of its kind. (Armory vs. Delamore, 1 Strange, 505.) Where defendant had suppressed a will, but the contents were not precisely shown, the court presumed it to be as alleged, and entered a decree for the estate until it was produced. (Daulston vs. Cotesworth, 1 P. W., 731.) If a man destroys a thing designed to be evidence against him, a small matter will supply it. (1 Lord Raymond, 731.) When a party withholds evidence, and the secondary evidence is uncertain as to dates or sums, or boundaries, etc., every intendment shall be against the withholder. (7 Wend., 31.) A witness was put on the stand to prove the course and distance in a deed that was withheld by the other party, and the witness failed to make the proof clearly. The court said they would presume the fact to be as alleged. (18 Johns., 351.) The jurisdiction in case of spoliation has gone a long way. “To such a length I should have difficulty in following, if not bound by authority and precedent. To say that once you prove spoliation you may take it for granted that the thing spoliated was what it is alleged it was, may be going a great length in many cases.” (Baker vs. Roy, 2 Russ. Ch., 73.)

III. The settlement was procured by fraud, and not binding, the profits on vouchers and whisky were not embraced in it, and not in contemplation of Pomeroy when he sold, and were, therefore, in equitable consideration, not paid for by Benton--not sold to him in equity--though in form they were. Mr. Pomeroy under the law had his choice either to rescind, disaffirming the sale, or to affirm the sale and have his damages.

1st. He was not bound by law or equity to rescind the sale if he was betrayed by Benton, through fraudulent representations, into a settlement of his accounts on a false basis, and afterwards made a sale of his interest on the basis of that settlement, but had the right to affirm the sale and claim his damages. When a party has been deceived by fraudulent

[57 Mo. 534]

representations and thus led into a contract, he may affirm the contract and recover damages for the fraud. (Fenimore vs. U. S., 3 Dallas, 357; Culver vs. Avery, 7 Wend., 380; Taylor vs. Tillotston, 16 Wend., 494.) If the party affirm the sale, that takes away the right to rescind and leaves him only the right to recover such damages as he sustained by the fraud. (Whitney vs. Allaine, 4 Denio, 554; Kellogg vs Denslow, 14 Conn., 411; Boorman vs. Johnston, 12 Wend., 556; Waring vs. Mason, 18 Wend., 426; Holland vs. Anderson, 38 Mo., 55.) If a settlement is made between partners, and on faith of that settlement one pays the other more than his due, the sum overpaid may be recovered back by an action of assumpsit. (Bond vs. Hays, 12 Mass., 34.)

2nd. A party situated as Mr. Pomeroy was might have rescinded, undoubtedly; but to have had rescision he should have asked for it, and should also have shown the property on hand and not changed in condition; and that all parties could be put in statu quo. (Carrol vs. Rice, Walker, Ch., 373.) When such facts do not appear, rescision is impossible, and compensation is all the remedy a plaintiff can have. The defendant makes no allegation that the rescision is possible, or that the thing sold remained in statu quo.

3rd. In this case Mr. Pomeroy prays to have the settlement based on the false balance sheet held fraudulent; but does not ask to rescind the sale, and could not have rescision if he did ask it, for the sale was of a stock of dry goods, delivered two years and more before the fraud was discovered, and there is no showing that they had not all been sold long before the petition was filed. (Bradbury vs. Keas, 4 J. J. M., 446.) There can be no rescision unless parties can be put in statu quo. (Pintard vs. Martin, S. & M. Ch. 126; Golden vs. Maupin, 2 J. J. M., 239; 2 Story, Cont., p. 550, § 977.) Such a stock of goods and assets could not remain in statu quo. The plaintiff, therefore, has in law and equity a remedy for this fraud. The law will compel a fraudulent vendee, to compensate for the injury he has done.

