Shearer & Martin v. Hill
| Decision Date | 06 May 1907 |
| Parties | SHEARER & MARTIN, Respondent, v. JAMES A. HILL, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Barton Circuit Court.--Hon. Levin W. Shafer, Judge.
AFFIRMED.
Judgment affirmed.
H. W Timmonds for appellant.
(1) Mrs. Martin, plaintiff W. A. Martin's wife, was clearly incompetent to testify on behalf of her husband and the objection to her testimony should have been sustained by the court. Moore v. Wingate, 53 Mo. 409; Tucker v Gentry, 93 Mo.App. 663; Lynn v. Hockaday, 162 Mo. 123; 2 Rice on Evidence, sec. 381, and cases cited. (2) The objection to plaintiff Martin and witness Curry testifying that they had been "corresponding for eight months" about the farm that Curry afterwards bought should have been excluded. (3) Defendant's demurrer at the close of plaintiff's case should have been sustained. There is not the slightest evidence that the defendant ever received any money from plaintiffs for his use and benefit which would raise an implied promise to return to plaintiffs on demand. The testimony wholly failed to show that defendant was guilty of deceit. Jolliffe v. Collins, 21 Mo 342. (4) An innocent misrepresentation made through mistake without knowledge of its falsity and with no intention to deceive will not justify a personal action for damages. Redpath Bros. v. Lawrence & Cushing, 42 Mo.App. 110. (5) If the representations complained of were made as charged there is no liability shown for the reason that there is no testimony that the defendant was not a real estate agent, and on the contrary it is abundantly shown that he was a real estate agent, and for the further reason that the facts clearly shown that defendant understood Curry the purchaser of the land, to come to Missouri with him for the purpose of buying a farm, so that if the representation with reference to Curry coming to Missouri was in fact false, it nowhere appears that defendant knew it was false, but on the contrary, honestly believed it to be true. Bank v. Sells, 3 Mo.App. 94, and cases cited; Koontz v. Kaufman, 31 Mo.App. 419; Bank v. Byers, 139 Mo. 652. (6) A plaintiff cannot recover for deceit where by the exercise of reasonable care he could have ascertained the truth. (7) The law favors settlements, and here was a claim made by the defendant of the plaintiffs for half of the commission earned in the sale of the Bumgarner farm. This settlement is a complete bar to plaintiff's recovery. The court ought to have given instructions number 1, 2 and 3, asked by defendant and refused by the court. Mateer v. Railway, 105 Mo. 354; Wonderly v. Christian, 91 Mo.App. 158; Tansey v. Railway, 90 Mo.App. 105; Reisenleiter v. Kirche, 29 Mo.App. 294; Quinlan v. Keiser, 66 Mo. 603; Exter v. Sawyer, 146 Mo. 322. (8) The first count in plaintiff's petition is for "money had and received." This action, says Mr. Bouvier, "is the technical designation of a form of declaration in assumpsit, wherein the plaintiff declares that defendant had and received money." 2 Bouvier, Law Dict., 193. (9) The second count in the petition is for deceit, which constitutes a tort and has no element of contract. 1 Hilliard on Torts, sec. 4, chap. 1. (10) The verdict in this case should have been set aside and the judgment arrested for the further reason that it is a general verdict and does not designate on which count of the petition the jury found for the plaintiffs. Bigelow v. Railroad, 48 Mo. 510; Owens v. Railroad, 58 Mo. 394; Johnson v. Bedford, 90 Mo.App. 47 and cases cited.
Cole, Burnett & Moore for respondent.
