State ex rel. Hoyt v. Shain, 34135.

• Decision Date: 23 April 1936
• Docket Number: No. 34135.,34135.
• Citation: 93 S.W.2d 992
• Parties: STATE OF MISSOURI at the relation of L.T. HOYT, Relator, v. HOPKINS B. SHAIN, FRANCIS H. TRIMBLE and EWING C. BLAND, as Judges of the Kansas City Court of Appeals.
• Court: Missouri Supreme Court

93 S.W.2d 992

STATE OF MISSOURI at the relation of L.T. HOYT, Relator, v. HOPKINS B. SHAIN, FRANCIS H. TRIMBLE and EWING C. BLAND, as Judges of the Kansas City Court of Appeals.

No. 34135.

Supreme Court of Missouri.

Division Two, April 23, 1936.

Certiorari.

THAT PORTION OF THE OPINION OF THE COURT OF APPEALS RULING PLAINTIFF'S CAUSE OF ACTION AND THE RECORD MADE PURSUANT THERETO IS QUASHED.

Ira B. McLaughlin and Paul R. Byrum for relator.

(1) The writ of certiorari having issued herein, this court will consider all conflicts between the rulings of the Court of Appeals and the rulings of this court in controlling decisions, which appear in the within opinion to be considered and this irrespective of whether or not the same are suggested by relator. State ex rel. Ins. Co. v. Allen, 313 Mo. 384, 282 S.W. 52; State ex rel. Gordon v. Trimble, 318 Mo. 341, 300 S.W. 478. (2) Such conflicts may arise (1) by a ruling of respondents which is in conflict with a general principle of law announced in a controlling decision of this court, or (2) by the application by respondents to the facts here found of conclusions of law contrary to the conclusions of law applied by this court in controlling decisions under like, analogous or similar facts. State ex rel. Kroger Co. v. Haid, 323 Mo. 9, 18 S.W. (2d) 480; State ex rel. B.D.I. Assn. v. Bland, 316 Mo. 559, 291 S.W. 501; State ex rel. Weddle v. Trimble, 331 Mo. 1, 52 S.W. (2d) 868. (3) Where the opinion in question of the Court of Appeals, by reference incorporates instruments contained in its record such instruments so referred to are before this court for consideration on questions of alleged conflict. State ex rel. Vulgamott v. Trimble, 300 Mo. 92, 253 S.W. 1016. (4) Where the opinion in question of the Court of Appeals undertakes to state the facts themselves, as distinguished from its conclusions of what the facts in evidence tend to prove, the presumption prevails that the facts so stated are all the facts of record on the question at issue. State ex rel. Ward v. Trimble, 327 Mo. 773, 39 S.W. (2d) 374. (5) Where, as here, there is no consideration for an alleged contract of assumption; where, as here defendant's signature to such alleged contract was affixed thereto long after the same was a completed contract between the original parties, such execution thereof by defendant without a new consideration moving to him, created a nudum pactum, which is nonactionable and unenforceable. Williams v. Williams, 67 Mo. 665; Pfeiffer v. Kingsland, 25 Mo. 66; McMahon v. Geiger, 73 Mo. 148; Allen West Comm. Co. v. Richter, 286 Mo. 691, 228 S.W. 827; McFarland v. Heim, 127 Mo. 327, 29 S.W. 1030; Butcher v. Rogers, 60 Mo. 139; Valle v. Clemens, 18 Mo. 486; McFarland v. Melson, 323 Mo. 977, 20 S.W. (2d) 67; Carter v. Burns, 332 Mo. 1128, 61 S.W. (2d) 933; Frase v. Lee, 152 Mo. App. 562, 134 S.W. 10; Lingenfelder v. Wainwright Brewery Co., 103 Mo. 578, 15 S.W. 844; Edgell v. Tucker, 40 Mo. 523. (6) Under the evidence, defendant made a submissible case on the question of whether or not plaintiff was a party to the alleged fraud. (a) Fraud may be established by circumstantial evidence; usually the ultimate fact of its existence is a question for the jury. In a law case, courts are only justified in ruling as a matter of law, that fraud is not established, where the circumstances in evidence and all inferences arising therefrom are such that no reasonable mind would be satisfied of the existence of fraud. Howard v. Zweigart, 197 S.W. 50; Parish v. Casner, 282 S.W. 409; Farmers' Bank v. Handly, 9 S.W. (2d) 891. (7) The doctrine of caveat emptor is not applicable to the facts in the instant case so as to authorize a directed verdict for plaintiff herein. Judd v. Walker, 114 Mo. App. 128, 89 S.W. 558, 215 Mo. 312, 114 S.W. 979; Vodicka v. Sette, 223 S.W. 582; Laird v. Keithley, 201 S.W. 1138; Parish v. Casner, supra.

John N. Davis, Nelson H. Davis and Davis & Davis for respondent.

