Steele v. Brazier

• Decision Date: 06 December 1909
• Citation: 123 S.W. 477
• Parties: STEELE v. BRAZIER.
• Court: Missouri Court of Appeals

123 S.W. 477

STEELE v. BRAZIER.

Springfield Court of Appeals. Missouri.

December 6, 1909.

1. VENDOR AND PURCHASER (§ 334) — RIGHT OF ACTION — MONEY OBTAINED BY FALSE REPRESENTATIONS.

Where defendant induced plaintiff to pay for certain land contracts by false and fraudulent representations as to the value and location of the land, etc., made in order to defraud plaintiff, plaintiff could recover, as for money had and received, the money paid defendant under the contracts.

2. ATTACHMENT (§ 32) — GROUNDS — "DEBT" FRAUDULENTLY CONTRACTED.

An attachment could not be sued out under Rev. St. 1899, § 366, subd. 14 (Ann. St. 1906, p. 475), authorizing an attachment where the debt sued for was fraudulently contracted by the debtor, in aid of an action for money had and received by defendant under land contracts which plaintiff was induced to make by defendant's false and fraudulent representations as to the value and location of the land; there being no "debt" within the meaning of the statute.

3. ASSIGNMENTS (§ 23) — RIGHTS ASSIGNABLE — ACTIONS ARISING OUT OF CONTRACT.

A cause of action for money had and received under land contracts, executed because of the vendor's fraudulent representations as to the value of the land, etc., was assignable under Rev. St. 1899, § 540 (Ann. St. 1906, p. 575), requiring every action to be prosecuted in the name of the real party in interest, but providing that this section shall not authorize the assignment of a thing in action not arising out of the contract; the section making assignable everything in action arising out of contract.

4. PLEADING (§ 248) — NEW CAUSE OF ACTION.

While the statute permits amendments to pleadings so as to cure all formal and many substantial defects, a different cause of action cannot be substituted by amendment, and if the same evidence will support both the original and amended pleading, and the same measure of damages apply to each, the amendment does not substitute a new cause of action.

5. PLEADING (§ 248) — AMENDMENT — DEPARTURE.

In determining whether the second amended petition constituted a departure from the original petition, it must be compared with that petition, though the first amended petition was also a departure, and was not objected to on that account.

6. PLEADING (§ 248) — AMENDMENT — DEPARTURE.

The original petition alleged that defendant, with intent to defraud plaintiff, falsely and fraudulently represented that he owned valuable lands in certain counties with large improvements as stated, in reliance on which plaintiff paid defendant certain sums for land contracts; whereas, defendant did not own any lands in those counties, and the representations were false, etc. The second amended petition alleged that defendant was doing business under a certain name, and for a certain sum paid by plaintiff executed and delivered to him two land certificates entitling the holder to certain land, a copy of which was set out, together with allegations of misrepresentation inducing plaintiff to accept the certificates. Held, that the amendment was not a departure from the original petition, merely making it more definite and certain.

7. PLEADING (§ 248) — DEPARTURE — ADDITIONAL CAUSES OF ACTION.

Plaintiff may, by amendment to the petition, set up additional causes of action which could be united in the same petition under Rev. St. 1899, § 593 (Ann. St. 1906, p. 619), if they are separately stated and consistent with each other, without constituting a departure.

8. ASSIGNMENTS (§ 80) — RIGHTS PASSING — RIGHT OF ACTION.

An assignment of a land contract for a deed to land did not pass the assignor's right of action against the vendor for money had and received under the contract, on the ground that it was made because of false representations as to the value of the land.

Appeal from Circuit Court, Webster County; Argus Cox, Judge.

Action by W. H. Steele against W. H. Brazier. From a judgment for plaintiff sustaining an attachment in aid of the action and on the merits, defendant appeals. Reversed and remanded for new trial.

