Thompson v. Newell
| Decision Date | 07 May 1906 |
| Citation | 94 S.W. 557,118 Mo.App. 405 |
| Parties | FRANK THOMPSON et ux., Appellants, v. J. P. NEWELL, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Jasper Circuit Court.--Hon. Hugh Dabbs, Judge.
AFFIRMED.
Judgment affirmed.
E. O Brown and George Hubert for appellants.
(1) The false statement by defendant as to the actual cost of the farm in question, was the representation of a fact, not a mere opinion as to the value of the property. The rule is well established that it is actionable fraud to deceive a purchaser into buying through false statement of the actual cost of property. Pendergast v. Reed, 29 Md. 398, 96 Am. Dec. 539; Carter v. Brinninger, 36 N. J. L. 513 97 Am. Dec. 737; Salm v. Israel, 74 Iowa 314; Webb v. Steiner, Mo.App. , 87 S.W. 619-20; Page on Contracts, sec. 105; Teachout v. Van Hoesen, 76 Iowa 113, 14 Am. St. Rep. 206; Dorr v. Cory, 108 Iowa 732, 86 N.W. 256; McClellan v. Scott, 24 Wis. 81; Kerr on Fraud and Mistake, 88; Mason v. Thornton (Ark.), 84 S.W. 1048; Fairchild v. McMahon, 138 N.Y. 290, 26 Am. St. Rep. 701; Sanford v. Handy, 23 Wend. 260; Van Epps v. Harrison, 5 Hill 63, 40 Am Dec. 314; Goldenburg v. Hoffman, 69 N.Y. 326; Zang v. Adams, 23 Colo. 408, 58 Am. St. Rep. 249; Wilson v. Higbee, 62 F. 723; Bradley v. Pool, 98 Mass. 169, 93 Am. Dec. 144; Clark v. Dickson, 6 Conn. B. N. S. 433; Stewart v. Lester, 56 S.Ct. (N. Y.) 49 Hun 58; McAleer v. Horsey, 35 Md. 439-52; McFadden v. Robinson, 35 Ind. 24; Paetz v. Stoppleman, 75 Wis. 510-15; 2 Warv. Vend. 972; Bunn v. Schnellbacher, 163 Iowa 328; Dillman v. Nadehopper, 19 Ill.App. 375-382; Adams v. Seule, 33 Vt. 538; Manning v. Albee, 11 Allen 524; Medbury v. Watson, 6 Pickering 246; Short v. Stevens, 63 Penn. 95. (2) A party defrauding in a contract has his election of remedies, he may stand to the bargain even after he discovers the fraud and recover damages on account of it, or he may rescind the contract and recover what he had paid. Heman v. Glann, 129 Mo. 325; Finley v. Bryson, 84 Mo. 669; Parker v. Marquis, 64 Mo. 41. (3) The full measure of damages due the plaintiffs in this case was the difference between the cost price actually paid for the property, and the present cost price for which it was sold by defendant, upon the false representation of the amount of the cost to him, and plaintiffs' reliance thereon. 4 Am. and Eng. Ency. Law, p. 125, sec. 8; Pendergast v. Reed, 29 Md. 398; Crater v. Brinniger, 33 N. J. L. 513; Salm v. Israel, 74 Iowa 314; Garnett v. Wannfried, 67 Mo.App. 437-41; 14 Am. and Eng. Ency Law, p. 123, sec. C; Webb v. Steiner, 87 S.W. 619-20; Page on Contracts, sec. 105; Morse v. Hutchins, 102 Mass. 440; Staines v. Shore, 16 Pa. St. 203; Veaxie v. Williams, 8 How. (U.S.) 134; Springer v. Kleinsorge, 83 Mo. 152; Bohm v. Bach, 33 Am. Dec. 561; Peacock's Appeal, 53 Am. Dec. 563; Towle v. Leavitt, 55 Am. Dec. 197-9; Bradley v. Baynard, 83 Am. Dec. 170-1; Cases Collected by Note in 96 Am. Rep. 267; Curtis v. Aspinnall, 19 Am. Rep. 336; Peck. v. List, 48 Am. Rep. 114-6; Hartwell v. Gurney, 13 A. 114; Stoyker v. Vanderbelt, 25 N. J. L. 502; 4 Sutherland Dam. (3 Ed.), p. 3410. (4) The allegations of the petition, which were fully sustained by the evidence going to the character of the