Thiemann v. Heinze

• Decision Date: 05 March 1894
• Parties: Thiemann, Appellant, v. Heinze et al
• Court: Missouri Supreme Court

25 S.W. 533

120 Mo. 630

Thiemann, Appellant, v. Heinze et al

Supreme Court of Missouri, First Division

March 5, 1894

Appeal from St. Louis County Circuit Court. -- Hon. W. W. Edwards Judge.

Affirmed.

C. M Napton for appellant.

The fraud in this case consisted in two things: First. The representation that the house plaintiff was buying was "a good business" -- a "nice business." Second. In the concealment from plaintiff of the true character of the business. "If the representation is of a material fact, and induces the contract, it is, even when innocently made, a good ground for setting aside the contract." Shackelford v. Handley, 1 A. K Marsh. 496. If statements, false in fact, were made, but believed to be true, then the person making them is responsible, if he should have known the fact. Slim v. Croucher, 2 Giff. 37. Heinze says he did not know the business in St. Louis was that of keeper of a house of prostitution, but he is responsible whether he did or not. We had a right to rely upon Heinze's representations, and it is no defense that we may have ascertained the facts by a thorough investigation. Bank v. Hyatt, 58 Cal. 234. On a sale of a business establishment, if the purchaser has no knowledge of the business, and relies on the seller's statement, and the seller's statements are false, although he believes them to be true, still he is liable. Brown v. Fenn, 90 Pa. St. 359; 5 Lawson's Rights, Rem. and Pr., secs. 2350, 2351.

John W. McElhinney for respondents.

(1) There is no reversible error in the matter of permitting Heinze to testify as to contents of the letter written to plaintiff. First. No exception was saved by counsel at the time his objection was overruled. He should have apprised the court that he would further insist that the ruling was erroneous. Second. A sufficient foundation was laid for the admission of this evidence. Mrs. Thiemann testified that they had received no such letter, and counsel for plaintiff stated that Thiemann says he got no such letter. Therefore they could not complain of having received no notice to produce it. On the other hand, Mr. Heinze testified that he mailed it to their address with a return request upon the envelope and it was not returned. There is, therefore, some evidence that they received it, notwithstanding their denial. The only ground of the objection made was that there was no proof that the letter was received. The proof of foundation for admission of secondary evidence is largely in the discretion of the trial court. Henry v. Diviney, 101 Mo. 378; Christy v. Kavanagh, 45 Mo. 375; Philipps v. Scott, 43 Mo. 86. (2) There was no fraud.

Black P. J. Barclay, J., absent.

OPINION

Black, P. J.

Louis Thiemann, plaintiff, owned a house and lot in Clayton, near the city of St. Louis. The defendant, Hermann Heinze and August Richter owned certain furniture and personal property which they used in carrying on a lodging house in the city of St. Louis, known as the Arlington Hotel. On the eighteenth of November, 1889, Thiemann and Heinze made an exchange of properties, whereby Heinze transferred his one-half interest in the personal property to Thiemann at the estimated value of $ 1,200. Thiemann conveyed his house and lot to Heinze at the value of $ 800 and gave his note for the remaining $ 400, secured by a chattel mortgage on the one-half interest in the personal property so purchased of Heinze. Thiemann and his wife moved into the hotel, and they and Richter carried on a lodging house business for five or six months. Differences arose between Richter and Mrs. Thiemann and Thiemann sold his half interest in the personal property to one Gold on the twenty-second of April, 1890, for $ 1,200, taking the notes of Gold for that amount, secured by a chattel mortgage on the interest in the personal property so sold. Thiemann and his wife then left the hotel.

In June, 1890, Heinze conveyed the lot which he received from Thiemann, to the defendant Sanguinet for the consideration of $ 900.

Richter and Gold carried on the lodging house business for a period of about six months after Gold purchased Thiemann's interest in the furniture, that is to say, after April, 1890. During that period Gold paid six of the notes of $ 20 each, which he had given Thiemann, but failed to make any further payments. Thiemann then took back the undivided half interest in the personal property which he sold to Gold. This interest was sold in March, 1891, under the chattel mortgage given by Thiemann to secure the $ 400 to Heinze, and Heinze became the purchaser at the price of $ 300, that being the amount then due on the $ 400 note. Thereafter Heinze and Richter sold the personal property for $ 1,050, out of which Heinze received $ 300 and no more.

Thiemann commenced this suit in May, 1891, to...