Stratton v. Dudding

• Decision Date: 29 April 1912
• Citation: 147 S.W. 516,164 Mo.App. 22
• Parties: BISHOP STRATTON, Appellant, v. M. A. DUDDING, Respondent
• Court: Kansas Court of Appeals

147 S.W. 516

164 Mo.App. 22

BISHOP STRATTON, Appellant, v. M. A. DUDDING, Respondent

Court of Appeals of Missouri, Kansas City

April 29, 1912

Appeal from Johnson Circuit Court.--Hon. A. A. Whitsett, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

James A. Kemper for appellant.

R. M Robertson and N. M. Bradley for respondent.

OPINION

JOHNSON, J.

This is an action for fraud and deceit commenced in a justice court by the filing of the following statement:

M A. Dudding to

Bishop Stratton, Dr.

To damages sustained from misrepresentation

as to value, age and condition of one cer-

tain milch cow, bought from the said M. A.

Dudding, on Feb. 8, 1910

$ 25.00.

A trial in the circuit court where the cause was taken by appeal resulted in a verdict and judgment for defendant and plaintiff appealed. Counsel for defendant attack the sufficiency of the statement to plead a cause of action and invoke the well-recognized rule that a mere charge of fraud in a petition without specification of the act or acts which constitute the alleged fraud amounts to nothing and cannot be accepted as the statement of a good cause of action. [Nagel v. Railway, 167 Mo. 89, 96, and cases cited.]

But that rule does not apply to justice courts where technical accuracy is not required and where a statement is deemed sufficient if it advises the defendant of the nature and amount of plaintiff's demand with sufficient definiteness to bar another action for the same cause. [Iba v. Railroad, 45 Mo. 469; Polhans v. Railway, 45 Mo.App. 153; Hall v. Railroad, 124 Mo.App. 661.] The statement before us is sufficient especially as to an attack made for the first time after verdict. The parties to the action are farmers and the subject of dispute is a milch cow plaintiff purchased for fifty dollars at an auction sale defendant had at his farm. In substance the evidence of plaintiff tends to show that defendant represented at the sale that the cow was seven or eight years old, was sound, and gave from two and one-half to three gallons of milk per day; that plaintiff believed these statements and relying on them bought the cow; that each of the statements was false and that their falsity could not be discovered by any reasonable inspection that plaintiff made or could have made at the time. It developed that the cow was eleven or twelve years old, had a permanently diseased bag and gave from one to one and a half gallons of milk per day, instead of the quantity represented by defendant, but these defects which the evidence of plaintiff depicts as latent were not discovered by him until after the sale. The evidence of defendant contradicts that of plaintiff on all essential points and tends to show that the defects of which plaintiff complains, if existent, were open to ordinary inspection and that full opportunity was given plaintiff and other bidders to examine the animals and bidders were invited by defendant to avail themselves of such opportunity.

The gist of the cause of action asserted by plaintiff is not a breach of warranty, express or implied, but the tort of false and fraudulent representations. An action of the latter character cannot be predicated of representations as to facts that fall within the scope of the operation of the rule of caveat emptor. That rule, the vigor of which remains unimpaired, demands of a buyer the exercise of reasonable care and prudence in his purchases. He must avail himself of an opportunity to examine the article offered for sale and make reasonable use of his skill and judgment to discover defects. As to defects that are open to such inspection he has no right to rely on the representations of the seller. As to those matters of which it fairly may be...