Reynolds v. Davis

Citation260 S.W. 994,303 Mo. 418
Decision Date04 March 1924
Docket NumberNo. 23258.,23258.
PartiesREYNOLDS et al. v. DAVIS.
CourtUnited States State Supreme Court of Missouri

Appeal from Circuit Court, Dade Countiy; B. G. Thurman, Judge.

Action by W. E. Reynolds and another against S. L. Davis. Judgment for plaintiffs, and defendant appeals. Affirmed.

Owen & Davis, of Joplin, and John I. Williamson, of Kansas City, for appellant.

Horace Ruark, of Neosho, Ben M. Neale, of Springfield, and Leo H. Johnson, of Neosho, for respondents.

DAVID E. BLAIR, P. J.

Action for damages for fraud and deceit in the sale to plaintiffs of an undivided two-thirds interest in certain land and a mining lease in Newton county, Mo. From a judgment for plaintiffs in the sum of $16,000, the defendant has appealed.

The suit was instituted in Newton county, and was tried in Dade county upon a change of venue. The land involved comprised 160 acres. It is referred to as the Bert (Burt) West farm. The amended petition, upon which the case was tried, contained numerous charges of fraudulent representations.

Appellant makes no contention that the petition did not state a cause of action, or that plaintiffs failed a make a case for the jury, and we will not set out such petition or undertake to recite in detail the facts which the evidence of the plaintiffs and defendant tended to establish, except as such facts may be further developed in disposing of the numerous assignments of error. Such assignments are that the trial court erred in refusing to strike out certain parts of the petition, in admitting improper evidence offered by plaintiffs and refusing to strike out improper testimony upon motion of defendant, in excluding proper evidence offered by defendant, in giving improper instructions at plaintiffs' request, and in refusing proper instructions requested by defendant.

I. Defendant filed eight separate motions to strike out portions of the amended petition, each being directed to certain designated allegations in the petition. The trial court sustained motions 4, 6, and 7, and overruled the remainder. Having saved his exceptions, defendant complains of this action.

After the court overruled motions 1, 2, 3, 5, and 8 defendant answered, admitting the sale of the land and the execution and delivery of the mining lease, as charged in the petition, and denied generally all the other allegations of the petition. Such action precludes us from considering whether the court erred in failing to strike out such portions of the petition. Even if such allegations should have been stricken out, sufficient allegations of fraudulent representations remained in said petition to constitute a good cause of action. In such case the rule is that the error in overruling the motion to strike out is waived by answering over. Fuggle v. Hobbs, 42 Mo. 537; Walser v. Wear, 141 Mo. 443, 42 S. W. 928; Dakan v. Mercantile Co., 197 Mo. 238, 94 S. W. 944; Lewis v. Barnes (Mo. Sup.) 220 S. W. 487; Sittig v. Kersting, 284 Mo. 143, 223 S. W. 742.

Appellant seeks to avoid the force of this rule because, as he contends, the matters sought to be stricken out stated no cause of action, and general demurrer would lie, and cites cases which hold that, where the petition fails to state a cause of action, such petition may be attacked for the first time after verdict or even upon appeal. Such cases have no application where the petition states a good cause of action without the averments sought to be stricken out. The assignments of error in the court's rulings on motions to strike out are therefore overruled.

II. Appellant complains of the action of the trial court in permitting plaintiffs to offer evidence tending to prove allegations in the petition which defendant sought unsuccessfully to have stricken out by the motion above referred to; this because such allegations were of representations which were mere matters of opinion or mere boosting or puffing, and not such false representations as would support an action for fraud and deceit. Assuming, without so deciding, that defendant is correct in his characterization of such alleged false representations as not being actionable, yet such statements and representations were part of the conversations leading up to the closing of the transaction in issue, and the plaintiffs were entitled to show such statements of defendant and of his agent, Bower, in connection with other representations which in themselves did constitute actionable false representations.

The general rule is laid down in 2'? Corpus Juris, 50, as follows:

"Where a question of fraud is involved, great latitude is ordinarily permitted in the introduction of evidence, although such latitude does not extend to the permission of the introduction of evidence wholly foreign to the issues or irrelevant to the transaction involved. Subject to this qualification it is proper to admit any evidence which is competent by other rules of law, either direct or circumstantial, which in the opinion of the court has a legitimate tendency to prove or disprove the allegations in issue, the matter resting largely in the discretion of the trial court. The whole transaction involving the alleged fraud may be given in evidence. Every relevant circumstance in the condition and relation of the parties and subject-matter, and every act and declaration of the party charged with fraud, is competent evidence, if in the opinion of the court it bears such a relation to the transaction under investigation as to persuade the jury that the allegation of fraud is or is not well founded."

