Snyder v. Stemmons

• Decision Date: 10 November 1910
• Citation: 131 S.W. 724,151 Mo. App. 156
• Parties: SNYDER v. STEMMONS.
• Court: Missouri Court of Appeals

131 S.W. 724

151 Mo. App. 156

SNYDER v. STEMMONS.

Springfield Court of Appeals. Missouri.

November 10, 1910.

1. APPEAL AND ERROR (§ 1008)—FINDINGS— CONCLUSIVENESS.

The findings of fact of the court trying an action at law without a jury are as conclusive on appeal as is the verdict of a jury.

2. FRAUD (§ 13)—ELEMENTS—GUILTY KNOWLEDGE.

An action for fraud cannot be maintained, unless a guilty knowledge, actual or constructive, is established by showing either that the representation was false within the knowledge of the person making it, or that he made it as a positive assertion calculated to convey the impression that he has actual knowledge of its truth when he is conscious that he has no such knowledge, since fraud implies the doing of a wrong willfully, so that an innocent misrepresentation made through mistake without knowledge of its falsity and with no intention to deceive is not actionable fraud.

3. FRAUD (§ 13)—ELEMENTS—GUILTY KNOWLEDGE.

Where a vendor affirmed positive knowledge of his ownership of a lot he offered for sale, when he had no positive knowledge, and the purchaser relied on the assertion, the vendor was liable for fraud on the ground that he was conscious that he was ignorant concerning the subject-matter of which he spoke and falsely asserted that it was within his knowledge, but where the vendor's agent represented to a purchaser that the vendor was the owner of the lot in an addition to a city, and pointed out another lot as the property of the vendor, and the representation was made recklessly without any knowledge on the part of the vendor or his agent as to whether or not the lot so pointed out was in fact the lot owned by the vendor, there was no actionable fraud because the representation might have been based on a mistake, and to make the misrepresentation actionable fraud, it must appear that the vendor made the representation in positive terms and as of his own knowledge.

Appeal from Circuit Court, Jasper County; David E. Blair, Judge.

Action by W. W. Snyder against C. H. Stemmons. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

This was an action for fraud and deceit in which the plaintiff recovered. The petition charged that defendant, through his agent, pointed out to plaintiff a lot on Bales avenue, in Kansas City, Mo., and falsely and fraudulently represented to him that said lot belonged to the defendant; that, relying on said representations, plaintiff bought said lot, paying $787 therefor, agreeing to erect a home thereon to cost not less than $1,500; that on May 27, 1907, he received a deed to what he supposed was the lot shown him, and thereafter constructed on said lot a home of the value of $3,000; that the lot shown him, and the lot he intended to buy was in fact lot 52 in East Santa Fé, an addition to Kansas City, Mo.; that plaintiff was not aware of the false and fraudulent representations and the deceit practiced upon him by the defendant through his agent until November, 1908, when he was compelled to pay the real owner of lot 52 $1,000 to obtain title, incurring an attorney's fee of $100 in defending his supposed title; that the value of lot 52 is $1,000, and the value of lot 55 is $400, and that plaintiff has been damaged in the sum of $700, praying judgment for that amount. The answer was a general denial. Upon trial before the court without a jury, plaintiff recovered a judgment for $475, whereupon defendant perfected an appeal to this court. No declarations of law were asked, but the court of its own accord made a finding of facts and gave a declaration of law. The following is the finding of facts as made by the court:

