Reynolds v. Davis
| Decision Date | 07 April 1924 |
| Docket Number | 23258 |
| Parties | W. E. REYNOLDS and W. LUSK v. S. L. DAVIS, Appellant |
| Court | Missouri Supreme Court |
Motion for Rehearing Overruled April 7, 1924.
Appeal from Dade Circuit Court; Hon. Berry G. Thurman Judge.
Affirmed.
John I. Williamson and Owen & Davis for appellant.
(1) Motion numbered 1 to strike out certain portions of plaintiffs' amended petition should have been sustained for the reason that the allegations sought to be stricken out do not show any confidential trust, or fiduciary relations between plaintiffs and Bower, and for the further reason that their acquaintance and business relations with said Bower did not authorize them to rely upon their acquaintance and business relations with him without an investigation of facts open and patent to investigation. The fact, if it be a fact that plaintiffs and Bower were good friends, or that they had been associated with him in business deals, and that they had confidence in his integrity and in his judgment did not exempt them from the rule of caveat emptor. 12 R. C. L. sec. 5, p. 234; Fisher v. Seitz, 172 Mo.App. 162, 171. (2) Motion numbered 2 to strike out the allegation "that the same was worth from one hundred and twenty-five to one hundred and fifty dollars per acre for farming purposes alone" should have been sustained, for the reason that the same was the expression of a mere opinion, and not a warranty of value, and for the reason that no fact is pleaded tending to show that plaintiffs had no opportunity to inspect the land in question, or that defendant prevented an inspection or inquiry as to its value. Cornwall v. Real Estate Co., 150 Mo. 383; Anderson v. McPike, 86 Mo. 293; Nauman v. Oberle, 90 Mo. 666; Moody v. Baxter, 167 Mo.App. 522; Lewis v. Land Co., 124 Mo. 687; Anderson v. McPike, 86 Mo. 300; Funding & Foundry Co. v. Heskett, 125 Mo.App. 533; Brown v. Railroad, 187 Mo.App. 109; Dunn v. White, 63 Mo. 186; Judd v. Walker, 215 Mo. 326. (3) Motion numbered 3 to strike out should have been sustained, because the statement "that the same was a rich and profitable mining proposition and could be operated with great profit to the plaintiffs," is the expression of a mere opinion. Fisher v. Seitz, 172 Mo.App. 162; Brown v. Lead & Zinc Mining Co., 194 Mo. 681. (4) Answering over did not waive the errors committed by the court in overruling said motions. If the matters sought to be stricken out by said motions stood alone and were the sole grounds of plaintiffs' cause of action, no cause of action would be stated, and a general demurrer would lie; and answering over after the overruling of such demurrer, would not waive the error. It has been held time and time again, in the broadest language, and apparently without exception or limitation, that error committed in overruling motions to make a petition more definite and certain was waived by answering over; but this cannot be true in all cases, because the Statute of Jeofails does not cure the omission of an essential averment of the petition, and which cannot be inferred from the language used, because no cause of action is stated. Andrews v. Lynch, 27 Mo. 167; O'Toole v. Lowenstein, 177 Mo.App. 665; Swift v. Fire Ins. Co., 179 Mo. 613; Lumber Co. v. Railroad Co., 197 Mo.App. 551. (5) The court committed error in permitting plaintiffs to introduce evidence in support of the allegations of the petition sought to be stricken out by said motions, for the reasons already stated; and the poisonous effect of such evidence was not cured by the court instructing the jury that the plaintiffs sought to recover upon two grounds only, to-wit, that defendant represented that the land in question had produced $ 60 worth of wheat per acre for the year 1917, and that the defendant represented that the shaft had passed through an ore body thirty feet in depth and that ten or fourteen feet of said ore body was practically solid ore giving approximately fifty per cent of recovery, and that there were drill holes on said land which had as good a showing as the shaft. Glenn v. St. Louis Ry. Co., 167 Mo.App. 109. (6) The court committed error in permitting plaintiffs, over the objections and exceptions of defendant, to introduce testimony showing what the value of the farm would have been, if it had been as represented, for the reason the petition does not state any fact or facts authorizing the introduction of such testimony. The difference between what said farm was actually worth and what it would have been worth if it had been as represented, represents the "profits," the "gains" or "benefits" of the bargain. Kendrick v. Ryus, 225 Mo. 150, 165. Such profits, gains or benefits are special, and not general damages. In actions to recover such damages, the pleader must state facts showing the amount or extent of such damages and showing the suffering thereof, whether the action is based upon breach of