Powell v. White
| Decision Date | 19 May 1913 |
| Citation | 170 Mo. App. 598,157 S.W. 111 |
| Parties | POWELL v. WHITE. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Chariton County; Fred Lamb, Judge.
Action by Robert Powell against William E. White. Judgment for plaintiff, and defendant appeals. Reversed.
R. B. Caples, of Glasgow, and J. A. Collet, of Salisbury, for appellant. Percival Birch, of Glasgow, and Williams & Williams, of Boonville, for respondent.
This is an equity case to recover an excess payment to defendant for land alleged to have been purchased of him by plaintiff. The ground of the amended petition, on which the suit was tried, was fraudulent representations as to the number of acres in the tract conveyed, though the original petition counted on mistake in that particular, and contained an allegation that defendant made said representations under a misapprehension of the facts and fully believing the tract contained the number of acres represented. The shortage in the number of acres of which complaint is made was 16.13. The transfer in which the shortage occurred took place February 16, 1899, and the suit was not filed till October 18, 1911, more than 12 years later. To avoid the bar of the statute, which would otherwise appear on the face of the petition, there was an allegation that the shortage was not discovered until January 1, 1909; but there is no allegation in the petition as to why it was not discovered sooner, or as to anything defendant did which kept plaintiff from learning of it before.
A demurrer to the petition was overruled, and thereupon an answer was filed, denying the representations and pleading limitation. In fact, defendant denied making any trade whatever with plaintiff; his contention being that after repeated negotiations with plaintiff the proposed trade between them fell through, and the deal that was made was with a Mr. Shackelford, who traded a farm near Glasgow, known as the "Lewis farm," to plaintiff for the latter's farm and a house and lot in Fayette, and induced a money-lending client of Shackelford to take plaintiff's farm for the mortgage held by the client on defendant's farm, and then sold the last-named farm to two men, one of them plaintiff and the other a man by the name of Tevis. Defendant claims that, when deeds were to be made, Shackelford, to avoid having so many instruments drawn, had defendant deed his farm direct to plaintiff and Tevis, respectively; and it was this deed to plaintiff on which the excess payment was made. There is evidence to sustain this view; but, as the court found for plaintiff, it must have concluded that this was not the fact, and, as the evidence was pro and con on this point, we would defer to the opinion of the trial court thereon, if the case depended on this point only.
Defendant originally obtained his farm from his uncle, and took his word for the number of acres it contained, never having it surveyed. The evidence shows that plaintiff lived not far from this farm for 18 or 20 years; that he had known the farm, often went over it carefully, and had the boundaries pointed out to him correctly; and that he, not defendant, was the moving party in endeavoring to obtain a trade. Plaintiff did not ask to have surveyed the portion coming to him in the deal, and the evidence is not very definite or precise as to what the representations were, except that defendant said the farm had 16.13 more acres than it was...
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