Thompson v. Lyons

• Decision Date: 13 March 1920
• Docket Number: No. 20538.,20538.
• Citation: 281 Mo. 430,220 S.W. 942
• Parties: THOMPSON et al. v. LYONS et al.
• Court: Missouri Supreme Court

220 S.W. 942

281 Mo. 430

THOMPSON et al. v. LYONS et al.

No. 20538.

Supreme Court of Missouri, Division No. 2.

March 13, 1920.

Appeal from Circuit Court, Jackson County; Thomas B. Buckner, Judge.

Action by Hugh A. Thompson and another against Timothy J. Lyons and another. From a judgment for plaintiffs, defendants appeal. Affirmed.

John H. Lucas and William G. Holt, both of Kansas City, Mo., and C. W. Trickett, of Kansas City, Kan., for appellants.

Cooper, Neel & Wright, of Kansas City, for respondents,

WHITE, C.

The plaintiffs, in the circuit court of Jackson county, June 6, 1917, in an action for fraud and deceit, recovered judgment against the defendants in the sum of $11,835.95, and the defendants appealed. The suit was begun against Lyons and Fred Meyn, and afterwards, on the suggestion of the death of Meyn, his administrator, Strother, was made party defendant, and amended petition filed.

The amended petition on which the trial was had alleged, in substance, that in June, 1911, and for a long time prior thereto, the plaintiffs were well acquainted with Lyons and Meyn and reposed confidence in them; that in the fore part of June, 1911, Lyons and Meyn represented to plaintiffs that they had an offer of two tracts of land in Kansas City, Kan., comprising 10.814 acres, for sale at a price of $3,000 per acre; that the land was easily worth the price; that Lyons and Meyn were well acquainted with such values, and the land could not be bought for less money; that they desired the plaintiffs to go in with them in the purchase of said land at $3,000 an acre, in which the plaintiffs were to take a half interest and pay one-half the purchase price; that the plaintiffs had no knowledge of the value of such land, and relied upon the representations of Lyons and Meyn as to the value of the land and the price to be paid for it; that afterwards Lyons and Meyn represented that they had bought the land at $3,000 per acre, and requested the plaintiffs to pay one-half the purchase price; and the plaintiffs, relying upon the truthfulness of the statements, paid to Lyons and Meyn one-half of the supposed purchase price of $3,000 per acre, a total sum of $16,200; that Lyons and Meyn secured title to the property, and caused the same to be conveyed to said Meyn; that Meyn thereupon transferred to Frank Thompson, for the benefit of the plaintiffs, an undivided one-half interest in the same; the land was not worth $3,000 per acre; that instead of Lyons and Meyn paying for the land $3,000 an acre, or $32,442, as they fraudulently stated to the plaintiffs, they paid for all of said land only $14,920, or $1,362.29 per acre; that Lyons and Meyn paid the entire purchase price out of the money plaintiffs paid, and retained $1,280 themselves; that plaintiffs first learned in May, 1916, that the said representations were false; that by reason of the said fraud the plaintiffs were defrauded out of the sum of $8,740 on the 11th and 19th of July, 1911, and ask judgment for that sum, with interest.

The defendants filed separate answers, each substantially setting up the same defense. After a general denial it is alleged, in defense, that the facts stated in the amended petition arose wholly in the state of Kansas, and are governed by the laws of Kansas. Mo., The answers then set up in bar of the action the statute of limitations of Kansas, as follows:

"Civil actions other than for the recovery of real property can only be brought within the following periods after the cause of action shall have accrued and not afterwards: * * * (3) Within two years; * * * an action for relief on the ground of fraud—the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud."

The answers further set up in defense the statute of limitations of the state of Missouri, in that the cause of action accrued more than five years before, and that the plaintiff knew, or by the exercise of reasonable diligence could have known, all the matters alleged in the petition more than five years prior to the commencement of the suit, and for that reason the action was barred by both the statute of limitations of Kansas and the statute of limitations of Missouri.

In reply to each separate answer the plaintiffs denied each and every allegation in the answers contained, except that Strother was the administrator of Fred Meyn; denied that the cause of action was barred by the statute of limitations, and alleged that—

"The facts constituting fraud, pleaded in plaintiff's amended petition, were not discovered by plaintiffs until June, 1916, and a few days prior to the institution of this suit, and that defendants Lyons and Meyn concealed said fraud and the matters, facts, and things constituting the same, as well as any means or sources of information, by or through which plaintiffs, by the exercise of ordinary diligence, could have discovered same."