contract or upon tort. 35 Cyc. 587, note 97; 2 Sutherland on Damages (3 Ed.) sec. 419, p. 1162; Mellor v. Railroad Co., 105 Mo. 464; Slaughter v. Railroad Co., 116 Mo. 269; Goepel v. Kurtz Action Co., 167 N.Y.S. 317; Campbell v. Chillicothe, 175 Mo.App. 436. (7) The court committed error in giving on behalf of plaintiffs instruction numbered 2, authorizing the jury, if they found the issues for the plaintiffs, to assess their damages at such sum as represented the difference between the actual value of the interest purchased by the plaintiffs in the farm and what such interest would have been worth if the land had been as represented, for the following reasons: (a) No facts are pleaded showing what said farm was actually worth, or what it would have been worth if it had been as represented. (b) It authorized the jury to take into consideration all of the testimony given in relation to all of the statements and representations claimed to have been made by Davis, and did not confine the jury to the statements and representations claimed to have been made by defendant as to the value of wheat produced during the year 1917 and as to the ore body through which the shaft passed and the per cent of recovery thereof, and the showing of the drill holes near the shaft. (c) It did not limit the jury to any particular time in fixing the value to be placed upon said land. (8) The court committed error in giving on behalf of plaintiffs instruction numbered 3, for the following reasons: (a) It does not require the jury to find that plaintiffs reposed confidence and trust in the witness Bower on account of and by reason of the fact that they had been interested and associated with him in business transactions. (b) It is not based upon any evidence in the case tending to show such business relations with either Lusk or Reynolds as would authorize them to rely upon the truth of any statement that Bower may have made to them during the negotiations for the purchase of the farm. (c) It assumes that defendant knew of the existence of such business relations, although the evidence does not tend to show in the remotest degree that defendant knew of the existence of business relations between plaintiffs and Bower. (9) The court committed error in refusing the request of defendant, at the close of plaintiffs' case, to strike out the testimony of plaintiffs Lusk and Reynolds to the effect that Bower had stated to them that the royalties from the operation of the mine upon the land would soon pay for the land, for the reason that it was not the statement of any fact, but an expression of an opinion as to what he thought could be done in the future, and for the further reason that the business relations between the plaintiffs and said Bower were not such that plaintiffs had a right to rely upon such opinion. Brown v. Mining Co., 194 Mo. 701; Wilson v. Jackson, 167 Mo. 156; Cornwall v. Real Estate Co., 150 Mo. 377. (10) The court committed error in refusing defendant permission to testify that before the second cash payment was made, and before the notes which were given in payment of the purchase price were executed, and before the deed of trust which was given to secure these notes was executed and delivered by him, that he had a conversation with Reynolds about the commission he was paying to Bower. (11) The reason that the reputation of defendant for honesty and fair dealing was not in issue in this case was improper, irrelevant and immaterial and did not tend to prove any issue involved in the trial of this suit. Black v. Epstein, 221 Mo. 304; Bank v. Richmond, 235 Mo. 542; Gourley v. Callahan, 190 Mo.App. 670.
Horace Ruark, Ben M. Neale and Leo H. Johnson for respondents.
(1) Defendant by answering over waived all objections to the action of the court in overruling defendant's motions to strike out parts of plaintiffs' petition. Lewis v Barnes, 220 S.W. 487; Sitting v. Kersting, 223 S.W. 742. (2) Defendant's motions numbered 1, 2, 3, 5, and 8, were properly overruled. (a) Motion 1 attempted to strike out the allegation as to the former friendly and business relations between the plaintiffs and defendant's agent, Bower. When this relation is taken along with the allegation that Bower purchased with the plaintiffs ostensibly as a co-purchaser, and that he was secretly in the pay of the defendant and acting for him, and that Bower was assuming at the same time to act as agent for the plaintiffs thereafter in procuring a sale of sub-leases upon the land, it shows a relation of confidence between plaintiffs and Bower; one that the law does not permit to be abused, and furnished good reason for disarming the vigilance of the plaintiffs. It was proper for the plaintiffs to plead the circumstances under which the representations were made as showing their right to rely thereon and that they were fraudulently induced to forbear making inquiry. 12 R. C....
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