Shoup v. Tanner-Buick Co.

Decision Date08 November 1922
Docket NumberNo. 14481.,14481.
Citation245 S.W. 364,211 Mo. App. 480
PartiesSHOUP v. TANNER-BUICK CO.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Buchanan County; Thomas B. Allen, Judge.

Action by Charles A. Shoup against the Tanner-Buick Company. From a judgment of dismissal, plaintiff appeals. Affirmed.

John E. Dolman, of St. Joseph, for appellant.

Strop & Mayer, of St. Joseph, for respondent.

BLAND, J.

This is an action for the cancellation of a contract for the sale of an automobile and to recover its purchase price. The court found the issues for defendant and dismissed plaintiff's bill. Plaintiff has appealed.

The following are the allegations of the petition in reference to the false and fraudulent representations claimed to have been made by defendant to plaintiff:

"Plaintiff further states: That prior to the said 10th day of March, 1921, said defendant repeatedly solicited said plaintiff to purchase said car, but said plaintiff declined, for the reason that in his opinion the price of such cars would decline in line with every other commodity, and that he would wait until fall before purchasing any car. That thereupon said defendant agreed that if plaintiff would purchase a car at that time that it would protect him against any decline during the selling season. Thereupon plaintiff asked when the selling season expired, and was informed by said defendant that said season expires July 1st. Thereupon plaintiff declined to purchase said car at said time, unless defendant would protect him against any decline in price until August 1, 1921. Thereupon said defendant agreed to protect said plaintiff against any decline in price until August 1, 1921. Thereafter said defendant went to the residence of said plaintiff for the purpose of dosing said deal, and there presented said plaintiff with a printed form of contract of sale, a copy of which is hereto attached, marked Exhibit A, and made a part hereof. Thereupon said plaintiff declined to sign said contract, unless defendant would incorporate therein the terms of their said agreement, to wit, that plaintiff should be protected against any decline in the price of said cars until August 1, 1921. Thereupon said defendant falsely and fraudulently, and for the purpose of fraudulently obtaining plaintiff's signature thereto, represented to plaintiff and assured to him that it was entirely unnecessary to incorporate said protecting clause in said contract, and falsely and fraudulently stated and represented that, if there was a decline " in price before said August 1, 1921, the Buick Motor Company would immediately refund the amount of any such decline. That in making said statement said defendant well knew that it did not represent the Buick Motor Company, and had no authority to speak for it, all of which was unknown to plaintiff, but that said defendant falsely and fraudulently made said statement without any intention of protecting said plaintiff against any decline in price as aforesaid, but for the fraudulent purpose and design of deceiving said plaintiff and of procuring said plaintiff's signature to said contract by said false and fraudulent statements and representations. * * * Plaintiff further states that he was induced to purchase said car at said time and to sign said contract solely by reason of said false and fraudulent representations of said defendant, and that he would not have purchased said car at said time, nor have signed said contract except for such false and fraudulent representations made to him at said time by said defendant that said defendant and said Buick Motor Company would protect him against any decline in the price of cars until August 1, 1921, as aforesaid. That plaintiff on August 3, 1921, duly tendered said car to said defendant as aforesaid, and still stands ready and willing and is able to deliver said car to said defendant."

The facts show that plaintiff, who is engaged in the mercantile business in St. Joseph, Mo., on March 9, 1921, purchased of defendant a new seven-passenger Buick automobile. At that time plaintiff was the owner of a car of an older model, and had no intention of buying a new one; but one of defendant's agents called at his place of business and solicited plaintiff to buy a new automobile. Plaintiff told the agent that he was not anxious to buy a car at that time, and that he had made up his mind not to buy until fall, and that if he bought then he "would have to have special inducements as to terms and prices in order to consummate any deal earlier than fall, because our line was declining; all lines of goods were declining and business was very slow." The agent admitted that he was not selling very many machines. Plaintiff's son told the agent:

"All commodities in practically every line of merchandise were declining. Automobiles had been the only one that had not declined, and that it appeared to me to be very foolish to advise father to buy a car at the peak price."

