Shearer v. Hill

• Decision Date: 06 May 1907
• Citation: 102 S.W. 673,125 Mo. App. 375
• Parties: SHEARER et al. v. HILL.
• Court: Missouri Court of Appeals

102 S.W. 673

125 Mo. A. 375

SHEARER et al. v. HILL.

Kansas City Court of Appeals. Missouri.

May 6, 1907.

1. FRAUD — FALSE REPRESENTATIONS — OPPORTUNITY TO DISCOVER FALSITY.

Where defendant obtained money from real estate brokers under misrepresentation that he had brought to them one who had purchased land and had paid his expenses, and was entitled to half the brokers' commission, the purchaser having returned to a distant state, the brokers can recover it, though 30 days elapsed between defendant's representations and the payment, and plaintiffs could have ascertained their falsity by writing to the purchaser; defendant having requested them to not let the purchaser know he was getting part of the commission, as they were neighbors.

2. SAME — KNOWLEDGE OF FALSITY.

Where defendant obtained from real estate brokers half of a commission for selling land under a fraudulent representation that he brought the purchaser to them, their right to recover was not affected because the purchaser had told them, before the money was paid defendant, that the purchaser came in response to his correspondence with the brokers.

3. APPEAL — REVIEW — HARMLESS ERROR — ADMISSION OF EVIDENCE.

Though, in an action by her husband, the wife was not a competent witness in his behalf, having not been his agent, the admission of her evidence was harmless error, where it could not have had any effect on the verdict.

4. FRAUD — ACTION TO RECOVER PAYMENT — EVIDENCE — ADMISSIBILITY.

In an action to recover money paid by real estate brokers to defendant under his fraudulent representation that he brought a land buyer to them, evidence was admissible that the buyer and the brokers had correspondence, though no attempt was made to show the contents thereof; it not being necessary to produce it, when it was only sought to show that there was correspondence.

5. COMPROMISE AND SETTLEMENT — PAYMENT OF FRAUDULENT CLAIM — EFFECT.

Where one deceives others into the belief that they owe him a fixed sum, but states he will take a lesser sum, and they pay it to him, the law of settlements, concluding parties to its terms, cannot be applied to defeat a right to recover the amount fraudulently received.

6. TRIAL — SEVERAL COUNTS — NECESSITY FOR SEPARATE FINDINGS.

Where one transaction or cause of action is stated in different ways in separate counts, a

general verdict without separate findings is not improper.

7. APPEAL — REVIEW — CONCLUSIVENESS OF FINDINGS.

The verdict of a jury on conflicting evidence is conclusive on appeal.

Appeal from Circuit Court, Barton County; L. W. Shafer, Judge.

Action by P. R. Shearer and another against James A. Hill. From a judgment for plaintiffs, defendant appeals. Affirmed.

H. W. Timmonds, for appellant. Cole, Burnett & Moore, for respondents.

ELLISON, J.

The plaintiffs' petition is in two counts; one for money had and received, and 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 $165. 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 30 days afterwards they did receive their commission of $165, and paid to defendant $80 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....