[57 Mo. 535]

IV. It has been suggested, if we are not mistaken, that the present petition is a suit in equity; and that the plaintiff should have sued at law. What did the learned counsel mean by a suit in equity? What alteration should be made in the petition to make it acceptable as a petition at law? Our Code, ch. 161, Gen. Stat., 1865, says: “There shall be in this State but one form of action.” In that form of action the plaintiff states his facts. The legal inevitable consequence is, that if the facts which give a cause of action are stated, the proper relief must be given, no matter whether it is legal or equitable. If the petition of Pomeroy states facts that affirm this fraudulent sale, that is, do not disaffirm it, and prays for damages in proper terms, the petition is all right. This is the sense of the code, and this is the course of adjudication upon it. The code abolished all rules of pleading which were merely technical; none remain but such as truth and justice require. (Cobb vs. West, 4 Duer., 38; Haight vs. Child, 34 Barb., 186; Scott vs. Pilkington, 15 Abbot, Pr., 280; Butterworth vs. O'Brien, 24 How. Pr., 438; Winterton vs. 8th Avenue R. R., 2 Hilton, 389; 15 Abbott, 445; Durant vs. Gardner, 19 How. Pr., 94; Marquat vs. Marquat, 2 Kernan, 336.) The plaintiff is entitled to any relief, legal or equitable, which arises on the facts of his petition. (Charless vs. Rankin, 19 Mo., 490.) In any event, as the defendant has not pleaded remedy at law, the court will go forward and render judgment on any cause of action, legal or equitable. (Underhill vs. Van Courtland, 2 Johns. Ch., 369; Ludlow vs. Simond, 2 Caines' Cases. 40; Livingston vs. Livingston, 4 Johns. Ch., 290; Grander vs. Leroy, 2 Paige, 509; Hawley vs. Cramer, 4 Cow., 727; Leroy vs. Pratt, 4 Paige, 81; Burrough vs. McNeil, 2 Dev. & Bat. Eq., 300; Cable vs. Martin, 1 How. Miss., 561; Davis vs. Roberts, 1 Sm. & M. Ch., 550; Holmes vs. Doll, Clark R., 75.) This case shows how the defense must be set up. (Osgood vs. Brown, 1 Freeman, Ch., 392; Miller vs. Furze, 1 Bailey, Eq., 187; Mays vs. Taylor, 7 Geo., 244; May vs. Goodman, 27 Geo., 353; Fowler vs. Halbart, 3 Bibb, 384; Supervisors, etc vs. Utica, etc., 1 Barb. Ch., 343.) The chancellor said he had

[57 Mo. 536]

not considered if the claim was legal or equitabe, as there was no such defense. (Viburt vs. Trait, 3 Abbott, Pr., 119; 6 Abbott, Pr., 6; 4 Paige, 400.) The same doctrine prevailed in Missouri, till lately. (Oldham vs. Trimble, 15 Mo., 229; Black vs. Chase, 15 Mo., 347; Martin vs. Greene, 10 Mo., 652.) But there is in matters of fraud, a concurrent jurisdiction both in law and equity.

To resume then, our conclusions are these: That the plaintiff has been wronged, and must have some sort of redress from the court. Originally he might have demanded rescision or damages. He is not entitled to rescision now, he did not come soon enough, nor till the condition of the property had changed, and the property had been disposed of. It is, therefore, compensation or nothing. The law allows plaintiff to affirm the contract and recover damages. There is nothing in the form of plaintiff's action to prevent his recovery. The plaintiff not being obliged to rescind the outstanding sale or bill of sale unannulled, is no defense, the plaintiff's petition is not a bill in equity; but if it were, the defense remedy at law cannot be set up now, because (1) it is abolished, (2) it is not pleaded.

Cline, Jamison & Day, and John M. Krum, for Respondent.

I. The bill of sale is plain and simple, couched in comprehensive language, and as a legal instrument remains a complete barrier, both at law and in equity, to any action that may be instituted by the appellant against the respondent, unless it first be set aside in a direct proceeding by a court of competent jurisdiction.

It can neither be surcharged nor falsified; if it be voidable on the ground of fraud, it must be avoided in toto. It cannot be affirmed in part and avoided in part. It was a lumping bargain and not a sale of Mr. Pomeroy's interest in any particular chattel or land, or of his interest in any particular sum or balance.

[57 Mo. 537]

The instrument must speak for itself. It applies the consideration to the entire interest sold, and does not pretend to distribute or...

