Simpson v. Burnett
| Decision Date | 11 June 1923 |
| Citation | 252 S.W. 949,299 Mo. 232 |
| Parties | JAMES P. SIMPSON v. S. D. BURNETT, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Willard P. Hall, Judge.
Reversed and remanded.
L. T Dryden, Burrus & Burrus and Gossett, Ellis, Dietrich & Tyler for appellant.
(1) At no place is it alleged that respondent in any manner relied in purchasing the land upon the alleged forged or false deed. There is no allegation that he would not have bought the land even at the price he paid for it, regardless of the alleged acts of the defendant. It was necessary for respondent to allege that he relied upon such deed. There is no allegation that Bertina H. Boyles in fact ever acquired or owned any interest in the land, nor is there any allegation that James A. Harlin, purported grantor in the alleged forged or false deed, ever in fact owned any interest in the land. For these omissions, the petition was insufficient to state a cause of action. Remmers v. Remmers, 217 Mo. 557; Morrow v. Franklin, 289 Mo. 563; 27 C. J. 36, sec. 156. (2) The court erred in refusing to sustain appellant's demurrer to the evidence at the close of plaintiff's case, and likewise erred in refusing to give the peremptory instruction in the nature of a demurrer to the evidence requested by appellant at the close of the entire case, for the reason that there was no testimony or other evidence that respondent purchased at the partition sale of the land in reliance upon the alleged forged or false deed. Secs. 1665, 2200, R. S 1919. (3) Error was committed in admitting either of the three letters from respondent's attorney, Mr. Williams containing hearsay and statements condemnatory and accusatory of defendant, and making demands of him. They were mere hearsay and self-serving statements and strongly prejudicial to appellant. (4) It was prejudicial and material error to admit the transcript of proceedings in the probate court by Bertina H. Boyles to remove and resulting in removal of appellant as administrator of the estate of Bloomer C. Boyles. The fact that she was the widow of Bloomer C. Boyles and that the appellant at one time supposed or even contended that she was not such widow, was not an issue in the case at bar. (5) Prejudicial error was committed by admitting over appellant's objection the instruments of settlement between respondent and Mrs. Boyles, called "covenant not to sue." It contains hearsay and prejudicial statements amounting to a charge of complicity in wrong-doing by appellant with others. (6) If plaintiff's petition stated a cause of action, his damage, so far as the value of the land is involved, occurred when he bought at the partition sale on February 7, 1916; the damages in that respect should be governed by the price paid, or the then value of the land. It was, therefore, error for the court to admit over appellant's objection the plaintiff's evidence as to the largely increased value of the land as of January, 1920. So in cases of breach of warranty: Leet v. Gratz, 92 Mo.App. 422; Hazlett v. Woodruff, 150 Mo. 534. Similarly in cases of fraud and deceit: Caldwell v. Henry, 76 Mo. 254; Brownlee v. Hewitt, 1 Mo.App. 360; Schultz v. Chrisman, 6 Mo.App. 338. It was error for the court to permit respondent to testify that he had given a twelve thousand dollar mortgage on the land, which was outstanding at the time of the trial. This was admitted as tending to show the value of the land, over the objection of appellant. (7) It was error for the court to permit the witness Booher to testify in detail to the history of the case of Boyles v. Simpson, and the incentives, conclusions and actions of himself, associates and client in the trial and conduct of that case. (8) Respondent's Instruction 4 is erroneous in that it leaves entirely out of consideration the defendant's honesty of purpose and reasonableness of excuse in the doing of the alleged wrongful act. (9) The question whether or not James A. Harlin had purchased an undivided one-fourth interest in the land in question at the sheriff's sale against Bloomer C. Boyles, depended upon the validity of the sheriff's deed and was a question for the court to determine and not to submit to the jury. That deed was void for lack of record and the court should have so determined and sustained appellant's peremptory instruction. (10) The Instruction 3 singles out a single fact as to the burden of proof, viz: knowledge of defendant that the real Harlin did not sign such deed. In this it accentuates such fact of knowledge as being the only material issue, and assumes that the real Harlin did not execute it. This in the face of the notarial certificate on such deed which made it primafacie evidence. Comer v. Taylor, 82 Mo. 347; Stone v. Hunt, 94 Mo. 480; Golden v. Henson, 100 Mo.App. 20.
Prince, Harris & Beery for respondent.
