Sawyer v. Walker

• Decision Date: 02 April 1907
• Parties: SAWYER v. WALKER.
• Court: Missouri Supreme Court

102 S.W. 544

204 Mo. 133

SAWYER v. WALKER.

Supreme Court of Missouri, Division No. 2.

April 2, 1907.

1. EVIDENCE — PAROL EVIDENCE — RECEIPTS — SHOWING FRAUD.

Where a party to a contract is induced by the fraudulent representations of the other party to receive a sum in full settlement of his interest, and to give receipts therefor, when in fact he is entitled to more, the receipts are no bar to his action for the balance due him, but may be explained by parol evidence.

2. FRAUD — ACTIONS — PLEADING — FORM AND ALLEGATIONS — MATTERS OF EVIDENCE.

In an action for fraud and deceit, whereby a person was deprived of his rights under a contract, it was not necessary to set out the contract in the petition, since it was only evidence.

3. SAME.

In an action for fraud and deceit, where the plaintiff procured purchasers for land held for sale by the defendant, under an agreement that he was to share equally with defendant in the commissions, an averment in the petition "that the plaintiff accepted said proposition and began negotiations with various parties to perfect sales of the land * * * for which the defendant was the agent in charge," etc., sufficiently alleges an acceptance by plaintiff of defendant's proposition, without setting out the evidence by which plaintiff expected to prove such acceptance.

4. CONTRACTS — REQUISITES — SUFFICIENCY OF ACCEPTANCE.

Where a letter setting forth a proposition was merely a reduction to writing of a prior verbal agreement under which a person had been acting prior to the time it was reduced to writing, it was not necessary that he should make a written acceptance of the proposition contained in the letter.

5. FRAUD — ACTIONS — ADMISSIBILITY OF EVIDENCE.

In an action for fraud and deceit, where it was alleged that the plaintiff procured purchasers for defendant, a real estate broker, under an agreement that he was to share equally in the commissions on land they bought, and that defendant concealed the true amount of commission he had received, and paid plaintiff only a part of what he was entitled to, the correspondence between defendant and the owners of the property sold was admissible on the issue of fraud.

6. JUDGMENT—PERSONS CONCLUDED—PERSONS NOT PARTIES.

In an action for fraud and deceit, where the plaintiff claimed that defendant, a broker, had withheld part of the commissions on land sold to which the plaintiff was entitled, it was not error to exclude a judgment in another case against the broker wherein witnesses testified that the plaintiff herein had told them that neither plaintiff nor the broker were to get a commission for selling the land, since the plaintiff was not a party to that action, and his rights could not be concluded by it.

7. CONTRACTS—INSTRUCTIONS—SUBMISSION OF QUESTIONS OF LAW.

Where, by the terms of an agreement, plaintiff was to furnish defendant customers for any lands defendant had for sale in Missouri or Illinois, and defendant was to divide equally with him any commissions he might receive for such sales, and it was a question of fact whether the defendant had for sale at that time a certain tract, the submission to the jury whether that tract was included in the terms of the agreement was not erroneous as submitting a question of law.

8. APPEAL—REVIEW—SHIFTING POSITION ON APPEAL.

Where a party has obtained instructions submitting certain questions to the jury, he cannot shift his position on appeal, and contend that they were questions of law for the determination of the court.

9. PLEADING—REPLY—ADMISSIONS—EFFECT.

In an action for fraud and deceit, where the plaintiff claimed that the defendant had withheld part of the commissions to which plaintiff was entitled, a reply, which admitted the signing of a contract agreeing to take the amount received and of a receipt in full, but which also alleged that the signatures were obtained by fraudulent representations of the defendant that the sums named therein were all the sums due plaintiff, and that the contract and receipt were void, was not a bar to plaintiff's recovery.

Appeal from Circuit Court, Boone County; Alex. H. Waller, Judge.

Action by Calista T. Sawyer, administratrix of the estate of W. G. Sawyer, against Alten M. Walker. From a judgment for plaintiff, defendant appeals. Affirmed.

Pearson & Pearson, E. W. Hinton, and C. J. Walker, for appellant. Matson & May and N. T. Gentry, for respondent.

GANTT, J.

