Stacey v. Robinson

• Decision Date: 20 June 1914
• Docket Number: No. 13280.,13280.
• Citation: 184 Mo. App. 54,168 S.W. 261
• Parties: STACEY v. ROBINSON.
• Court: Missouri Court of Appeals

168 S.W. 261

184 Mo. A. 54

STACEY v. ROBINSON.

No. 13280.

St. Louis Court of Appeals. Missouri.

June 20, 1914.

Rehearing Denied July 2, 1914.

1. FRAUD (§ 9)—DECEPTION CONSTITUTING— FRAUDULENT REPRESENTATIONS—FALSITY AND KNOWLEDGE THEREOF.

Where there was no evidence that defendant had or claimed any knowledge concerning the title to land claimed to have been misrepresented, it was not a matter peculiarly within his knowledge, as to which he might be presumed to know the facts, and there was no evidence that he knew such representations were false, he could be held liable therefor only as for a positive representation made, as of his own knowledge, with a reckless disregard of its truth or falsity.

2. FRAUD (§ 11)—DECEPTION CONSTITUTING —FRAUDULENT REPRESENTATIONS—MATTERS OF FACT OR OPINION.

No recovery could be had for alleged false representations that another's title to land was good, where plaintiff admitted that defendant qualified his statement that it was good by saying that another would not have taken the trust deed otherwise, as it indicated that the representation was not based on knowledge, but was a mere opinion.

3. FRAUD (§ 34)—DECEPTION CONSTITUTING —INJURY FROM FRAUD.

No recovery could be had for alleged false representations as to the title to land upon which a trust deed and notes secured thereby were taken as security for a loan to the holder thereof, where it was not shown that either the borrower or the maker of the notes was insolvent, and no effort had been made to collect from them; the plaintiff merely testifying that he did not think he could make the debt out of the borrower, while the maker of the notes testified without contradiction that he was good for the amount thereof and regarded them as valid obligations.

4. FRAUD (§ 25)—DECEPTION CONSTITUTING —INJURY FROM FRAUD.

Fraud must be accompanied with damage to be actionable.

5. FRAUD (§ 50)—ACTIONS—BURDEN OF PROOF.

The burden was upon the plaintiff to prove that he suffered actual damage from the alleged false representations of the defendant.

Appeal from Circuit Court, Stoddard County; W. S. C. Walker, Judge.

Action by H. M. Stacey against Louis Robinson. Judgment for plaintiff, and defendant appeals. Reversed.

Mozley & Woody and J. W. Farris, all of Bloomfield, and Orchard & Cunningham, of Eminence, for appellant. H. S. Green and Wammack & Welborn, all of Bloomfield, for respondent.

ALLEN, J.

This is an action to recover for alleged false and fraudulent representations made to plaintiff by the defendant. Plaintiff recovered, and the defendant prosecutes the appeal.

The petition alleges that in 1905 plaintiff loaned one R. L. Smith the sum of $600, to bear interest at the rate of 8 per cent. per annum; that such loan was made through the defendant, Robinson, as Smith's agent; that at the time thereof defendant represented to plaintiff that Smith was the owner of two certain notes for the sum of $500 each, executed by one Pickard, and secured by a deed of trust upon certain real estate in Butler county, Mo., and that defendant knew that Pickard's title to said real estate was good; that defendant offered to give plaintiff his duebill for the amount of said loan, provided plaintiff would redeliver such duebill to him when he had procured and delivered to plaintiff the said notes of Pickard, indorsed by Smith, together with the deed of trust securing the same. And it is alleged that plaintiff paid said sum of $600 to defendant, receiving the latter's duebill therefor, and that thereafter defendant delivered to plaintiff the notes and deed of trust above mentioned, whereupon plaintiff surrendered to defendant the latter's duebill. And it is alleged that said representations of defendant as to Pickard's title to the land were false in that Pickard had no title thereto whereby said deed of trust proved to be worthless, and it is averred that defendant knew that said representations were false and that defendant "had no reason to believe that said Pickard had any title to said real estate"; that such representations were made by defendant "for the purpose and with the intent of inducing plaintiff to loan said Smith said sum of $600 on said notes and deed of trust"; and that plaintiff made such loan "on the faith and in the belief" that the representations of defendant were true, and in ignorance of their falsity. And it is averred that both Pickard and Smith are insolvent.

The answer was a general denial, coupled with further averments which need not be noticed.

At the time of the transaction here in question, plaintiff resided in Stoddard county a few miles from Bloomfield; and the defendant lived some five miles from Asherville, in said county, at which place Smith was conducting a store. Plaintiff's testimony is to the effect that, while at defendant's home in August, 1905, defendant told him that "Bob Smith" wanted to borrow some money from him. Plaintiff testified that he told defendant that he could let "Bob" have the money, if the latter would make him "safe" therefor, and that defendant told him that Smith had a mortgage of $1,000; that defendant said that Smith had the notes of one Pickard, aggregating $1,000, secured by a deed of trust upon certain land, and that he (defendant) knew that the title to the land was good, and "said that he knew Bob would not have taken it unless it was good." Plaintiff testified that he asked defendant if Pickard had an abstract of the title to the land, and that defendant told him that he was not certain as to this, but thought Pickard had. Plaintiff further testified that a few days later he had a second conversation with defendant, on the river bank near the latter's house, having brought the money to make the loan. It appears that the notes executed by Pickard and secured by the deed of trust, and which Smith held, were either in St. Louis or Cape Girardeau, and that it would take some days to procure them. Plaintiff testified that the defendant suggested that the money be placed in his hands until the notes and deed of trust were procured, saying that Smith "was as tricky as hell"; that defendant said that he would "stand good" for the money, and that he would get the notes and deed of trust and bring the same to plaintiff; that plaintiff assented thereto, provided defendant would give him his duebill for the money in the meantime, which was done; and that some eight or ten days thereafter defendant came to plaintiff's house with the notes and deed of trust, and delivered the same to plaintiff and took up his duebill.

Defendant's testimony is to the effect that Smith had for some time been endeavoring to get plaintiff to lend him this money; and that at the time of the first conversation with plaintiff relative to the loan, plaintiff asked defendant what he thought about Smith, and that defendant said that "Bob was a merchant selling goods up there, and that he was a pretty tough customer." And defendant testified that, at the time of his next meeting with plaintiff, the latter delivered the money to him, taking therefor, not defendant's duebill, but some written agreement which Smith had prepared and signed, and which plaintiff was to retain until the notes and deed of trust were procured and delivered to him; that the understanding was that he (defendant) was merely to hold the money, as an accommodation to both parties, until the security was obtained; and that this he did, retaining the money himself until the notes and deed of trust were given to him by Smith, whereupon he delivered the latter to the plaintiff and paid the money to Smith.

Smith did not testify in the case. Pickard, the maker of the two notes secured by the deed of trust in question, testified on behalf of defendant. He stated that he had executed the notes and deed of trust in question, believing that he had a good and perfect title to the land described in the deed of trust; that plaintiff had a conversation with him before making the loan, and asked him if the title to the land was good; and that he told plaintiff that he "believed the title was good." Pickard further testified that he was worth the...