The reply further alleged that by reason of the relation that existed between plaintiffs and defendants, and by reason of the confidence plaintiffs reposed in defendants, and by reason of the statements of defendants, and each of them, plaintiffs were induced not to let themselves be known in said transaction, and not to make any inquiry concerning the same.

A trial by jury resulted in a verdict and judgment for plaintiff for the amount sued for, with 6 per cent. interest from the date the money was paid.

Hugh Thompson, one of the plaintiffs, testified that he had known defendant Timothy J. Lyons in the Philippine Islands; had been there in the war, and had known him since 1902; that he had known Meyn about the same length of time; that he lived 2½ or 3 blocks from Lyons, and saw him probably every evening prior to June, 1911. He first got acquainted with Lyons when Lyons was running for alderman in the sixth ward in Armourdale, and he assisted and spent money in helping elect him. Witness had a nickname of "Frock," by which Lyons called him. He related the statements of Mr. Lyons to him, as follows:

"I met Mr. Lyons another evening, and he said, `Frock, do you want to make some money? you have always helped me in political matters, and I want to make you a lot of money' and I said, `How is that, Tim;' and I commenced laughing, and he said, `There is a piece of land out here I can buy for $3,000 an acre, and I want you to go in with me, and Frank and Meyn, and buy that.' I said, `Let's go out and look at it,' and we jumped in the car and went out and looked at it, and I said, `Is it all right, Tim?' and he said, `Yes; it is a good buy;' and I said, `All right, Tim; go ahead and buy it;' and it was $3,000 an acre. They went ahead and bought the ground."

Witness stated that his brother was present and heard the conversation; witness then stated, further, when himself, his brother, and Lyons were present:

"Q. Go ahead and state what occurred at the time the three of you went out there. A. Tim said, `I and Fred Meyn can buy this ground for $3,000 an acre.' He said, `We have not enough money to buy it, and I want you boys;' he kept talking to me all the time—he was not very well acquainted with Frank—because Tim and me had been friends, and I considered him one of my friends; and up to to-day I have not had the abstract examined to that property

"Q. (Interrupting) When he said, `You boys,' who was it he referred to? A. To Frank and I. He said, `I want to make you boys some money,' and I said, `Is this property worth the money?' and he said, `Yes; it is cheap. He said, `Fred Meyn and I will buy this property, and we want you to go in with us, but we don't want you to be known in the deal until we get the abstract.'

"Q. Was there any talk as to what interest you would have in the property? A. One-half interest.

"Q. One-half to who? A. One-half to the two Thompsons, and one-fourth to Mr. Fred Meyn, and one-fourth to Mr. Tim Lyons, and said, `Why don't you want me to be known in the deal?' and he said, `I am county commissioner, and Fred Meyn is president of the drainage board,' or a member of the drainage board, `and for the stockyards company we have done a lot of favors, and we can get this cheaper by your not being known in the deal.' * * *

"Q. What part of the money were each of you to put up? A. We were each to put up one-half; the Thompsons were to put up one-half, and Mr. Fred Meyn one-fourth, and Mr. Tim Lyons one-fourth.

"Q. On what basis per acre? A. $3,003 per acre.

"Q. Now did you have any subsequent meetings at which any of you were present; if so, which ones? A. We did meet several times in front of Mr. Lyons' and talked it over.

"Q. Was Mr. Meyn present at any of those meetings? A. Yes, sir."

In relating a conversation when Meyn was present, he continued:

"A. In the evening we met there in front of Mr. Lyons' house, and Mr. Meyn said, `Now, this is a great buy'—

"Q. (Mr. Neel). Not what Mr. Meyn said. A. Mr. Lyons said, `This is a great buy, and I would not let no one else in on this at all, be" cause there is a man by the name of Rieger, of the Rochester Brewing Company, wanted in on this, but he never helped me like you have in politics, and I want you in;' that is what Mr. Tim Lyons said. * * *

"Q. Any other conversation in the presence of Mr. Meyn, not what he said. Any conversation when he was present, between you and your brother or Mr. Lyons? A. Mr. Lyons said that they were members of the drainage board and members of the county commissioners, and they didn't want us known in the deal until it was closed up.

"Q. At any time when Mr. Meyn was present was the purchase price referred to? A. At $3,000.

"Q. And when Mr. Meyn was present, was, anything said between you and Mr. Lyons, or your brother and Mr. Lyons, as to what interest you would have? A. One-half interest. * * *

"Q. Now, how long did these talks and negotiations prolong, Mr. Thompson, before any check was given? Approximately, I mean? A. Three or four days.

"Q. Now, was there any...