Richardson v. Palmer

• Decision Date: 08 February 1887
• Parties: JAMES RICHARDSON, Respondent, v. SAMUEL C. PALMER ET AL., ADMINISTRATORS OF L. PALMER, DECEASED, Appellants.
• Court: Kansas Court of Appeals

24 Mo.App. 480

JAMES RICHARDSON, Respondent, v. SAMUEL C. PALMER ET AL., ADMINISTRATORS OF L. PALMER, DECEASED, Appellants.

Court of Appeals of Missouri, Kansas City.

February 8, 1887

APPEAL from Audrain Circuit Court, HON. ELIJAH ROBINSON, Judge.

Reversed and remanded with directions.

Statement of case by the court.

This is an action to recover from the defendants, as administrators money, by way of damages, growing out of the alleged fraudulent misrepresentations of defendants, in the sale of a bull, sold at public auction, at an administrator's sale.

The facts are, briefly, that Launcelot Palmer died intestate, in Audrain county, in 1883, possessed of a herd of fine cattle. Among these was a bull, of thorough breeding, which had been exhibited at the various fairs over the country, and had taken a number of premiums, and stood in high repute. It was deemed advisable by the probate court that these cattle should be sold at public auction, at the city of Chicago, and the court accordingly so ordered. The sale was advertised by hand-bills to occur on the twenty-second day of April, 1884.

This hand-bill was signed, " F. C. Harris, Manager."

The plaintiff knew this bull for some time prior to the sale. On or about the day of sale he went to Chicago for the purpose of bidding on this bull, and testified that his object was to buy the bull for breeding purposes, and that he went to Harris and told him that he thought of buying, and asked him if the bull readily served cows, and if he was a sure breeder. Harris answered: " The bull is all right. He is as good as he ever was. He is very fat, and his brisket is very large, and for that reason he finds some trouble in covering a large, broad-hipped cow, but otherwise is all right." He said they usually put the large cows in a pit for the bull to serve. He testified further that he knew the bull when he purchased it; that he was at Palmer's farm before the Chicago sale, and tried to buy the bull; that he saw Harris, who priced the bull at six hundred dollars; that he wanted to buy of the administrator, and saw him, who promised to write and price the bull, but failed to do so but the administrator made no representations to him about the bull; that he knew the bull was being sold by defendants as administrators, at public auction, by order of the probate court. That he told defendant at Chicago, before the sale that as he was selling as administrator he would not be expected to warrant the cattle, but only to tell all that he knew about them; that the auctioneer announced that the pedigree and title only of the cattle were warranted. Some one bid on the bull up to eight hundred dollars, and he bid him off at eight hundred and five dollars. That he kept the bull from that time until the fall of 1884, and exhibited him at the fairs that fall. He never offered to return the bull, and did not write to the defendants, complaining of any defect, until November, 1884.

The evidence on the part of the plaintiff tended to show that the bull on trial failed to serve cows. He would mount, but seemed to be unable to protrude his penis more than six inches and failed to form connection. Suspecting that this failure was attributable to the overfed condition of the bull, after exhibiting him in the fall the plaintiff reduced him in flesh, and again tried to serve him to cows, when the fact was developed, on examination, that there was an enlargement about six inches from the end of the penis as if it had been broken or otherwise injured, so as to prevent it from obtruding further from the sheath. Whereupon he made his complaint in a letter to the defendant. The hand-bills so signed by Harris, were distributed prior to the sale, and were seen by plaintiff after a portion had been distributed. The plaintiff also introduced as a witness, one Prather, who testified that in February or March, 1884, he attempted to put this bull to cow, but he could not eject his penis, and blood, etc., ran from his sheath; that in a day or two afterwards, when Harris returned, he informed him of this fact, to which Harris made no response.