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50 practice notes
  • Denny v. Guyton, No. 32372.
    • United States
    • United States State Supreme Court of Missouri
    • December 31, 1932
    ...loss should be visited upon his cestui que trust. Wootton Land & Fuel Co. v. Ownbey, 265 Fed. 100; 33 C.J. 870, sec. 95; Pomeroy v. Benton, 57 Mo. 531; Pomeroy v. Benton, 77 Mo. 64; Pomeroy's Equity Jurisprudence (4 Ed.) p. 2471; Leary v. Kelley, 120 Atl. 817; Navarro v. Lamana, 179 S.W. 92......
  • May Department Stores Co. v. Union E.L. & P. Co., No. 34288.
    • United States
    • United States State Supreme Court of Missouri
    • June 30, 1937
    ...U.S. 134, 39 Sup. Ct. 237. (10) The Statute of Limitations does not apply because of defendant's fraudulent concealment. Pomeroy v. Benton, 57 Mo. 531; Laird v. Keithley, 201 S.W. 1138; Monmouth College v. Dockery, 241 Mo. 522; Thaler v. Niedermeyer, 185 Mo. App. 250; Cottrell v. Krum, 10 M......
  • Pryor v. Kopp, No. 34373.
    • United States
    • United States State Supreme Court of Missouri
    • August 17, 1938
    ...inter se, applies the doctrines and principles of equity applicable to the relationship of trustee and cestui que trust. Pomeroy v. Benton, 57 Mo. 531; Filbrun v. Ivers, 92 Mo. 388; 2 Story's Equity Jurisprudence (14 Ed.), secs. 898, 900, 901, 909, 911; Mechem's Elements of the Law of Partn......
  • Robert v. Davis, No. 25341.
    • United States
    • Court of Appeal of Missouri (US)
    • September 11, 1940
    ...v. Knox, 5 Mo. 112; Scott v. Caruth, 50 Mo. 120; Bond v. Bemis, 55 Mo. 524; Glaus v. Gosche, 118 S.W. (2d) 42. (2) Pomeroy v. Benton, 57 Mo. 531; Filbrun v. Ivers, 92 Mo. 388; Scott v. Thompson, 222 S.W. 115; Hedges v. Wear, 28 Mo. App. 575; 20 Ruling Case Law, pp. 802, 1013; 47 C.J., p. 77......
  • Request a trial to view additional results
50 cases
  • Denny v. Guyton, No. 32372.
    • United States
    • United States State Supreme Court of Missouri
    • December 31, 1932
    ...loss should be visited upon his cestui que trust. Wootton Land & Fuel Co. v. Ownbey, 265 Fed. 100; 33 C.J. 870, sec. 95; Pomeroy v. Benton, 57 Mo. 531; Pomeroy v. Benton, 77 Mo. 64; Pomeroy's Equity Jurisprudence (4 Ed.) p. 2471; Leary v. Kelley, 120 Atl. 817; Navarro v. Lamana, 179 S.W. 92......
  • May Department Stores Co. v. Union E.L. & P. Co., No. 34288.
    • United States
    • United States State Supreme Court of Missouri
    • June 30, 1937
    ...U.S. 134, 39 Sup. Ct. 237. (10) The Statute of Limitations does not apply because of defendant's fraudulent concealment. Pomeroy v. Benton, 57 Mo. 531; Laird v. Keithley, 201 S.W. 1138; Monmouth College v. Dockery, 241 Mo. 522; Thaler v. Niedermeyer, 185 Mo. App. 250; Cottrell v. Krum, 10 M......
  • Pryor v. Kopp, No. 34373.
    • United States
    • United States State Supreme Court of Missouri
    • August 17, 1938
    ...inter se, applies the doctrines and principles of equity applicable to the relationship of trustee and cestui que trust. Pomeroy v. Benton, 57 Mo. 531; Filbrun v. Ivers, 92 Mo. 388; 2 Story's Equity Jurisprudence (14 Ed.), secs. 898, 900, 901, 909, 911; Mechem's Elements of the Law of Partn......
  • Robert v. Davis, No. 25341.
    • United States
    • Court of Appeal of Missouri (US)
    • September 11, 1940
    ...v. Knox, 5 Mo. 112; Scott v. Caruth, 50 Mo. 120; Bond v. Bemis, 55 Mo. 524; Glaus v. Gosche, 118 S.W. (2d) 42. (2) Pomeroy v. Benton, 57 Mo. 531; Filbrun v. Ivers, 92 Mo. 388; Scott v. Thompson, 222 S.W. 115; Hedges v. Wear, 28 Mo. App. 575; 20 Ruling Case Law, pp. 802, 1013; 47 C.J., p. 77......
  • Request a trial to view additional results

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