Stones v. Richmond

• Citation: 21 Mo.App. 17
• Parties: HANNAH STONES ET AL., Defendants in Error, v. DAVID RICHMOND, Plaintiff in Error.
• Decision Date: 15 February 1886
• Court: Court of Appeals of Kansas

21 Mo.App. 17

HANNAH STONES ET AL., Defendants in Error, v. DAVID RICHMOND, Plaintiff in Error.

Court of Appeals of Missouri, Kansas City.

February 15, 1886

APPEAL from Jackson Circuit Court, HON. TURNER A. GILL, Judge.

Affirmed.

Statement of case by the court.

Plaintiffs are husband and wife. Defendant was the owner of a grocery store in Kansas City, Mo., which he traded to plaintiff Hannah, for her house and lot in said city. The husband acted as agent for the wife in the negotiations for the trade, and assisted in running the store after the trade. The evidence was undisputed that plaintiff had no experience as a grocer. The evidence tended to show that defendant represented to plaintiff that he had taken an invoice of the stock of groceries since the negotiations were begun and found as the result of that invoice that he had in stock eight hundred dollars' worth of goods at wholesale prices, and that the fixtures were worth one hundred and fifty dollars, and that if these representations were not true, he had five thousand dollars' worth of property to make them good. That plaintiff relied upon these representations as being true and in consequence thereof made the trade. The evidence tended further to show that defendant, in connection with his statement that he had just taken an invoice, himself suggested to plaintiff to take one for her own satisfaction. The evidence further tended to show that defendant's representations were false and fraudulent and made for the purpose of deceiving plaintiff. On the other hand the evidence on defendant's part tended to show he made no false representation and did not deceive nor attempt to deceive plaintiffs.

Plaintiffs obtained judgment in the court below and defendant appeals.

C. W FREEMAN, for plaintiff in error.

I. If the vendor, by words or acts, deceives the purchaser as to the quality or value of the goods sold, yet the purchaser cannot maintain an action of deceit, if the goods were open to his observation, and he could by the use of ordinary diligence and prudence ascertain their quality--unless he protect himself by a warranty--(caveat emptor ). Brown v. Leach, 107 Mass. 364; Benjamin on Sales (3 Am. Ed.) 411, and note m; Manning v. Albee, 11 Allen (Mass.) 522.

II. Mere statements as to value of property are not to be relied on by purchaser. Brown v. Castles, 11 Cush. (Mass.) 356; Stephens v. Orman, 10 Florida 9; Dickinson v. Lee, 106 Mass. 557; Hess v. Young, 39 Ind 379; Mooney v. Miller, 102 Mass. 220; Bigelow on Frauds, 66, and cases cited.

III. The fourth instruction, as to ratification or estoppel should have been given by the court. There was evidence to sustain it. Benjamin on Sales, sect. 453. And the instructions given by plaintiff were erroneous.

IV. The verdict was the result of ignorance or prejudice. It cannot be reconciled with the facts proven. There is nothing to support the charges of fraud, and much testimony to show that the representations were substantially true.

KARNES & ESS and LIPSCOMB & RUST, for defendants in error.

I. This court will not disturb the finding of the jury on the facts, if no error was committed in giving or refusing instructions. The instructions given in the case were proper.

II. The parties did not stand upon an equal footing. Defendant was familiar with the business, and plaintiff was not, and plead reliance on what he said as to amount and quality of goods, and said that he had recently taken an inventory of them. Though a party may inspect, if induced by vendor not to make a close inspection, the vendor will be liable on account of his misrepresentations. Bigelow on Fraud, sects. 67, 68 and 69.

III. The fourth instruction was properly refused. Plaintiff had the right to keep the goods after finding they were not as represented, and sue defendant on his fraudulent representations. There was no evidence of her intention to waive her right to sue. She had a reasonable time within which to sue, and did not have to give defendant any notice. Benj. on Sales (4 Am. Ed.) sect. 1356. A waiver will not be presumed when the facts are equally consistent with another theory. The one relying on the waiver has the affirmative, and the presumption is against the waiver. Ibid.

ELLISON J.

Ordinarily a representation as to value, though false, will not be considered fraudulent if the parties are upon equal footing but merely an expression...