Selle v. Wrigley

• Decision Date: 02 May 1938
• Docket Number: No. 19130.,19130.
• Citation: 116 S.W.2d 217
• Court: Missouri Court of Appeals
• Parties: HERMAN J. SELLE, APPELLANT, v. ROBERT WRIGLEY, RESPONDENT.

116 S.W.2d 217

HERMAN J. SELLE, APPELLANT, v. ROBERT WRIGLEY, RESPONDENT.

No. 19130.

Kansas City Court of Appeals. Missouri.

May 2, 1938.

Appeal from the Circuit Court of Andrew County. — Hon. R.B. Bridgemen, Judge.

REVERSED AND REMANDED.

McCollum & Ewald and Grover C. Sparks for appellant.

Breit & Roberts for respondent.

REYNOLDS, J.

This appeal comes to us from the Circuit Court of Andrew County. The action is for damages based upon fraud and deceit, in which the plaintiff alleges and claims that he was induced to remain with and perform services for the defendant because of certain fraudulent promises and fraudulent representations to the effect that the plaintiff had been adopted by the defendant as his son.

The plaintiff filed his original petition in the circuit court of Andrew county on October 24, 1935, and thereafter, on November 18, 1936, filed his amended petition, to which latter the defendant filed a demurrer based upon the grounds that it failed to state sufficient facts to constitute a cause of action and that, upon its face, it showed that the plaintiff's cause of action, if any, had been barred by the Statue of Limitations, which was sustained by the trial court on the ground that the action was barred by the Statute of Limitations.

The demurrer admits all of the facts well pleaded, alleged in the plaintiff's amended petition, which are substantially as follows: That the plaintiff was a ward of The Children's Aid Society of New York City; that, on January 8, 1909, and shortly after the plaintiff had arrived at the age of fourteen years, he was placed by said society in the home of Margaret Wrigley in Andrew county, Missouri, under a contract whereby said Margaret Wrigley agreed to keep and provide for the plaintiff until he became eighteen years of age; that he became eighteen years of age on December 22, 1912; that Margaret Wrigley was a sister of the defendant, Robert Wrigley; that neither Margaret nor Robert was ever married; that they resided together as one family upon a dairy farm in Andrew county; that the defendant assumed and took control of the plaintiff from the time he was first placed in the Wrigley home and the plaintiff worked regularly for the defendant, doing whatever work was assigned him; that shortly prior to the plaintiff's eighteenth birthday and in November or December, 1912, the defendant induced the plaintiff to continue working on the farm after he was eighteen years of age by promising the plaintiff a team and wagon and a little later induced the plaintiff to continue working on the farm until he became twenty-one years of age by promising him $1000 at that time, to enable him to start farming on his own account; that, shortly prior to his twenty-first birthday and about November, 1915, the defendant informed the plaintiff that the defendant and his sister, Margaret Wrigley, had adopted the plaintiff as their son and stated that he was to be an heir at law of the defendant and his said sister and, in that way, would be legally protected and assured of compensation for his labors on the farm and that the plaintiff was to manage the farm and have an interest in the dairy herd; that the plaintiff relied upon such statements and promises and continued to work upon said farm for the defendant without pay until about July 15, 1917, when certain difficulties arose between them and the defendant discharged the plaintiff; that, thereafter and under date of November 26, 1917, the plaintiff demanded pay from the defendant for labor rendered by the plaintiff to the defendant between the time of his eighteenth birthday and July 15, 1917; that, under date of December 9, 1917, the defendant wrote the plaintiff a letter (which is pleaded in haec verba in the petition), stating that the plaintiff was the legally adopted son of the defendant and that he had investigated the laws of Missouri and had ascertained that the plaintiff could not recover for his services because of said adoption and that, while divorce laws separate husband and wife, there was no procedure by which the relationship of father and son could be dissolved, and signed said letter, "Your Father by Adoption, Robert G. Wrigley;" that the defendant had not adopted the plaintiff as his son but that said letter was written and the representations concerning an adoption were made for the purpose of misleading and deceiving the plaintiff and inducing him to believe that he was not entitled to compensation because of the alleged adoption and for the purpose of preventing him from making inquiry as to his legal rights and to induce him to drop his demand; that said alleged adoption was a well laid and cunningly conceived design, plan, and scheme to deceive the plaintiff and obtain his services without compensating him therefor: that as a part of and in furtherance of said plan and scheme the defendant, after the death of his sister (Margaret Wrigley), caused the name of the plaintiff to be listed as an heir of the said Margaret Wrigley and caused the administrator of her estate to include the plaintiff's name as an heir in certain publication notices in connection with administration proceedings upon her estate, when in truth and fact the plaintiff was no such heir and the defendant had full knowledge thereof, and the plaintiff received nothing from said estate; that the plaintiff believed the statements and representations made by the defendant relative to said adoption and relied and acted thereon; that he did not discover that such statements were false and untrue until within ninety days prior to the filing of this suit, when he was informed by third parties that the defendant had stated that the plaintiff was not an adopted son; that, thereupon, the plaintiff caused an investigation to be made and, for the first time, learned that he had not been adopted by the defendant; that, because of the said fraud, deceit, and misrepresentations, the plaintiff has been damaged in the sum of $1080, being the value of his said services at the rate of $20 per month for the fifty-four months the plaintiff worked for the defendant after he attained the age of eighteen years; and that said sum should bear interest at the rate of six per cent. from July 15, 1917, for which judgment is prayed.

