Stonemets v. Head

• Decision Date: 28 February 1913
• Citation: Stonemets v. Head, 248 Mo. 243, 154 S.W. 108 (Mo. 1913)
• Parties: GEORGE M. STONEMETS and MARGARET STONEMETS v. A. N. HEAD, Appellant
• Court: Missouri Supreme Court

154 S.W. 108

248 Mo. 243

GEORGE M. STONEMETS and MARGARET STONEMETS v. A. N. HEAD, Appellant

Supreme Court of Missouri, First Division

February 28, 1913

Appeal from Audrain Circuit Court. -- Hon. James D. Barnett, Judge.

Affirmed.

Fry & Rodgers for appellant.

(1) The petition does not state facts sufficient to constitute a cause of action. It pleads matters which are manifestly mere opinions and which a reasonably prudent person would not rely on. Smith v. Sims, 77 Mo. 274; Johns v Railroad, 79 Mo. 92; Redpath v. Lawrence, 42 Mo.App. 109; Reed v. Batt, 100 Mo. 66. The petition pleads a number of conclusions which must be disregarded in passing upon its sufficiency. "A demurrer admits only facts pertinently pleaded, it does not admit conclusions." Hand v. St. Louis, 158 Mo. 213; State v. Aloe. 152 Mo. 467. In paragraph five the petition pleads no facts, but mere conclusions. These are not sufficient to state or aid the statement of a cause of action. Seving v. Furniture Co., 150 Mo.App. 581. (2) This was an equity case. Much of the testimony was read from depositions. Under the pleadings and whole evidence the verdict should have been for the defendant, and it is for this court to review the evidence and render such judgment as the trial court should have rendered. Wilson v Jackson, 167 Mo. 135; Cornwall v. McFarlane, 150 Mo. 377; Anderson v. McPike, 86 Mo. 293; Nauman v. Oberle, 90 Mo. 666; Brown v. South Joplin, 194 Mo. 681; Harrison v. Walden, 89 Mo.App. 164; Wade v. Ringo, 122 Mo. 322; Davis v. Ins. Co., 81 Mo.App. 264; Dunn v. White, 63 Mo. 181; Lewis v. Land Co., 124 Mo. 686. (3) In no event and under no possible view of the testimony should there have been any relief granted to George M. Stonemets. See cases under point 2.

H. P Warden, F. R. Jesse, S.D. Stocks and Barclay, Fauntleroy, Cullen & Orthwein for respondents.

(1) After verdict, and especially in equity cases, the petition will be liberally construed in favor of the pleader. Wycoff v. Hotel Co., 146 Mo.App. 554; McIntyre v. Ins. Co., 142 Mo.App. 256. The petition is sufficient under all the authorities. Adams v. Barber, 157 Mo.App. 370; Nauman v. Oberle, 90 Mo. 666; Hoffman v. Gill, 102 Mo.App. 320; Carr v. Sanger, 122 N.Y.S. 593. (2) While the demurrer was filed in this case, it was not filed before the second day before the trial, and the court was warranted in overruling it, because it was not filed within a reasonable time in advance of the trial. (3) On an exchange of property one party may rely on the representations of the other as to the value of land remotely situated in another State, or where the party making the representation is possessed of special knowledge regarding the subject-matter of which he speaks. Crandall v. Parks, 93 P. 1018; Scott v. Burnight, 107 N.W. 422; Brownlee v. Hewitt, 1 Mo.App. 360; McBeth v. Craddock, 28 Mo.App. 380; Stones v. Richmond, 21 Mo.App. 17; Cahn v. Reid, 18 Mo.App. 115; Loaiza v. Court, 85 Cal. 11; Morgan v. Dinges, 23 Neb. 271; Miner v. Medbury, 6 Wis. 295; McKnight v. Thompson, 39 Neb. 752; Morders v. Kattleman, 142 Ill. 96. (4) If a vendor has superior knowledge of the property sold, and knowingly gives a false opinion in regard to a material fact with the intention of defrauding the purchaser, an action may be maintained against him for fraud. Collins v. Jackson, 54 Mich. 186; Stebbins v. Eddy, 4 Mason, 417; Thompson v. Ins. Co., 75 Me. 55; Gordon v. Butler, 105 U.S. 553; Pike v. Fay, 101 Mass. 134. (5) If the seller of land knowingly represents the property to be worth much more than it is, and also knows that the vendee knows nothing of the value, his representations of value are fraudulent. Cressler v. Rees, 27 Neb. 515; White v. Sutherland, 64 Ill. 181; Smith v. Countryman, 30 N.Y. 655; Wright v. Wright, 37 Mich. 55. (6) If a vendor combines with a third person so that they conspire to mislead the purchaser as to the value of the property sold, it will be such fraud as will render them liable to an action. Kenner v. Harding, 85 Ill. 264. (7) If the person making the representations believed or had good reason to believe that they were false, or if he assumed or intended to convey the impression that he had actual knowledge of their truth though conscious that he had no such knowledge, the scienter necessary to maintain an action for deceit founded on fraudulent representations is established. Dulaney v. Rogers, 64 Mo. 201; Caldwell v. Henry, 76 Mo. 254; Walsh v. Morse, 80 Mo. 568; Nauman v. Oberle, 90 Mo. 666; Bank v. Sells, 3 Mo.App. 85; Koontz v. Kaufman, 31 Mo.App. 397; Rowell v. Chase, 61 N.H. 135; Railroad v. Tyng, 62 N.Y. 563; Sharp v. New York, 40 Barb. 257; Meyer v. Amidon, 23 Hun, 553; Loper v. Robinson, 54 Tex. 511; Hamlin v. Abell, 120 Mo. 188; Bacon v. Frisbie, 15 Hun, 26; Jackson v. Collins, 39 Mich. 557.