The counterclaim pleaded was one to rescind a real estate exchange contract, on the ground of fraud and deceit. It pleaded an action in equity. It was error to treat it as an action at law, and submit to the jury the question of unliquidated damages. Ryan v. Miller, 236 Mo. 508; Johnson v. Bray, 31 S.W. (2d) 1002; Brown v. So. Joplin Lead & Zinc Min. Co., 231 Mo. 175; State ex rel. Carey v. Trimble, 43 S.W. (2d) 1053; 13 C.J. 611. Plaintiff's action herein was at law. The amended counterclaim filed was an equitable defense in the nature of rescission of a contract. It was contrary to law to submit the counterclaim, when it was not a question of law. Jones v. Moore, 42 Mo. 419; Schneider v. Kirkpatrick, 72 Mo. App. 105; Crowe, Admr., v. Peters, 63 Mo. 435. The contract complained of in the amended counterclaim was a contract with Roy O. Allen, but not with plaintiff. Roy O. Allen was not a party to this suit. It was improper to consider the counterclaim of rescission in this suit, under the statute. Sec. 777, R.S. 1929; Finney v. Raudabaugh, 182 Mo. App. 251; Crane v. Murray, 106 Mo. App. 702; State ex rel. v. Fidelity & Guaranty Co., 135 Mo. App. 165. The amended counterclaim's allegation against plaintiff corporation was that it conspired with Roy O. Allen and C.J. Thomas to bring about the contract between defendant and Allen. There was no competent evidence against plaintiff of conspiracy with anyone that would warrant the trial court submitting the counterclaim to the jury. Ross v. Mineral Land Co., 162 Mo. 331; Wolfersberger v. Miller, 327 Mo. 1165; Hutchinson v. Safety Gate Co., 247 Mo. 111; Jones v. Nichols, 280 Mo. 664; Brueckle v. Pechan, 21 S.W. (2d) 907; Bank v. Hutton, 224 Mo. 72; Abbott v. Miller, 41 S.W. (2d) 901; Harleson v. Tyler, 281 Mo. 399. The instructions for a directed verdict on the amended counterclaim should have been given, for the additional reason of the positive evidence against fraud and conspiracy in the depositions of E.W. Reid, Roy O. Allen and C.J. Thomas. Defendant made them his witnesses. This evidence offered showed conclusively that plaintiff was acting in good faith, through its president, E.W. Reid. There was nothing in this testimony read to the jury that would warrant the offering of the question of conspiracy or fraud on the counterclaim to the jury. Defendant, having offered this evidence, will be bound by it. The evidence having been received, it must be given full faith and credit. On the points here considered this evidence was not denied. There was nothing to submit to the jury on the question of fraud or conspiracy. Rodan v. St. Louis Transit Co., 207 Mo. 408; Brosius v. Lead & Zinc Co., 149 Mo. App. 186; Frank v. Free, 190 Mo. App. 81; Schroer v. Brooks, 204 Mo. App. 585; Smith v. Met. St. Ry. Co., 201 S.W. 569; Bennett v. Standard Acc. Ins. Co., 264 S.W. 30; Manchester Bank v. Harrington, 199 S.W. 248; Claflin Co. v. Dodson, 111 Mo. 201. The counterclaim alleges that by reason of the conspiracy to defraud defendant, he was induced to make a property trade for plantation property, with Roy O. Allen. Under the evidence in the case, the rule of caveat emptor would apply, to deprive defendant from claiming damages on the contract to exchange property. The record discloses that he made close examination of the plantation for the greater part of a day. The matters complained of as soil and timber were open to observation. The contract he was taking over showed on its face that the United States Government had perpetual spillway rights on the plantation whenever there was high water. Judd v. Walker, 215 Mo. 326; Dunn v. White, 63 Mo. 186; Kirby v. Balke, 306 Mo. 119; McCaw v. O'Malley, 249 S.W. 45.

BOHLING, C.

Certiorari to test the correctness of the ruling, under our latest controlling decisions, of the Kansas City Court of Appeals in a cause styled The Lampton Realty Co. v. Hoyt (Mo. App.), 80 S.W. (2d) 249, holding, briefly stated, the assignee of a contract for the purchase of real estate from the vendee-assignor personally liable to the vendor for certain monetary obligations imposed by said contract upon said original vendee as evidenced by the provisions of said contract and also, in part, by the negotiable note, given under said contract, of said vendee; and the correctness of the ruling of said court on a counterclaim interposed by said assignee asking damages on account of alleged fraudulent misrepresentations made in connection with the assignment of said contract to said assignee.

[1] Upon certiorari proceedings to one of the Courts of Appeals, State ex rel. English v. Trimble (en banc), 320 Mo. 1113, 1118, 9 S.W. (2d) 624, 626(2), rules: "The majority opinions of this court, where this question has been considered, have uniformly and repeatedly held that `for the facts of the case we should go to the opinion' of the Court of Appeals. [Citing cases.] The only enlargement, if such it be, of our source of information above noted as to the facts in the case that has been recognized by a controlling opinion of this court is our ruling that recourse be had to any pleading, instruction or other written document referred to in the opinion and made the subject-matter of a ruling therein, and this on the theory that such reference makes the written document just as much a part of the opinion as if fully set forth therein. [Citing cases.]" [See, also, State ex rel. v. Ellison, 281 Mo. 667, 674, 220 S.W. 498, 500(1); State ex rel. v. Trimble, 300 Mo. 92, 101(2), 253 S.W. 1014, 1016(2); State ex rel. v. Shain, 334 Mo. 617, 66 S.W. (2d) 826, 827(1).] In State ex rel. Ward v. Trimble, 327 Mo. 773, 778, 39 S.W. (2d) 373, 374(7, 8) we said: "We are bound by the Court of Appeals' conclusion as to what the facts are, but we are not bound by the result it reaches byapplying the law to the facts, if that result conflicts with controlling decisions of this court."

We set forth only such facts as we deem essential to a determination of this proceeding. [See 80...