OPINION.

1. The sole and only question on this appeal relates to whether or not the demurrer was properly sustained; and this is made to depend upon whether or not the amended petition shows upon its face that the plaintiff's cause of action is barred by Section 862. Revised Statutes of 1929, which, so far as pertinent here is as follows: "What within five years. Within five years: ... fifth, an action for relief on the ground of fraud, the cause of action in such case to be deemed not to have accrued until the discovery by the aggrieved party, at any time within ten years, of the facts constituting the fraud."

In determining whether the demurrer was properly ruled and sustained by the trial court, all of the facts well pleaded in the amended petition are to be taken and considered as true.

An analysis of the amended petition shows that the action is one for fraud and deceit, whereby the plaintiff seeks to recover for the reasonable value of services performed by him for the defendant in remaining with the defendant and working and laboring for him upon his farm for a period of about four and one-half years, from the time that the plaintiff became eighteen years of age to July 15, 1917, which services are alleged to have been induced by the defendant through false and fraudulent promises and representations made by him to the plaintiff — upon which the plaintiff relied as true — touching the adoption of the plaintiff by the defendant as his son and heir and that, by reason of such adoption, he would be fully compensated for remaining with the defendant after his eighteenth birthday and working for him upon his farm by the property he would receive from the defendant's estate as such adopted son and heir. The amended petition alleges facts sufficient to show the existence of a confidential and fiduciary relationship between the plaintiff and the defendant during the time that such services were performed and the statements complained of made.

The original petition was filed on October 24, 1935, more than seventeen years (as disclosed on the face thereof) after the rendition of the services the value of which is sought to be recovered and more than seventeen years after a demand by the plaintiff for the payment for such services and more than seventeen years after the refusal of the defendant to pay for the same and more than seventeen years after the commission of the alleged fraudulent acts complained of.

In the amended petition, it is alleged that the plaintiff did not discover that the representations made to him by the defendant touching his adoption by him were false and untrue and did not discover the fraud practiced upon him by the making of such representations until within ninety days before the original petition herein was filed.

2. The plaintiff contends that, upon the facts alleged in the amended petition, a confidential and fiduciary relationship existed between him and the defendant at the time that such representations were made to him touching his adoption and at the time that his services that were induced thereby were performed and at the time that such fraud was practiced upon him and that, by reason of such relationship, the plaintiff's cause of action did not accrue until the actual discovery of the untruthfulness of such statements and of the fraud practiced upon him, which, as above stated, was alleged in the amended petition not to have been until within ninety days prior to the filing of the original petition, and that his cause of action is not barred by the limitations provided in the fifth clause of the section above quoted — in other words, as we understand it, that, by reason of the facts alleged...