OPINION

LAMM, J.

Plaintiffs, husband and wife, with a family of six children, resided on a farm of 120 acres in Fulton County, Illinois. Eighty acres of it belonged to Margaret and forty stood in the names of Margaret and George jointly as baron and femme. This little farm, with a modest outfit of farm implements, stock and household goods, was their all. In that regard Nathan's one ewe-lamb allegory is apposite. Their farm will be called the Illinois farm. They seem to belong to a class that should be well beloved (because, as a great soul once suggested, God had made so many of them), viz., straightforward, simpleminded, hard-working, trustful and confiding people, members of the church and alive to ethical work, including temperance. (The moral of which lies further on. Of which more presently, anent Head himself.) Their farm, improved and productive, was well worth $ 60 per acre cash. It was encumbered for $ 2800 and George got it into his head that a larger farm could be profitably worked while he had his large family in hand, thereby making hay while the sun shone. Old Polybius says, sourly, "Man is the most gullible of all animals." Be that so or not so, it seems these plaintiffs were little versed in the guileful ways of traders.

Thirty miles away in the same county, and a stranger to them, was a man who (on this record) seemingly lived by his wits, a trader and real estate agent named Head, who had got on in the world as such. Among others, he owned a farm of 236 acres in Audrain county, Missouri, subject to an encumberance of $ 4500, and twenty acres adjacent unencumbered. These two tracts will be called the Missouri farm for convenience. He had traded for all of this land, except the unencumbered twenty, some years before, was no stranger to it and knew it as a worn out, nonproductive farm (inclusive of the twenty) with a bad reputation, a "trading" property long in the hands of renters. There was evidence there was no other farm like it in the neighborhood. It stood alone in bad preeminence. Which fact we emblazon and embalm to the credit of Audrain county. He had tried to rid himself of it without success till he met up with plaintiffs. A while before his trade with them he had listed it in a land agency at $ 35 per acre, agreeing to pay a commission on that price. He had tried the unusual plan of trying to dispose of it at public auction by a covinous device, to-wit, the enticing and stimulating aid of by-bidders and puffers. At that auction at the county seat of Audrain county, Mexico, he screwed the price up (by by-bidding alone) to $ 35 an acre, but got no real bidder above that (or at that) and it was struck off to one of his by-bidders on his simulative bid and no deed was made. The entire Missouri farm was worth, say, $ 20, or at best $ 25 per acre in cash -- and we think Head knew that fact. In other words, barring the twenty-acre tract, which agreed in worth with the general run of the farm, it was encumbered for about its worth.

In January, 1908, Head traded his Missouri farm to plaintiffs for their Illinois farm, putting the title in plaintiffs jointly, each party to the trade assuming the other's original encumbrance. Plaintiffs, as said, put in their land at its true cash value, to-wit, $ 60 per acre (which Head knew) and Head put his in at the claimed (but simulated) value of $ 60 per acre (which Head knew they did not know) and took a note and deed of trust by way of boot for $ 6288, evidenced by a note due in seven years and secured on that part of the Missouri farm already under mortgage.

Shortly, plaintiffs broke up their home in Illinois, moved to Missouri and took possession of their new purchase. Shortly, Head sold the Illinois farm for $ 65 per acre.

(Note: There is some evidence from which it might be inferred that Head was fleeced when he traded for the Missouri farm several years before, but it is not contended by counsel that such fact, if fact it be, justified him in turning about and in turn fleecing plaintiffs. Such application of the doctrine of the Squib case whereby one passes a bad trade on to another, an innocent party, as the boy in the Squib case tossed on the burning squib [Scott, an infant, v. Shepherd, an infant, 2 Blackstone's Rep. 892] would be novel indeed. That A, bitten by B, may by that token in turn bite C, in a like way by the same device, is a doctrine unknown to this court.)

In the late summer of 1908, plaintiffs sued in equity to cancel said deed of trust and note and for damages. This on the theory that the trade was made on the strength of false representations by Head as inducements thereto and relied upon by them; that they had been the victims of an arrant swindle whereby they were tricked out of their farm and were entitled to relief in equity to that extent.

From a decree cancelling the note and deed of trust and awarding them $ 2400 in money damages, Head appeals, raising two general questions for...