Stufflebean v. Peaveler

• Decision Date: 29 June 1925
• Docket Number: No. 15331.,15331.
• Citation: 274 S.W. 926
• Parties: STUFFLEBEAN v. PEAVELER.
• Court: Missouri Court of Appeals

274 S.W. 926

STUFFLEBEAN v. PEAVELER.

No. 15331.

Kansas City Court of Appeals. Missouri.

June 29, 1925.

Appeal from Circuit Court, Linn County; J. E. Montgomery, Judge.

"Not to be officially published."

Action by H. M. Stufflebean against G. F. Peaveler. Judgment for plaintiff, a new trial was denied, and defendant appeals. Reversed and remanded.

H. J. West, of Brookfield, for appellant.

Bresnehen & Burns, of Brookfield, for respondent.

ARNOLD, J.

This is an action for damages alleged to have been sustained by plaintiff in a transaction with defendant whereby plaintiff traded a house and lot and a half interest in a pool hall, both in Brookfield, Mo., and $1,000 in cash, for a $6,000 note secured by a deed of trust on 80 acres of land in Howard county, Mo.

The petition alleges that defendant falsely and fraudulently represented to plaintiff that the Howard county land was gently rolling and in a high state of cultivation; that it had recently been purchased for $10,000 by one Eudoris R. Brown, the maker of the $6,000 note and the deed of trust securing same; that the said Eudoris R. Brown was represented to be a farmer residing in Howard' county and owning other lands adjoining the 80 acres in question. It is alleged that both plaintiff and defendant resided at Brookfield, Mo., more than 100 miles from the land in question; that personal inspection of the land by plaintiff was impractical; that plaintiff relied upon the statements and representations of defendant as to the character and value of the land and believed them to be true; and that he was thereby induced to pay and deliver to defendant money and property of the value of $6,000 for said note and deed of trust.

Further, the petition alleges that said land was not located in a fertile part of Howard county; that it was not gently rolling land, and was not worth to exceed $1,300; that Eudoris R. Brown was not the owner of any farm in Howard county, Mo.; that he was not a resident of said county, and that after diligent search plaintiff was unable to locate said Brown or learn anything of his whereabouts; that plaintiff believed and therefore alleged the fact to be that Eudoris R. Brown was a fictitious person, but, if not fictitious, would be found to be insolvent.

It was further alleged that the note secured by said deed of trust became due March 1, 1923; that plaintiff had caused the land to be sold under said deed of trust, and that at the trustee's sale plaintiff became the purchaser thereof for $1,300; that the land was cut up by ravines and ditches, and was covered with brush and small and worthless timber, and was very rough and hilly; that credit was"given on the said note for $1,234.60, the net proceeds of the sale; and that, by reason of the false and fraudulent statements and representations of defendant, the balance of $5,780.40 had been lost to plaintiff, and was due him from defendant. A judgment for this amount is sought.

The note involved is set out in the petition, and is as follows:

                  "$6,000.00             March 1, 1921
                

"Two years after date I promise to pay to G. F. Peaveler or order Six Thousand Dollars value received, with interest from date at the rate of 7 per cent. per annum, negotiable and payable without defalcation or discount.

                            "[Signed] Eudoris R. Brown."
                

The deed of trust purporting to secure said note is dated March 14, 1921, and names Charles H. Jones as trustee and G. F. Peaveler, defendant herein, as cestui que trust, and recites the same was made to secure the payment of the note above mentioned. The deed of trust purports to have been acknowledged before one Edwin C. Orr, notary public, and describes Eudoris R. Brown as "single and unmarried."

The answer was a general denial. The trial was to the court and jury and there was a verdict and judgment for plaintiff in the sum of $3,265. A motion for a new trial was ineffectual and defendant appeals.

The evidence on behalf of plaintiff tended to prove the allegations of his petition to the effect that the trade, whereby the note was purchased by plaintiff from defendant, was made in March, 1921. Plaintiff tetified that both he and defendant resided in Brookfield, Mo., at the time the trade was made, but that shortly afterward plaintiff removed to Woodward, Okl., where he resided at the time of the trial; that defendant represented to him that the land in question was valuable; that it was productive, and only gently rolling; that it was in grass, and had not been plowed for a number of years; that he had sold the farm to Brown for $10,000, and had taken back a mortgage for $6,000 which had two years to run at 7 per cent. interest; that the land could be cultivated; that Brown was a rich man, owning a large farm in the state of Iowa, with lots of cattle and that he owned other lands adjoining that covered by the mortgage. He further testified that he had never been in Howard county, had never seen the land, and that he relied on what defendant told him and traded defendant his residence property, a half interest in his pool hall, and $1,000 in cash for the note and deed of trust.

The evidence on behalf of plaintiff further tended to show that the land in question was covered with brush; that the larger timber had been cut off, and) that the land is hilly and has great gulches through it, and that, although an effort was made to get others to bid on it when it was sold under the deed of trust, no one could be induced to bid on it against plaintiff's attorney, who bid it in for plaintiff; that the land sold at the trustee's sale for $1,300, and the expense of the sale was deducted from the amount bid, and the balance of $1,234.60 was duly credited on the note. It was also shown that defendant purchased the land from the Brookfield) Investment Company only a short time previous to the trade in question, for $2,000 cash. Charles H. Jones, trustee in the deed of trust, who was a member of the Brookfield Investment Company, testified that, when the investment company sold the land to defendant, they thought they were selling it at $20 per acre less than its actual value.

The evidence of defendant tends to refute the allegations of the petition. Defendant, testifying for himself, denied having made any of the false representations alleged in the petition and testified to by plaintiff; that Jones, the trustee, had given him a typewritten description of the land, dated October 18, 1920, reading as follows: "240 acres of land in Howard county, Missouri, described as the southeast quarter and the east half of the southwest quarter, section 14, township 51, range 14, timber land, but could all be farmed when cleared, located 18 miles south of Moberly and 10 miles southeast of Higbee;" and that he (defendant), had shown this slip to plaintiff and at the same time told plaintiff that was all he knew about the land.

At the close of the evidence defendant asked an instruction in the nature of a demurrer to the evidence, which was refused. In his assignments of error, defendant charges that the court erred (1) in refusing the instruction in the nature of a demurrer to the evidence; (2) in giving plaintiff's instructions 5 and 6; and (3) in overruling the motion for a new trial.

In considering the first of these assignments, it is proper to note that the petition charges fraud and deceit, and the answer, being a general denial, places this question squarely in issue. It is argued that the value of the note and deed of trust depends upon three things; (a) The solvency of Brown, the maker thereof; (b) the value of the land covered by the deed of trust; and (c) the solvency of defendant. It is urged that of these three elements there is evidence of the value of the land and that there is no evidence as to the other two elements.

First, as to the solvency of Brown, the petition alleges that Brown is a fictitious person, but if not, he cannot he found, and is wholly insolvent. On this point, plaintiff testified that defendant told him Brown lived at Ft. Madison, Iowa; that he wrote Brown at that address, but his letter was returned unclaimed; that this letter was written at the time the first year's interest became due; that this was the only effort made by plaintiff to locate Brown; and that there is no evidence showing whether Brown was solvent or not, and, as to defendant's solvency, it is urged there is no evidence whatever.

Def...