"The court finds that on or about and prior to May 1, 1907, the defendant was the own of lot 55 in Santa Fé Place, Kansas City, Mo., and that he acquired the title to said property without having seen same or having same pointed out to him; that, being desirous of selling said lot, he took one Cobb, a real estate agent of Kansas City, and went with him to said Santa Fé Place and showed him a lot which defendant then and there told said Cobb was the lot 55 which he owned, and that said agent put up his `For Sale' sign thereon, and that defendant told said Cobb that the lot pointed out was his for the purpose of advising said Cobb which lot was his, in order that said Cobb might make a sale of defendant's lot 55, and pointed out lot 52, which defendant did not own, as lot 55, and did so point out said lot in order that said Cobb might point out said lot to any purchaser said Cobb might procure, as the lot of defendant; that the defendant did not know that the lot pointed out, to wit, lot 52, was not lot 55, but that the defendant made the representation that said lot 52, so pointed out, was his, without any knowledge of whether in fact said lot was lot 55 or not, and so pointed it out to said Cobb recklessly and without any regard to any investigation on his part as to whether in fact he owned the lot so pointed out (lot 52) or not; that said Cobb thereby had full authority to bind defendant by pointing out said lot 52 as lot 55, and that the representations thereafter made by said Cobb to plaintiff that lot 52 pointed out by said Cobb to plaintiff as lot 55 as being owned by defendant were the representations of and binding upon the defendant.

"That thereafter said Cobb procured plaintiff as a purchaser and pointed out to plaintiff said lot 52 as lot 55, and told plaintiff that defendant was the owner thereof, and that plaintiff was ignorant of the fact that defendant did not own said lot 52, so pointed out to him as lot 55 by said Cobb, and believed said defendant was the owner of said lot so pointed out to him and that said lot was lot 55 and relied upon the statements so made by said Cobb and was deceived thereby and made no further investigation as to the true location of lot 55, and paid the sum of $787 and received a deed from defendant conveying to him said lot 55 believing the lot so pointed out to him (lot 52) was the property conveyed to him in said deed as lot 55, and erected a valuable dwelling house upon said lot 52, laboring under the impression that he had acquired the title thereto from defendant, whom he then and there believed to be the owner thereof; that defendant was not the owner of lot 52 so pointed out to plaintiff; that plaintiff did not discover that defendant was not the owner of the lot upon which he erected his dwelling house until long after said dwelling house had been completed by plaintiff; that after learning of the mistake, plaintiff was compelled to pay the sum of $1,000 for said lot 52 or remove his dwelling house from said lot; that the expense of so moving said house would have been several hundred dollars.

"The court further finds from the evidence that at the time the sale was made to plaintiff, lot 55 was of the reasonable market value of $525, and that lot 52 was of the reasonable market value of $875, and in arriving at these values the court has found that both of said lots had a width of 35 feet, and that lot 52 was worth $25 per front foot, and lot 55 was worth $15 per front foot, making a difference in value of $350.

"The court further finds that at the time of said sale plaintiff advised said agent Cobb that he intended to erect a dwelling house upon said lot 52, so pointed out to him as lot 55, and that it was within the contemplation and knowledge of the defendant that plaintiff intended to make expensive and permanent improvements upon said lot and that plaintiff was damaged in the further sum of $125 on that account.

"The court therefore finds that plaintiff has been damaged in the sum of $475 composed of two items, to wit, $350, difference in value of lot 55 and lot 52, and $125 on account of loss by reason of the improvements placed upon said lot 52 by plaintiff. Judgment is accordingly entered for plaintiff in the sum of $475. The other party defendant is the wife of the defendant C. H. Stemmons, and the action is dismissed as to her."

The court, of its own accord, gave the following declaration of law: "The court, upon its own motion, declares the law of this case to be that if the defendant's agent Cobb represented to plaintiff that defendant was the owner of lot 55 in Santa Fé Place, an addition to Kansas City, and pointed out lot 52 in said addition as lot 55 and represented to plaintiff that said lot 52 so pointed out was the property of defendant, and that said Cobb had authority to point out said lot 52 as the property of defendant, and that said representation was made by defendant through his agent recklessly and without any knowledge on the part of defendant or his said agent as to whether or not said lot 52 so pointed out by said agent was in fact lot 55, and was owned by defendant and that said representation was made for the purpose of inducing plaintiff to purchase said lot as the property of defendant, and that the plaintiff did not know that the lot pointed out to him was not lot 55 and not the property of defendant, and believed said lot so pointed out to him was lot 55 and the property of defendant and relied upon said representations, and that, under all the facts and circumstances in evidence, plaintiff had a right to rely upon such representations and to make no further investigation as to the true facts as to...