It is said in the same excellent work (27 C. J. pp. 30, 40) that—

"While evidence of other false statements than those charged in the declaration is not, of course, admissible if such other representations are relied upon as a part of the cause of action, it may frequently be admissible because relevant to the issue of fraud. Representations differing from but tending to prove the representations set out, or to show that the representations set out may have influenced plaintiff, are admissible. Evidence of other representations contemporaneous with those set out in the declaration may be admissible to show the meaning or the falsity of those alleged, or to show scienter, or they may be admissible as evidentiary details of the main misrepresentation charged."

The general rule as above announced has been recognized in adjudicated cases in Missouri. Smalley v. Hale, 37 Mo. 102; Wagner v. Binder (Mo. Sup.) 187 S. W. 1128, and cases cited therein.

When the trial judge came to instruct the jury he was careful to submit the case to them only on the issue of the falsity of representations that the land had produced $60 worth of wheat per acre in 1917, and that a face of lead and zinc ore 20 or 30 feet high had been opened up in a shaft on said land, and that 8 or 10 feet of such ore was almost solid ore, which would run 30 per cont. ore, and that drill holes had been sunk adjacent to such shaft which showed rich bodies of ore. At the request of defendant the trial court also instructed the jury that these were the allegations of fraud upon which plaintiffs sought to recover, and that, unless they found and believed "from the greater weight and credibility of the evidence that defendant made one or both of said statements," they should find for defendant. These two instructions were tantamount to withdrawing from the consideration of the jury as actionable fraudulent representations all other statements and representations of defendant which were mere matters of opinion or predictions or puffing. If the defendant desired more specific instructions withdrawing from the consideration of the jury any particular statement or statements he should have requested such instructions.

III. It is next contended that the trial court erred in permitting plaintiffs to introduce testimony showing what the value of the said farm would have been if it had been as represented, because, as it is said, the petition does not state any facts authorizing the introduction of such testimony. For the same reason similar complaint is made of instruction 2.

In a case of this sort, and under proper pleading, a defrauded plaintiff may be awarded such damages as will enable him to receive not only the difference between the actual market value of the property and the price which he paid therefor, but something over and above such damages, if any, represented by the difference between the price actually paid by him for such property and what its value would have been if it had been as represented. Such damages enable a defrauded party to obtain "the benefit of his bargain." Recovery of such damages is authorized in Missouri, as is clearly shown by the following cases, whicn we find in respondents' brief: Kendrick v. Ryus, 225 Mo. 150, loc. cit. 165, 123 S. W. 937, 135 Am. St. Rep. 585; Morrow v. Franklin, 289 Mo. 549, 233 S. W. 224, loc. cit. 232; Ryan v. Miller, 236 Mo. loc. cit. 508, 139 S. W. 128, Ann. Cas. 1912D, 540; Addis v. Swofford (Mo. Sup.) 180 S. W. 548, loc. cit. 555; Bank v. Byers, 139 Mo. 627, 41 S. W. 325: Boyce v. Gingrich, 154 Mo. App. 198, loc. cit. 204, 134 S. W. 79; Boyd v. Wahl, 175 Mo. App. 181, 157 S. W. 833.

Appellant does not contend that damages, as for the benefit of the bargain made, cannot be recovered, but insists that such damages are special, and must be pleaded to authorize a recovery thereof, and further contends that respondent was not entitled to recover such special damages in this case because they were not pleaded.

The sufficiency of the petition to support such recovery is therefore the real question to be considered under _his assignment. If it is sufficient, both proof and instructions touching damages covering the benefit of the bargain were proper. If such petition is not sufficient to support such recovery, both the admission of such testimony and the giving of instruction 2 were error....

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  • Becker v. Thompson, 31854.
    • United States
    • Missouri Supreme Court
    • November 20, 1934
    ...the Federal rule favors defendants while the Missouri rule tends to enhance the damages of plaintiffs." [See, also, Reynolds v. Davis, 303 Mo. 418, 260 S.W. 994, l.c. 997; Kendrick v. Ryus, 225 Mo. 150, 123 S.W. 937, l.c. 939, 135 Am. St. Rep. [6] Respondent also relies upon the Statute of ......
  • Stith v. Newberry Co., 31563.
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    ...same was overruled, defendants filed answer, and hence waived the right to contest the ruling of the court on said matter. Reynolds v. Davis, 260 S.W. 996, 303 Mo. 418; Titus v. Development Co., 264 Mo. 240; Liese v. Meyer, 143 Mo. 556. (5) There was no error in entering judgment for $10,00......
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