Thaler v. Niedermeyer

• Decision Date: 03 November 1914
• Docket Number: No. 13595.,13595.
• Citation: 170 S.W. 378
• Parties: THALER v. NIEDERMEYER et al.
• Court: Missouri Court of Appeals

170 S.W. 378

THALER v. NIEDERMEYER et al.

No. 13595.

St. Louis Court of Appeals. Missouri.

November 3, 1914.

1. APPEAL AND ERROR (§ 501) — NONSUIT — NECESSITY OF EXCEPTIONS — REVIEW.

The rule that where plaintiff suffers a nonsuit, and, after unsuccessfully moving to set it aside, appeals, a failure of the record to show an exception saved to the action of the court in compelling the nonsuit is fatal, though there is an exception to the court's action in refusing to set the nonsuit aside, does not apply to a case where the court did set the nonsuit aside, and defendant is appealing from such order.

2. APPEAL AND ERROR (§ 549) — RECORD — EXCEPTIONS — NONSUIT.

Where plaintiff was compelled to take a nonsuit, because of the court's action in giving peremptory instructions for defendants, and successfully moved to set the nonsuit aside and for a new trial, the fact that the bill of exceptions taken on defendants' appeal from such order did not show that plaintiff excepted to the court's action in giving such peremptory instructions did not change the nonsuit to a voluntary one.

3. APPEAL AND ERROR (§ 549) — RECORD — BILL OF EXCEPTIONS — NECESSITY OF EXCEPTION.

A party may not review a ruling on appeal if the record does not show an exception to the ruling in the proper place in the record, to wit, the bill of exceptions, regardless of how much the party objected below, or how plainly it appeared that he did not assent to or acquiesce in the ruling.

4. DISMISSAL AND NONSUIT (§ 81) — MOTION TO SET ASIDE NONSUIT — JURISDICTION — HEARING AT SUBSEQUENT TERM.

Where plaintiff took a voluntary nonsuit, with leave to set it aside, and duly moved for that purpose at the same term, the court retained jurisdiction of the cause during the pendency of the motion, and, the same having been duly continued from term to term, had power at a later term, by setting aside the nonsuit, to correct its own error.

5. FRAUD (§ 58) — EXCHANGE OF PROPERTY — PRIMA FACIE CASE.

In an action for fraud in inducing plaintiff to exchange property, evidence held to establish a prima facie case that plaintiff was induced to make the exchange by representations which defendants knew were false, and which were made by them with intent that plaintiff should rely thereon, to his damage.

6. FRAUD (§ 11) — FALSE REPRESENTATIONS — EXCHANGE OF PROPERTY.

Where defendants, in order to induce plaintiff to exchange a flat building for a farm, falsely represented that the farm was actually rented for 1909 for $1,600 cash rent, and showed plaintiff a note executed by the alleged tenant for such amount, when in fact the note was a mere blind, and the tenant was in possession under an agreement to deliver half of the crop that he raised as rent, being paid $20 a month by defendants for his living expenses, to be deducted from his portion of the crop at the end of the year, such representation was material and not a mere expression of opinion, and actionable.

7. FRAUD (§ 22) — DEFENSES — NEGLIGENCE.

Defendants, having induced plaintiff to make an exchange of real property by fraudulent representations, could not escape liability therefor on the ground that plaintiff was negligent or foolish in relying on such statements.

8. FRAUD (§ 64) — FALSE REPRESENTATIONS — WARNING.

Where plaintiff had been furnished, as he believed, positive and convincing proof that a farm defendants were seeking to exchange with him for a flat building was actually under lease for 1909 at a rental of $1,600, and, nothing appeared to challenge the truth of such fact, plaintiff was not bound, as a matter of law, to place no reliance thereon because he was advised by his attorney that, in the latter's opinion, the farm was much less valuable and could not have been rented for such sum.

Appeal from St. Louis Circuit Court; W. M. Kinsey, Judge.

Action by Solomon Thaler against F. W. Niedermeyer and another. From an order setting aside a nonsuit suffered by plaintiff, and granting him a new trial, defendants appeal. Affirmed.

See, also, 170 S. W. 383.

McBaine & Clark, of Columbia, and Ryan & Thompson, of St. Louis, for appellants. Wm. H. Clopton, of St. Louis, for respondent.

ALLEN, J.

This is an action at law for damages alleged to have been sustained by the plaintiff by reason of false and fraudulent representations of the defendants in connection with a real estate transaction. Plaintiff suffered a nonsuit below, and this appeal is from an order setting aside the same, and granting a new trial, as to these appellants.