The agent showed plaintiff a letter addressed to defendant from the Buick Motor Company, the manufacturer of the automobile, which letter stated that there would be no decline in the price of automobiles during the selling season. In answer to plaintiff's inquiry as to what was the end of the selling season, the agent replied: "July 1st." Thereupon plaintiff told the agent that July 1st would not answer his purpose; that he wanted to be protected against decline until August 1st, which he (the agent) agreed and consented to and said that part was satisfactory. The agent said:

"That the Buick Motor Company would send a check without any request; that I would not even have to ask for it, if there was any decline; the Buick Motor Company would send a check;" "that I need not give myself any concern whatever about that."

Plaintiff testified that it was upon these terms the deal was closed. Thereafter the agent exhibited to plaintiff a contract, covering the sale of the automobile, which contained the following clause:

"It is mutually understood that there are no terms or conditions of any kind affecting the sale or warranty of the above goods not contained herein."

Plaintiff called the agent's attention to this clause, and asked "to have our guaranty inserted," and again told the agent why he was not anxious to buy a car at that time. The agent assured plaintiff that the contract was merely a Buick form, and that, if he signed the contract, "we will give you the benefit of any decline in price," and again exhibited a letter from the manufacturers, and stated that the representations therein contained were better than any writing the agent could give plaintiff, and that if he would sign the contract the Buick Motor Company would send him the amount of any reduction in price of cars before August 1st. Relying upon these representations, plaintiff signed the contract. After the car was paid for, plaintiff's son stated in the presence of Mr. Tanner, an officer of the defendant:

"Father, it is too bad that we did not have this date of guaranty in the contract."

Plaintiff answered:

"It is all right as long as they thoroughly understand it, and they are a good reliable firm, and it is unnecessary."

Mr. Tanner, upon hearing this, said nothing.

On May 31, 1921, the price of the model of car which plaintiff had purchased declined $330. Plaintiff wrote defendant that, as the price of the car that was sold to him was guaranteed to him to August 1st, he expected to receive a check from defendant of the amount of the decline. Defendant answered this letter by saying that there had been no guaranty in the price to August 1st, and refused to pay plaintiff. Plaintiff attempted to get a settlement of money with the defendant until August 1st, when, after talking to his attorney, he tendered back the car and demanded the purchase price. Defendant introduced no testimony.

It is contended that the statements made to plaintiff that defendant had a letter from the manufacturer, which was a representation better than any writing guaranteeing that there would be no decline in the price until the end of the selling season, which was July 1st, and that defendant would extend that guaranty until August 1st, "were the affirmation of material existing facts relating to existing business conditions and arrangements in reference to which the contract was made, and, being false, constituted a fraudulent misrepresentation, and not the mere expression of an opinion or a mere promise to be performed in the future." Of course, it is well settled in this state that a promise to do something in the future is not a misrepresentation of an existing fact, even though there is no intention to fulfill the promise at the time it was made. Younger v. Hoge, 211 Mo. 444, 455, 456, 111 S. W. 20, 18 L. R. A. (N. S.) 94; Missouri Loan & Investment Co. v. Trust Co., 175 Mo. App. 646, 158 S. W. 111; 1 Black on Rescission and Cancellation, § 90, p. 229, and note. But it is held that, where representations do not relate so much to a future event as to existing facts, conditions, or arrangements on which an expectation of that event may be founded, they are not to be regarded as merely promissory. Stonemets v. Head, 248 Mo. 243, 265, 154 S. W. 108; 1 Black on Rescission and Cancellation, par. 89, p. 224; Pomeroy's Equity Jurisprudence (4th Ed.) par. 878, pp. 1814, 1815. It is stated in Stonemets v. Head, supra:

"The statements which most frequently come within this branch of the rule are those concerning value."

We do not think that the petition is broad enough to allege that fraud was committed in the manner now contended for. The petition alleges that to induce plaintiff to sign the contract defendant stated that it would incorporate in their agreement the provision that plaintiff should be protected against any decline in the price of cars until August 1, 1921, and assured him that it was unnecessary to incorporate such...

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