Robinson v. Siple

• Decision Date: 18 June 1895
• Citation: 31 S.W. 788,129 Mo. 208
• Parties: Robinson v. Siple et al., Appellants
• Court: Missouri Supreme Court

31 S.W. 788

129 Mo. 208

Robinson v. Siple et al., Appellants

Supreme Court of Missouri, Second Division

June 18, 1895

Appeal from Vernon Circuit Court. -- Hon. D. P. Stratton, Judge.

Affirmed.

W. M Bowker and M. T. January for appellants.

(1) A party can not sue on one contract and recover on another. Broning v. Walburn, 45 Mo. 477; Smith v Shell, 82 Mo. 215; Crum v. Cummings, 69 Mo 325; Feurth v. Anderson, 87 Mo. 354; Sisney v. Arnold, 28 Mo.App. 568. (2) A suit brought by a party upon a contract made for his benefit by one assuming to act as his agent, is a ratification of the contract and is equal to a previous authorization. In such cases, the principal, seeking an enforcement of the contract is answerable for any fraud perpetrated in making it. Mechem, Agency, sec. 151, p. 99, sec. 743, p. 384, and sec. 178, p. 113; Savings Association v. Morrison, 48 Mo. 273; Norton v. Bull, 43 Mo. 113; State ex rel. v. Harrington, 100 Mo. 170. (3) After ratification by suit, all declarations during negotiations of the agent concerning the contract made by him, are admissible as part of the res gestae. (4) A party to a contract is entitled to rescind for material misrepresentation, even if innocently made. Yeater v. Hines, 24 Mo.App. 619; Parker v. Marquis, 64 Mo. 38; Cohn v. Reed, 18 Mo.App. 115; Sackleben v. Heintze, 117 Mo. 520. (5) Although the general rule is that a party desiring to rescind a contract must tender back the thing received, and place the other party in statu quo, yet this rule has well recognized exception; and where through the fraud of the other party or his agent, the defrauded party has become entangled so that the status quo can not be restored, the defrauded party will not be deprived, for that reason, of his right to rescind. Mason v. Bovet, 43 Am. Dec. 651; Hammon v. Pennock, 61 N.Y. 145; Brown v. Norman, 7 Am. Rep. 665; Bryant v. Isburg, 74 Am. Dec. 661; Downs v. Smith, 76 Am. Dec. 148; Guckenheimer v. Angevine, 81 N.Y. 397. (6) It is error to instruct peremptorily if the evidence is at all conflicting.

G. S. Hoss and Thomas & Hackney for respondent.

(1) Defendants were not entitled to a rescission of the contract, first, because defendants could not, and did not offer to, place plaintiff in statu quo; second, because defendants, by their unreasonable delay, had waived their right, if any, to a rescission. (2) One joint contractor can not rescind without assent of the others. Melton v. Smith, 65 Mo. loc. cit. 324; Brewster v. Wooster, 9 N.Y.S. 312; Spencer v. St. Clair, 57 N.H. 9; Estes v. Reynolds, 75 Mo. 563. (3) The attempted rescission came too late; and the trial court correctly ruled that as a matter of law they had waived their right of rescission. Taylor v. Short, 107 Mo. 384; Estes v. Reynolds, 75 Mo. 563; Melton v. Smith, 65 Mo. 315; Key v. Jennings, 66 Mo. 370; Hart v. Handlin, 43 Mo. 175; Dougherty v. Stamps, 43 Mo. 343; Tower v. Pauly, 51 Mo.App. 75, and cases cited; Lewis v. Brookdale Land Co., 28 S.W. 324. To entitle a party to rescind a contract on the ground of fraud, he must promptly exert the right of rescission as soon as he discovers the fraud.

OPINION

Burgess, J.

This is an action for $ 6,000, alleged to have been the agreed price for a tract of land owned by plaintiff, and conveyed by him, at the request of defendants, to one Owens, in payment for a herd of horses purchased by defendants from Owens, and to foreclose a mortgage on said horses, executed by defendants to plaintiffs to secure the payment of the purchase price for said land. The defendants are W. H. Robinson, E. Siple, G. W. Siple and Walter D. Beanblossom.