Because of questions raised here, we note the precise state of the record respecting the taking of the nonsuit and the setting aside of the same. As instituted, the suit was against these appellants, Niedermeyer and Kline, and another defendant, an attorney. The trial was before the court and a jury, and at the close of plaintiff's case the court declared the law to be that the plaintiff could not recover, and gave peremptory instructions in the nature of demurrers to the evidence, separately offered by all three defendants. Thereupon plaintiff's counsel, after amending his petition, by leave, reducing the amount of his claim for damages, stated to the court: "Now, then, on the giving of this instruction, I take an involuntary nonsuit, and I ask leave to file a motion to set the same aside." To this the court replied: "That may be done." The record then states: "And thereupon the court gave said instruction, as requested, and the plaintiff took a nonsuit as prayed."

The judgment, thereupon entered, recited the giving of the peremptory instructions, and that "owing to the adverse rulings of the court, as aforesaid," plaintiff took a nonsuit. Thereafter, in due time, during the same (February 1912) term of the circuit court, plaintiff moved to set aside the nonsuit. This motion was continued, and was not passed upon until two terms later, to wit, the June term, 1912, when the court sustained the motion and set aside the nonsuit as to the defendants, Niedermeyer and Kline, and they appealed.

The bill of exceptions filed herein by the appealing defendants shows no exception saved by plaintiff to the giving of the peremptory instructions forcing the nonsuit. And thereby hangs a tale, not told in the record brought here by these defendants, but in that brought by plaintiff, who appealed from an order overruling a motion filed by him to amend the aforesaid bill of exceptions nunc pro tunc to show that plaintiff in truth duly saved his exceptions to the action of the court compelling the nonsuit. Defendants, Niedermeyer and Kline, filed their bill of exceptions herein on August 30, 1912; and the record in plaintiff's appeal shows that on March 10, 1914, plaintiff moved to amend such bill of exceptions in the manner above indicated. This motion was later overruled, plaintiff appealing; and the two appeals were here docketed and heard together. A separate opinion has been written disposing of the question raised by plaintiff's appeal, to which we shall hereinafter have occasion to refer.

The controversy grows out of a transaction between plaintiff and the defendants, Niedermeyer and Kline, whereby plaintiff exchanged certain real property owned by him in the city of St. Louis for a farm in Boone county, Mo. The title to the farm, it seems, was in defendant Niedermeyer when the negotiations were begun, but it is said that it had been previously sold to defendant Kline, though no deed thereto appears of record from Niedermeyer to Kline.

Plaintiff resided in the city of St. Louis, and Niedermeyer and Kline in Boone county, Mo. Plaintiff owned an apartment building, consisting of four apartments, in the city of St. Louis, valued by him at $28,000. It appears that two of the apartments rented for $55 per month each, and the other two for $50 each. And plaintiff testified that but one was vacant at the time here in question. The property was incumbered by a deed of trust for $16,000.

Plaintiff testified that on or about January 1, 1909, defendant Kline called him by long distance telephone, from Columbia Mo., and inquired concerning plaintiff's said property, and said that he had a farm to trade therefor; that three days later Kline came to St. Louis, saw plaintiff, and told him of the farm, saying that it contained 160 acres, was an extra good farm, and brought in a rental of $1,600 per year. After Kline had inspected plaintiff's property, plaintiff told him that he would let him know about the matter. On January 17, 1909, after receiving, as he says, many long distance telephone calls from Kline, plaintiff went to Centralia, Mo., where he met both Kline and Niedermeyer, from which place the three went by train to Brown Station, and from there drove out to the farm. While at Centralia they conversed about the farm, and plaintiff says that Niedermeyer declared that the farm was worth $100 per acre, a total of $16,000, but that Kline was going to marry a young lady with $30,000 in cash, and did not "want to bother any more with farms." Plaintiff says that they reached the farm between 4 and 5 o'clock in the afternoon, and stopped in front of the farmhouse near the road; that he saw a man in the yard, whom he afterwards learned to be one Brockman, who was living upon the place, and said that he would "go in and see the farmer," but that Kline thereupon said to Niedermeyer: "You take Mr. Thaler around and show him the farm, and I will go in the house." And plaintiff says that thereupon Kline went into the house, and Niedermeyer drove plaintiff about 25 feet therefrom and showed him the farm; that a few minutes later he and Niedermeyer went into the house where plaintiff was introduced to Brockman, supposed to be the tenant.

According to plaintiff's testimony, while the four were seated before a fire in the house, plaintiff asked Brockman if he had the farm under lease, and Brockman replied that he had. Plaintiff then asked Brockman what rent he paid, and the...