(1) Where the wrongful act of a defendant has involved the plaintiff in litigation with others, or placed him in such relation with others as to make it necessary to incur expense to protect his interest, such costs and expense should be treated as the legal consequence of the original wrongful act. Meyer v. Adler, 188 Mo.App. 607; First Natl. Bank v. Williams, 63 P. 745; Johnson v. Meyers, 34 Mo. 255; Regier v. Accident Co., 202 Mo.App. 184; Osborne v. Ehrhardt, 15 P. 590; Rectenbaugh v. Porthuron Co., 118 N.W. 697; Loan & Sav. Assn. v. Pickrell, 56 S.W. 500; Town of Duxbury v. Rd. Co., 26 Vt. 751. (2) Where a wrong has been committed which has involved the plaintiff in litigation with others, the plaintiff has a right to, in good faith, make the best compromise he can, and is not bound to submit to an adverse judgment. Regier v. Accident Co., 212 Mo.App. 184. (3) A petition which sets out specifically the acts of the defendant which constitutes a fraud and followed by another averment to the effect that a gross fraud was thereby worked upon the plaintiff, to his damage, sufficiently alleges that plaintiff had reliance and was deceived. Morrell v. Franklin, 233 S.W. 224. (4) Fraud or bad faith can rarely be proved by direct evidence. Therefore, where fraudulent intent was the gist of the inquiry, evidence should be allowed to take a wide range, in order that other transactions of the party accused not only contemporaneous with the transaction in controversy, but previous and subsequent to it, which have a material tendency to explain the motives with which it may have been effected. Manheimer v. Harrington, 20 Mo.App. 297; Massey v. Young, 73 Mo. 260, 273; Sawyer v. Walker, 204 Mo. 103; Jones v. Ins. Co., 184 Mo.App. 402. (5) Where a party offers an instruction which contains a vice, and it is refused, he may not complain that another instruction containing a similar vice was given. Harding v. Mo. Pac. Ry. Co., 248 Mo. 333. (6) Where a document is admissible for some purpose, it becomes incumbent upon the party against whom it is introduced to object to such portions thereof as are deemed incompetent or irrelevant and to request an instruction, asking the jury to disregard such incompetent or irrelevant portions. Unless this is done, all objections are waived. An objection to the whole document certainly should be overruled. Wilkins v. Railway, 101 Mo. 93. (7) Where violation of a legal right is shown, the novelty of the proceeding will not of itself operate as a bar to redress. It is an ancient maximum that where there is a right, there is a remedy. 38 Cyc. 423; Jukek v. Goldman, 150 N.Y. 176. (8) It is not necessary to show the reasonableness of items of expense such as traveling expenses, hotel bills, etc. They being ordinary charges which the general public would be required to pay for such service. Such items in the case at bar total about $ 30. Chaperon v. Electric Co., 67 P. 928.
DAVIS, C. Railey and Higbee, CC., concur. David E. Blair, P. J., concurs in the result.
This is an action in damages for fraud, brought in the Circuit Court of Jackson County to the June term, 1920, wherein plaintiff recovered judgment against defendant for $ 4,976.25 compensatory and $ 5,000 punitive damages. The motions for a new trial and in arrest of judgment being overruled, defendant appeals.
The petition alleges in substance: That on or about February 7, 1916, plaintiff purchased a certain farm in Andrew County. That on November 10, 1917, Bertina H. Boyles filed suit against plaintiff praying that he be divested of an undivided one-fourth interest in said land, and offered strong evidence of her legal demand. That Bertina Boyles offered incontestible proof that a purported deed of October 18, 1915, from James A. Harlin, to certain named heirs of Martin D. Boyles, deceased, in plaintiff's claim of title, was a forgery. That defendant procured the execution of and caused the forged deed to be recorded, while suppressing a valid unrecorded deed from Harlin to Bertina H. Boyles, coming to defendant's possession while acting as administrator de son tort of Bertina's husband's estate, and as a direct result, plaintiff was, on January 16, 1919, compelled to compromise and settle with Bertina to stop costs and the loss of a one-fourth interest in said farm. That the itemized expenditures amounted to $ 2,976.75. That the procuring of said false and fraudulent deed by defendant was a wilful, intentional and malicious act and a gross fraud, and that as a direct result plaintiff employed lawyers and incurred costs, expending the above amount, and was further damaged in prosecuting the litigation, causing him worry, vexation and mental distress in sum of $ 2,000. Prayer for judgment for $ 4,976.75 and for $ 5,000 punitive damages.
Defendant filed a general demurrer, and on the court overruling it, filed and went to trial on a general denial.
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