alleged wrong as a wanton or willful injury by deceit and fraud entitled the plaintiffs to examplary damages by the great weight of authority. Singleton v. Kennedy, 9 B. Mon. (Ky.) 225; Lane v. Wilcox, 55 Barb. 615; Ives v. Carter, 24 Conn. 392; Platt v. Brown, 30 Conn. 336; Bennett v. Gibbons, 55 Conn. 450; Kelley v. Valentine, 17 Ill.App. 87; Tate v. Watts, 42 Ill.App. 103; Wheeler v. Randall, 48 Ill. 182; McAroy v. Wright, 25 Ind. 22; Byrum v. McGuire, 3 Head (Tenn.) 530; Oliver v. Chapman, 15 Tex. 400; Nye v. Merriman, 35 Vt. 438; Railroad v. Cellars, 93 Ala. 9, 30 Am. St. Rep. 17; Hafly v. Baker, 19 Kan. 9; Wilson v. Vaughan, 23 F. 229; Bergman v. Jones, 94 N.Y. 51; Croaker v. Railroad, 17 Am. Rep. (Wis.) 504; Borland v. Barrett, 76 Va. 28.
McReynolds & Halliburton and Thomas & Hackney for respondent.
(1) It appeared from the plaintiff's evidence and from the only evidence introduced on this subject, that the land purchased by the plaintiffs from the defendant was well worth the purchase price paid by plaintiffs and in consequence the plaintiffs were not injured. (2) Considering the situation of the parties, that they were strangers, dealing at arm's length the plaintiff's thorough examination of and familiarity with the land, their opportunity to investigate for themselves and the fact that the defendant did not resort to any trick or artifice to deter investigation, the alleged representation of the defendant that he was selling the land to them at what it cost him, was not actionable. (3) Before the plaintiffs could recover in an action for fraud and deceit they must show that they have been injured or damaged. Fraud without damage gives no cause of action. Lenox v. Harrison, 88 Mo. 496; Crum v. Wright, 97 Mo. 18; Lewis v. Land Co., 124 Mo. 688; Bank v. York, 8 Mo.App. 604; McBeth v. Craddock, 28 Mo.App. 380; Remedy Co. v. White, 90 Mo.App. 498; Edwards v. Noel, 88 Mo.App. 434; Paretti v. Rebenack, 81 Mo.App. 494; Bank v. Byers, 139 Mo. l. c. 652; Ming v. Woolfolk, 116 U.S. 599; Jordon v. Pickett, 78 Ala. 331; Holton v. Noble, 83 Cal. 7; Freeman v. McDaniel, 23 Ga. 354; Fuller v. Hogden, 25 Me. 243; Danforth v. Cushing, 77 Me. 182; Bayard v. Holmes, 34 N. J. L. 296; Nye v. Merrian, 35 Vt. 438; 14 Am. and Eng. Ency. Law (2 Ed.), pp. 137-8. See authorities cited in 23 Century Digest, column 1716, sec. 24, title G; Bartlett v. Blaine, 83 Ill. 27; Crater v. Binninger, 33 N. J. L. 513. (4) Before plaintiffs can recover in an action for fraud and deceit they must not only show false representation and damages, but must show reliance upon the representations, and that they were material and that they used reasonable care to investigate or ordinary prudence. Brownless v. Hewitt, 1 Mo.App. 360; Franklin v. Holle, 7 Mo. 241; Anderson v. McPike, 86 Mo. 293; Dulaney v. Rodgers, 64 Mo. 201; Priest v. White, 89 Mo. 609; Felix v. Shirley, 64 Mo.App. 621. See authorities cited in 13 Century Dig., column 1690, sec. 17, column 1696, sec. 19. (5) Representations made by the vendor of real estate as to what he paid for the land or as to the value of the land, or what he has been offered for the land, when made to a vendee as to whom he occupies no confidential relation, and where the vendee has an opportunity to and does examine the property, are not actionable even though false and made with a view to deceive, and will furnish no ground for an action for deceit. They are looked upon merely as representations in regard to value, uttered for the purpose of enhancing the price and any party who relies upon them is considered as too careless of his own interest to be entitled to relief. 