(1) No error was committed in admitting the testimony of Mrs. Martin. Her agency in that very business is clearly shown, and she was certainly competent. McGuire v. DeFrese, 77 Mo.App. 685; Engerham v. Wheatherman, 79 Mo.App. 484. Even if technical error, it was about a matter not disputed but fully shown, and was therefore harmless. Love v. Love, 98 Mo.App. 571; State v. Gatlin, 170 Mo. 370; Hamilton v. Crowe, 175 Mo. 648; Reno v. Kingsbury, 39 Mo.App. 244; Bank v. Longfellow, 96 Mo.App. 394. (2) The existence of a writing, or the fact of correspondence on some subject, may be shown orally. 2 Encyc. of Evidence, 301, and notes 79 and 80; Massey v. Bank, 113 Ill. 334; Snodgrass v. Bank (Ala.), 60 Am. Dec. 505; Knapp v. Wing, 72 Vt. 334; Railroad v. Mahoney (Ill.), 25 Am. Rep. 299; 17 Cyc., 478. (3) The first count states a perfect cause of action for money had and received, and such action is very broad and flexible. Banking Co. v. Com. Co., 195 Mo. 288; Richardson v. Drug Co., 92 Mo.App. 521 and 532; Antonelli v. Basile, 93 Mo.App. 140; York v. Bank, 105 Mo.App. 137; By fraud--2 Greenleaf on Ev. (14 Ed.), sec. 120; Magoffin v. Muldrow, 12 Mo. 512. (4) Plaintiffs' evidence, if believed by the jury, certainly made a case of deceit or obtaining money by false pretenses. Not an element was lacking. Edwards v. Noel, 88 Mo.App. 439; Live Stock Co. v. White, 90 Mo.App. 503. (4) The trouble with counsel's theory of settlement or accord and satisfaction is, that it rests upon the very fraud and deceit forming plaintiffs' cause of action. Such a cause of action necessarily attacks a settlement. Dry Goods Co. v. Goss, 65 Mo.App. 60; Wetmore v. Crouch, 150 Mo. 683; Mires v. Summerville, 85 Mo.App. 187; Caldwell v. Henry, 76 Mo. 260; Judd v. Walker, 114 Mo.App. 128; State v. Wilson, 66 Mo.App. 546; State v. Keyes, 196 Mo. 163. (5) There is nothing in the point that the first count is in assumpsit and the other detailing the facts. Allen v. Aylor, 111 Mo.App. 257. (6) Counsel thinks the general verdict bad. But he overlooks an obvious distinction. Nolan v. Bedford, 89 Mo.App. 172; Maguire v. Transit Co., 103 Mo.App. 472; Litton v. Railroad, 111 Mo.App. 149; Johnson v. Bedford, 90 Mo.App. 47--48; Campbell v. King, 32 Mo.App. 38; Zellars v. Water & Light Co., 92 Mo.App. 107; Rinard v. Railway, 164 Mo. 284.
The plaintiffs' petition is in two counts, one for money had and received, the other for fraud and deceit. There was a general verdict for the plaintiffs.
It appears from the evidence in plaintiffs' behalf, which, since the verdict is for them, we must accept as true, that they were real estate agents in Barton county and had been in correspondence for several months with one Curry, who resided in Illinois, about the sale of a farm which they were agents to sell. Curry and defendant resided in the same town in Illinois and the latter owned a farm near the one about which Curry and plaintiffs were corresponding. Curry and defendant came to this State together and proceeded to plaintiffs' office together, and they, with one of plaintiffs, went to the farm, looked it over and Curry bought it. The commission on the sale due plaintiffs from the owner was one-hundred and sixty-five dollars. After the contract of sale was signed, Curry returned to Illinois before defendant and after his departure defendant went to plaintiffs and represented to them that he brought Curry from Illinois to them to buy the farm and that he had paid his way over, and that he was entitled to one-half the commission they were to receive. Plaintiffs believed such representations and relied upon them as being true and, recognizing a custom to divide commission when a sale was made in such circumstances, they told defendant that when they received the commission they would divide. That in about thirty days afterwards they did receive their commission of one hundred and sixty-five dollars, and paid to defendant eighty dollars thereof, he accepting that sum as his share. The evidence in plaintiffs' behalf then showed that defendant's representations as to bringing Curry to them and paying his way were untrue.
It is claimed by defendant that plaintiffs failed to make out a case and his demurrer to the evidence should have been sustained. This claim is based mainly upon the contention that plaintiffs did not rely upon defendant's representations, and that they lacked diligence and prudence in ascertaining whether they were true. There is no doubt that it is necessary to an action for fraud that the complainant must have relied upon the false representations; otherwise there is no deception or imposition. So it is also true that the courts will not listen to the complaint of one who, having an opportunity at hand, has refused to exercise his senses for his own protection. [Mires v. Summerville, 85 Mo.App. 183; Hendricks v. Vivion, 118 Mo.App. 417, 94 S.W. 318.] In the latter case, the question is discussed and authorities cited.
In a criminal case for false pretenses, the Supreme Court has stated the law as not affording redress in every case of false and fraudulent representations "for if the representations are absurd or irrational, or such as are not calculated to deceive the party to whom they are made, or when the pretenses or representations are such that the party to whom they are made had the means at hand at the time to detect their falsity, then, and in that case, there would be no criminal offense under the true spirit and purpose of the statute." [State v. Keyes, 196 Mo. 136, 151, 93 S.W. 801.] At page 155 of the report of the opinion in that case, Judge Fox quotes with affirmative approval from Woodbury v. State, 69 Ala. 242: ...
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