One Carter, a boot-black, testified that in the spring of 1884 he was on Palmer's farm, and helped Harris put the bull to a cow; the bull seemed willing enough, but he did not get his penis out more than about six inches. He was close enough to examine his penis, but did not know it was defective. At the conclusion of this evidence the defendant offered an instruction in the nature of a demurrer to the evidence, which the court refused. The defendant's evidence tended to show that in the fall of 1883, the plaintiff was at the Palmer place, and wanted to buy the bull at private sale, and offered him six hundred dollars; that defendant told him he could not sell at private sale, that he would sell the cattle at public auction at Chicago, under order of the probate court. That on account of the weight of the bull he always pitted the cow, and that while the bull was slow he never knew him to refuse, and that he bred well. That he had no knowledge of any defect in his penis, that he never made any representations as to his breeding qualities, nor did he ever authorize Harris to act as agent in this matter, or to make any representations whatever about the bull, nor did he authorize Harris to sign the advertisement of sale, and that he did not know that Harris had so signed it until they were being distributed, when it was too late to get out new ones in time for the sale; and that he knew nothing about the statements alleged to have been made by Harris to plaintiff. That at Chicago, before the sale, the plaintiff came to defendant and told him to have the announcement made that there was no warranty or guaranty of the cattle, and for defendant to keep his mouth shut and make Harris keep his shut; and that the auctioneer made the announcement accordingly.

Harris testified that he merely went to Chicago with the cattle to help with them as an employe, that he was not in fact manager, and had nothing to do with the sale; that on the morning of the sale the plaintiff came to him and asked if the bull was a sure breeder; that he told him the bull was seven years old, had been carried on the cars a great deal; that he was slow, but he thought rather sure, if given time. That he did not know that plaintiff wanted to buy the bull; and that he had no knowledge that the bull was defective in any way. He contradicted the evidence of Prather. Other evidence tended to show the bull was a good breeder.

Under the instructions given by the court the jury returned a verdict for plaintiff in the sum of $762.25. From this judgment defendant has appealed.

W. O. FORRIST and W. W. FRY, for the appellants.

I. An estate is not liable for any promise or representation made by an administrator, which he has not the legal right to make or perform. For false and fraudulent representations and deceit, on the part of an administrator in the sale or disposition of assets of an estate, the estate cannot be held liable. In such cases the action must be brought against the administrator in his individual, not his representative character. Brown v. Evans, 15 Kas. 88; West v. Wright, 98 Ind. 335; Sumner v. Williams et al., 8 Mass. 196 to 206; Fritz v. Gill, 31 Minn. 536--18 N.W. 753; Cronan v. Cotting, 99 Mass. 334; Davis v. Krum, 12 Mo.App. 288; Ferris v. Myrick, 41 N.Y. 315; Able v. Chandler, 12 Tex. 92; Eustace v. Johns, 38 Cal. 3; Craton v. Wensiger, 2 Tex. 202; Ashby v. Ashby, 7 Barn. & Cress. 444; 3 Williams on Executor, (6 Am. Ed.) bottom page 1776, top page 1874, and note x; Riley v. Kepler, Supt. Ct. Ind., decided March, 1884, held: " It is no defence to an action on notes for purchase price of lands sold at administrator's sale, that the purchase was procured by false representations of administrator. He is liable individually only."

II. This action could not be maintained against defendants as administrators for money had and received. Cronan v. Cotting, 99 Mass. 334; Davis v. Krum, 12 Mo.App. 288.

III. Any action on a personal undertaking of an administrator, or for breach of personal duty, must be brought against him individually, not as administrator. Clark v. Alexander, 71 Ga. 500; Eustace v. Johns, 38 Cal. 3. " It is a general rule of law that no action will lie against an executor or administrator to which his testator or intestate was not liable. The estate, represented by a person upon whom the duty of keeping the premises in repair is cast, is no more liable for his neglect of that personal duty than it would be for a fine which might be imposed upon him by a criminal court for an assault and battery committed by him while in possession of said estate." 1 Estee's Pleadings, sect. 162, p. 85. An administrator cannot create a new obligation against the estate. If one signs a note as administrator he is personally liable for its payment. Rittenhouse v. Ammerman, 64 Mo. 197; State v. Reming, 74 Mo. 87; Studebaker Bros. v. Montgomery, 74 Mo. 103.

IV. The court erred in refusing defendants' instruction as offered; also in changing and then giving it. It was a question of fact for the jury as to whether Harris was an employe or agent, with authority to bind defendants. This instruction, as given with plaintiff's second and third instructions, took this question of fact from the jury and left the issue, whether Harris, as manager, made false representations, on which plaintiff relied. These instructions did not correctly declare the law.

V. If a purchaser holds on to the property purchased and seeks to recover damages, or the purchase money, in an action at law on the allegation of fraud or deceit, the scienter then becomes the gist of the proceeding and must be proved. In this case it was...