58 Central Law Journal, 487, note 24 (where authorities are carefully reviewed, and distinguished); Cornwall v. Real Estate Co., 150 Mo. 383; Brownlow v. Woolard, 61 Mo.App. 133; Litho. Co. v. Obert, 54 Mo.App. 247; Holbrook v. Connor, 60 Me. 578, 11 Am. Rep. 212; Martin v. Jordan, 60 Me. 531; Long v. Woodman, 58 Me. 52; Bourn v. Davis, 76 Me. 223; Homer v. Perkins, 124 Mass. 421; Parker v. Moulton, 114 Mass. 99; Cooper v. Lovering, 106 Mass. 79; Manning v. Albee, 11 Allen (Mass.) 522; Hemmer v. Cooper, 8 Allen (Mass.) 334; Gordon v. Parmlee, 2 Allen (Mass.) 212; Medbury v. Watson, 4 Met. (Mass.) 24, 39 Am. Dec. 726; Hank v. Brownell, 120 Ill. 161; Dillman v. Naddehoffer, 119 Ill. 567-575; Luck v. Downing, 76 Ill. 71; Noething v. Wright, 72 Ill. 390; Banta v. Palmer, 47 Ill. 99; Burns v. McHannah, 39 Kas. 87; Graffenstein v. Epstein, 23 Kan. 443, 33 Am. Rep. 171; Cole v. Smith, 26 Colo. 506, 58 P. 1086; Zang v. Adams, 23 Colo. 408, 48 P. 509; Weir v. Jones, 14 Colo. 493, 24 P. 262; Mayo v. Wahlgreen, 9 Colo.App. 506, 514, 50 P. 40; Shade v. Crevesten, 93 Ind. 591; Bell v. Byerson, 11 Iowa 236, 77 Am. Dec. 142; Williams v. Hicks, 2 Vt. 38, 19 Am. Dec. 693; Henderson v. Henshell, 54 F. 320, 4 C. C. A. 357; Benjamin on Sales (6 Ed.), p. 562.
Action to recover damages alleged to have been sustained in consequence of deceit practiced by defendant in the sale of land to plaintiffs. At the conclusion of the introduction of their evidence, plaintiffs were nonsuited and bring the case here on appeal.
The controversy arises out of the sale of a farm of four hundred and five acres lying in Jasper county some four miles from Carthage. On May 9, 1903, the parties entered into a contract in writing, wherein it was agreed that "in consideration of the payment by the parties of the second part (plaintiffs) to the party of the first part (defendant) of the sum of $ 20,000, to be paid in the manner and times hereafter mentioned, the party of the first part agrees to sell and convey by good and sufficient warranty deed containing the usual covenants of warranty, free from all incumbrances, the following described real estate," etc. The terms of this contract are of no importance to the present inquiry and need not be stated. Before this suit was begun, it was fully executed by the payment in full of the purchase price and the delivery of a deed to plaintiffs. Possession of the premises was given them when the contract was made.
The deceit, which plaintiffs contend gives them a cause of action in damages, will appear from these facts collated from the evidence introduced by them.
Defendant a real estate dealer in Carthage, owned and for some two years had owned the farm and was endeavoring to sell it. He bought it from a man living in Jasper county and paid $ 16,000 for it, but at his request the deed he received (duly recorded) expressed a consideration of $...
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