This suit was commenced in the circuit court of Howell county by filing a petition and an affidavit for attachment on the 30th day of November, 1907, a copy of which affidavit for attachment is as follows (caption omitted): "This affiant, Guy C. Barr, being first duly sworn, on his oath states: That he is attorney, and authorized by the plaintiff in the above-entitled cause to make this affidavit for an attachment therein. That said plaintiff, W. H. Steele, has a just demand against the defendant herein. That the amount which this affiant believes he ought to recover, after allowing all just credits and set-offs, is $1,040, and that this affiant has good reasons to believe and does believe: That the defendant conceals himself so that the ordinary process of law cannot be served upon him. That the defendant has absconded and absented himself from his usual place of abode in the state of Missouri, so that the ordinary process of law cannot be served upon him. That the defendant is about to remove his property and effects out of the state of Missouri, with the intent to change his domicile. That the defendant has fraudulently conveyed and assigned his property and effects so as to hinder and delay his creditors. That the defendant has fraudulently concealed, removed, and disposed of his property and effects so as to hinder and delay his creditors. That the defendant is about fraudulently to convey and assign his property and effects so as to hinder and delay his creditors. That the defendant is about fraudulently to conceal, remove, and dispose of his property and effects so as to hinder and delay his creditors. That the debt herein sued for was fraudulently contracted on the part of the debtor, ____, the defendant herein."

Afterward, on the 23d day of March, 1908, the defendant filed a counter affidavit in the nature of a plea in abatement denying the grounds for attachment alleged in said affidavit, which is in words and figures as follows (caption omitted): "Now comes the defendant, W. H. Brazier, and says that the plaintiff ought not to have and maintain the proceedings in attachment in this cause against him because the defendant says that the grounds for attachment are untrue, as follows: It is not true, as alleged in the affidavit upon which attachment was issued that the defendant conceals himself so that the ordinary process of law cannot be served upon him. It is not true `that the defendant has absconded and absented himself from his usual place of abode in the state of Missouri, so that the ordinary process of law cannot be served upon him.' It is not true `that the defendant is about to remove his property and effects out of the state of Missouri with the intent to defraud, hinder, and delay his creditors.' It is not true `that the defendant has fraudulently concealed, removed, or disposed of his property and effects so as to hinder and delay his creditors.' It is not true `that the defendant is about fraudulently to convey and assign his property and effects so as to hinder and delay his creditors.' It is not true `that the defendant is about fraudulently to conceal, remove, or dispose of his property and effects so as to hinder and delay his creditors.' It is not true `that the damages for which this action is brought are for injuries arising from the commission of a felony by the defendant herein.' It is not true `that the debt herein sued for was fraudulently contracted on the part of the debtor, the defendant herein.' Wherefore the defendant asks that the attachment abate and be dissolved at the cost of the plaintiff and bondsmen."

On the 10th day of August, 1908, in the Howell county circuit court, the plaintiff asked and obtained leave to file an amended petition, which was filed on said date. Plaintiff stated for his cause of action in this first amended petition: That the defendant, with the intent to cheat and defraud the plaintiff and other parties therein mentioned, fraudulently represented: That he was the owner in fee of 10,000 acres of valuable land in the counties of Howell, Ozark, and Douglas; that several hundred acres of the land was well improved with valuable residences and barns; that there were many valuable springs and wells on the land; and that these representations were made as a part of a scheme to cheat and defraud the plaintiff and the other parties mentioned. That, in order to carry out the said scheme, the defendant had literature circulated containing representations of the existence of valuable farms on this tract of land, and stating that each and every shareholder purchasing of him under said scheme would have conveyed to him in fee simple a portion of the said lands, being not less than 2 town lots and not more than 160 acres. That plaintiff and others believed the said representations, were deceived thereby, and were induced to purchase 29 shares at $40 each. That the other parties purchasing assigned their shareholders' contracts to this plaintiff. That the defendant did not have the lands such as he represented. That his representations as to such lands were false and fraudulent and misled the plaintiff and the other parties. That by reason of such fraudulent representations he was damaged in the sum of $1,160, for which he asked judgment.

On the 17th day of August, 1908, in the circuit court of Howell county, the plea in abatement coming on for trial, the plaintiff offered evidence tending to sustain the allegations of his petition, and the testimony of the plaintiff, W. H. Steele, was heard. At the conclusion of the evidence offered by the plaintiff to sustain the attachment, the defendant offered no evidence, but filed a demurrer to the evidence and assigned the following grounds: "First. That there is no substantial evidence to support the grounds alleged for the attachment; nor any one of such grounds. Second. There is no substantial evidence that...