The petition, leaving off the formal parts, is as follows: "Plaintiff states that on the -- day of August, 1892, defendants were justly indebted to plaintiff in the sum of $ 6,000, being the amount of purchase price of the northeast quarter of section 30 and the northwest quarter of section 29, in township 40, range number 4, in Jefferson county and state of Missouri, which said real estate was by the plaintiff conveyed to one Owens, of Lyon county, state of Kansas, at the instance and request of the defendants, and for their use and benefit; and said defendants then and there agreed to pay said sum of money on or before the first day of May, 1893, and secure the plaintiff by executing and delivering to plaintiff a chattel mortgage on certain standard bred horses, mares and colts, by them purchased from said Owens, and by them received from said Owens in exchange for said land; and that afterward, on the -- day of August, 1892, the defendants, in pursuance of said agreement to secure said indebtedness, executed and delivered to plaintiff their certain contract, herewith filed, by which they acknowledged this indebtedness to plaintiff in said sum of $ 6,000, and agreed to pay the same on or before May 1, 1893, by which they agreed that plaintiff should have a lien on all of the personal property, consisting of standard bred horses, mares and colts, so received by them from said Owens, to secure the payment of the said sum of $ 6,000, together with interest thereon, by which said writing a lien was created in favor of plaintiff on said stock of horses to secure said sum, which said stock of horses are now on the farm of E. Siple, in Vernon county, Missouri, and specifically described as follows, to wit: * * *

"Plaintiff alleges and charges that the said sum of $ 6,000 became due and payable, together with six per cent interest thereon from the -- day of August, 1892, on the first day of May, 1893. The defendants have each of them failed and refused, and still fail and refuse, to pay said sum of money or any part thereof, and the same, together with the interest thereon, remains due and unpaid.

"Wherefore plaintiff prays that plaintiff have and recover of and from the defendants the said sum of $ 6,000, together with six per cent interest from the -- day of August, 1892; and that plaintiff's said lien on above described personal property be enforced, and that the said judgment be decreed and declared by the court to be a lien on all of said property, and defendants' equity of redemption in and to all said property be foreclosed, and that the same be ordered sold and the proceeds thereof be applied in satisfaction of plaintiff's debt and the costs herein, and for all other and further relief, and for costs."

To which petition defendants E. Siple, G. W. Siple and W. D. Beanblossom filed the following answer:

"Now comes E. Siple, G. W. Siple and Walter Beanblossom defendants in the above cause, for their separate answer to plaintiff's amended petition deny each and every allegation therein contained, except what is expressly hereinafter admitted.

"Said defendants admit the execution of the written contract referred to in plaintiff's petition. They admit the delivery of the horses referred to on the E. Siple farm, and that they are now there.

"Defendants, further answering, state that the said written contract referred to in plaintiff's petition was the only contract they entered into with the plaintiff, or that they ever agreed to. Defendants state that they ought not to be held to a performance of said contract, and for defense thereto allege:

"First -- That they were induced to enter into said contract by the fraudulent representations of the defendant W. H. Robinson, hereinafter set forth, while acting as agent or pretended agent of the plaintiff.

"Said defendants allege that said contract was signed under the following state of facts: That on the twenty-second day of July, 1892, the defendant W. H. Robinson represented to these defendants that the plaintiff in this case, W. M. Robinson, the brother of the said W. H. Robinson, was the owner of certain standard bred and thoroughbred horses, which could be procured at a very low figure, and out of which much money could be made; that by said representations and others hereinafter mentioned he induced these defendants to enter into a contract of partnership, by which all of said defendants were to purchase said horses of the plaintiff for the sum of $ 6,000, and to keep them and breed them and raise fine horses for sale; the said W. H. Robinson to have and own a one half interest in said firm and to be entitled to one half of the profits of the said business, and the other defendants to have each one sixth interest in the business; that said contract was entered into, and at the same time a written proposition, prepared by said W. H. Robinson, for the purchase of said horses from the plaintiff, was also entered into; that said horses, in pursuance thereof, were shipped to the farm of the defendant E. Siple, in Vernon county, Missouri.

"The said defendants allege that the said W. H. Robinson induced them to enter into both of said contracts of partnership and purchase by false and fraudulent representations, that is to say, that he represented that all of said horses were standard bred, standard producers and thoroughbreds; that fourteen of the mares purchased were with foal; that all of said horses were in good condition and healthy; that he would furnish properly authenticated certificates of pedigree showing that said horses were all duly registered in the stock book; that all of said representations were false and were known to be false when made, and were made to induce the defendants to enter into said contract; that defendants believed said representations, and relied upon them, and acted upon the faith of them; that in fact said horses are neither standard bred, or standard producers or thoroughbreds; that only three of said mares were in foal; that said horses were not healthy nor in good condition, but were suffering from the distemper; that certificates of pedigree have never...