This is an appeal from the judgment of the circuit court of Boone county in favor of the plaintiff for $4,850. The action was one for damages for fraud and deceit growing out of certain contracts between the defendant and W. G. Sawyer for commissions on the sale of real estate. Since the commencement of this action, W. G. Sawyer has died testate, and Calista T. Sawyer has been substituted as his administratrix.

At the very threshold, we are confronted with a motion to dismiss the appeal, on the ground of the insufficiency of the abstract filed by the appellant in the cause. Owing to the fact that this motion was not filed until three days after the cause was set down for argument in this court, and was only brought to the attention of this court on the day the cause was argued, the motion was taken with the cause, and the matters therein assigned can best be disposed of in the consideration of the case.

The petition, in substance, alleges that in November, 1901, while the plaintiff was a resident of the state of Minnesota, he met the defendant in Pike county, Mo., and was informed by the defendant that he was a real estate agent and had various tracts of land and farms in the states of Missouri and Illinois for sale, and thereupon negotiations were had between plaintiff and defendant, whereby defendant agreed with plaintiff that, if plaintiff would furnish defendant a customer or customers for any lands the defendant had for sale in said states, defendant would divide equally with plaintiff any commissions received for such sales at the time the deals were closed. This contract was reduced to writing in January, 1902. That, in pursuance of said contract, plaintiff began negotiations with various parties to make sales of the land situated in Pike county, Mo., of which the defendant was the agent and had the selling. That, at the date of said contract, the defendant represented to the plaintiff that, among other tracts of land which the defendant as agent had for sale, was one containing 6,760 acres, known as the "Block land," or tract, situated in the county of Pike, maps of which said land and advertising matter showing its position were shown by defendant to plaintiff, and defendant represented to plaintiff that said tract belonged to the Block Land & Farming Company, a corporation under the laws of Missouri. That defendant, for the purpose of defrauding plaintiff out of his compensation, deceitfully, fraudulently, and falsely represented to plaintiff that he (the defendant) was only to receive for commissions and compensations for the sale of said Block tract whatever sum he could sell the same for over $80,000; whereas, in truth and in fact, he was to and did receive for his commission for such sale all over $67,500, and the said tract was sold for $80,000. That plaintiff believed and acted upon said deceitful and false representations so made by defendant to the plaintiff, and so believing and relying upon said representation, and pursuant to and in carrying out in good faith his contract with the plaintiff in obtaining a purchaser therefor, plaintiff induced, among others, Charles C. Weber and Elbert L. Carpenter, residents of the state of Minnesota, to negotiate with the defendant for the purchase of the Block tract of land, and on the 15th day of February, 1902, said Weber and Carpenter contracted for the purchase of said Block tract for the sum of $80,000, through the instrumentality of plaintiff with defendant as agent in charge of said land, and entered into a written contract for said sale, which was marked "Exhibit B" and filed with the petition. That at said time both said Weber and Carpenter were financially able and willing to purchase said land at the cash price of $80,000, and afterwards, to wit, on the 28th day of February, 1902, did pay, or cause to be paid, said sum of $80,000 to the Block Land & Farming Company for said land. That, in pursuance of a secret understanding and agreement between the defendant and the said Block Land & Farming Company, the defendant was to and did on the said 28th day of February, 1902, receive as his compensation and commission for the making of said sale the sum of $12,500. That plaintiff was then and there entitled to one-half of said commission so received by defendant for the making of said sale, but that the receipt of said $12,500 by defendant was without the knowledge of plaintiff, and was not known by plaintiff until some time thereafter, and, immediately upon discovery of such payment to and receipt by defendant, plaintiff demanded his just proportion thereof, and employed attorneys to recover what he had been so defrauded of by defendant. That said sale was consummated in the city of St. Louis, and plaintiff was not present, but soon afterwards the defendant knowingly, willingly, deceitfully, and fraudulently represented to plaintiff that he did not receive any compensation or commission for making said sale, and plaintiff, being ignorant of the true facts, and acting upon the said false and deceitful statement made by defendant as last aforesaid, agreed to accept of defendant for plaintiff's services $1,500 in cash and an additional sum of $1,000, to be paid plaintiff at a future date. And that while plaintiff was still ignorant of the true facts, to wit, on the 3d day of April, 1902, and while still believing and relying upon said deceitful representations, plaintiff received from defendant the said additional $1,000 and receipted to defendant in full for his compensation and commission. Wheref...