Powell v. Adams
| Decision Date | 04 November 1889 |
| Citation | 12 S.W. 295,98 Mo. 598 |
| Parties | Powell, Plaintiff in Error, v. Adams et al |
| Court | Missouri Supreme Court |
Error to Cole Circuit Court. -- Hon. E. L. Edwards, Judge.
Plaintiff was the owner of a certain hotel which he exchanged for stock in an incorporated company. He claims that he was defrauded in the transaction. This suit was brought to rescind his deed and restore him to his antecedent position as owner of the property and for other appropriate relief.
The answer denied the fraud alleged and set up an accord and satisfaction or settlement.
The reply asserted that the settlement was also fraudulently procured.
The cause was tried by Judge Edwards and resulted in a finding and decree for defendants which plaintiff seeks to reverse by this writ of error.
The other material facts appear in the opinion.
Affirmed.
N. D Thurmond and Geo. B. Macfarlane for plaintiff in error.
(1) The new increase of stock was void and had no value, and the compromise of February 27, if it settled anything, only settled the supposed difference between the legal issue of stock and the value of the hotel. Nothing else was in contemplation of the parties, as appears from defendants' own testimony. "The doctrine is firmly rooted in equity that where an instrument is so general in its terms as to release the rights of the party of which he was ignorant, and which were not in contemplation of the bargain at the time it was made, the instrument will be restrained to the purposes of the bargain and the release confined to the right intended to be released." Blair v. Railroad, 89 Mo. 383. (2) The item of "longs and shorts" carried on the books of the corporation as assets and showing thereby that the assets of the corporation were about twenty-nine thousand dollars more than liabilities was an act of fraud, and was calculated to, and did, mislead plaintiff. Thompson on Liability of Officers and Agents of Corporations, notes, sec 3, pp. 489-492. (3) Fraud is a question of evidence. This being an equity case is triable de novo. The evidence shows conclusively to our minds that defendant Adams, who acted for himself and other defendants, was privy to the trade. He received from Broadwell the contract of sale on the fifteenth of September, and on the sixteenth had transfer of stock made to Broadwell and had Broadwell's certificate in his possession. When Powell and Crews met Broadwell and offered him Powell's deed he directed them to go to Adams. They went to Adams at the bank and he delivered to them Broadwell's certificate for one hundred and thirty-five shares already endorsed, and received from Crews Powell's deed. Deed from Powell to Broadwell was filed for record on September 16, 1884. Evidently Adams had it filed and got Penn, the clerk, to go and get Broadwell's acknowledgment. Deed from Broadwell to defendants was not filed for about a year although it was executed on September 16. These facts are fully substantiated.
John A Hockaday and Silver & Brown for defendants in error.
(1) In equity cases, the appellate court will sustain the finding, unless the court below has manifestly disregarded the evidence. Sharp v. McPike, 62 Mo. 300; Hodges v. Black, 76 Mo. 537; Royle v. Jones, 78 Mo. 403; Snell v. Harrison, 83 Mo. 650; Mathias v. O'Neill, 94 Mo. 520. (2) Where in such cases there is a conflict of evidence affecting the credibility of witnesses, the supreme court will defer largely to the action of the chancellor trying the case. Pike v. Martindale, 91 Mo. 284; Baum v. Freyrear, 85 Mo. 151. (3) The acceptance of money in compromise and settlement of a disputed demand is a complete bar to any action upon such demand, and the acceptance of six hundred and seventy-five dollars by plaintiff in compromise and adjustment of the pending action constitutes a complete bar to his successful prosecution of the same, no fraud or deception having been practiced upon him. Railroad v. Allen, 46 Ark. 217; Tullew v. Crittenden, 9 Conn. 401; Reiley v. Chouquette, 18 Mo. 220; 1 Story's Eq. [7 Ed.] sec. 131; Mullanphy v. Riley, 10 Mo. 489; Cooper v. Parker, 14 C. B. 118, 822; Palmerton v. Huxford, 4 Denio, 166; Bryant v. Proctor, 14 B. Monroe, 451; Donahue v. Woodbury, 6 Cush. 148; Tuttle v. Tuttle, 12 Met. 551; Livingston v. Dugan, 20 Mo. 102; Zimmer v. Becker, 66 Wis. 527. (4) Fraud cannot be presumed. It must be proved, and the proof must be clear and convincing. Priest v. Way, 87 Mo. 16; Allison v. Ward, 29 N.W. 528; Wickham v. Morehouse, 16 F. 324; Clemens v. Brillhart, 17 Neb. 335; Dunn v. White, 63 Mo. 181; Bailey v. Smock, 61 Mo. 213; Campan v. Lafferty, 50 Mich. 114; Le Saulnier v. Loew, 53 Wis. 207.
OPINION
-- The facts developed at the trial are somewhat complicated but the decisive point of the controversy is not obscure.
Plaintiff parted with his hotel in exchange for stock in a tobacco company in September, 1884. During the next month he brought an action against the defendants here and others, charging that the exchange was induced by false and fraudulent representations to him regarding the value of the stock and claiming eighty-one hundred dollars damages. In November following he dismissed his action for deceit and executed a paper withdrawing all the charges of fraud. Afterwards he complained to some of defendants that the stock was not as good as had been represented and that something ought to be done about it.
Negotiations then followed, terminating in February, 1885, with a formal release in which, after reciting most of the foregoing facts, it was declared that the trade was fairly made but that plaintiff was dissatisfied in that he did not "think he got the full value of his property in tobacco stock." The document then proceeds as follows:
"Now, therefore, the said parties have this day paid to the said Powell the additional sum of six hundred and seventy-five dollars for said Powell House for the purpose of satisfying said Powell, the receipt of which sum the said Powell hereby acknowledges and says and admits that he is now fully satisfied with said trade, and that he accepts said sum of money with the promise on his part and a full understanding, that he is to treat the same as a full, complete and perpetual settlement of the same for all time to come and that he will not again express any dissatisfaction on account thereof to said parties or to others, or again call on or solicit for any other or further concession on their part," etc.
Plaintiff signed this instrument, delivered it to the defendants and accepted the six hundred and seventy-five dollars mentioned in it. Prior to this settlement plaintiff had been elected a director of the company and had unlimited access to its factory and to all its records and books of account. His son, who lived in Texas, had come, at his request, to confer with him regarding his affairs, and advised him in relation to the withdrawal of the first action mentioned.
The company failed and ceased business in 1886, after which this suit was brought.
These facts all appear from the plaintiff's own witnesses.
One statement let fall by himself at the trial deserves mention as bearing on the conclusiveness of the settlement in February, 1885. It was this:
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