Torbitt v. Hayes

• Decision Date: 21 May 1917
• Docket Number: No. 12416.,12416.
• Citation: 196 S.W. 788
• Parties: TORBITT v. HAYES.
• Court: Missouri Court of Appeals

196 S.W. 788

TORBITT v. HAYES.

No. 12416.

Kansas City Court of Appeals. Missouri.

May 21, 1917.

On Motion for Rehearing, July 2, 1917.

Appeal from Circuit Court, Saline County; Samuel Davis, Judge.

"Not to be officially published."

Action by Louella E. Torbitt against E. J. Hayes. Judgment for plaintiff, and defendant appeals. Reversed.

Sam C. Major, of Fayette, R. M. Reynolds and Duggins & Duggins, all of Marshall, and R. M. Bagby, of Fayette, for appellant J. L. Stephens, M. R. Conley, and H. A. Collier, all of Columbia, A. W. Walker, of Fayette, and Joshua Barbee, of Marshall, for respondent.

ELLISON, P. J.

Plaintiff's action was instituted to recover damages for fraud and deceit in an exchange of lands. The judgment in the trial court was for the plaintiff.

It appears that plaintiff owned a farm of 219 acres in Boone county, and defendant a farm, about 20 miles away, said to contain 374 acres, in the Missouri river bottom in Howard county. They exchanged farms by defendant paying to plaintiff as a difference in value the sum of $3,000. It is claimed by plaintiff that defendant fraudulently, with intent to deceive, represented to him, while the negotiations were in progress, as a matter of fact, that there were as many as 374 acres in the farm; that he relied upon such representations, and made the exchange; but that shortly afterwards he became suspicious that there were not that many, and had the tract surveyed, which disclosed there were but 321 acres, and this action is for damages in the value of that shortage of 53 acres. Under a well-recognized rule we must put the evidence for defendant aside, and judge the case from a consideration of plaintiff's alone, except where such evidence or the conceded facts may be in defendant's favor. Montgomery v. Railroad, 181 Mo. 477, 79 S. W. 930.

There is no pretense that there was any specific warranty that there were 374 acres, but it is claimed by plaintiff that defendant fraudulently and specifically stated and represented, with intent to deceive, that there were that number, when he either knew that was not true, or affirmed it as a fact, not knowing whether it was true or false, and that plaintiff relied upon such representations, and was thereby induced to make the exchange. On the other hand, defendant insists that all statements as to acreage by him were not made as a fact, but were mere matters of opinion.

The record shows that plaintiff saw the farm twice before the exchange, one time with defendant, who showed him over the tract; that they went about it from place to place, and spoke of and considered distances from one point to another; that they viewed the lowest and highest parts (that is, what is called first and second bottom), and estimated the acreage of each, as well as the productive power of each; and that they looked at and estimated the acreage of some "accretions" (that is, lands formed and gained by the wash of the river from other places). It was principally during this visit to the farm that defendant is charged to have given the fraudulent assurances that there were 374 acres. The case of Judd v. Walker, 215 Mo. 312, 114 S. W. 979 (affirming the opinion of Judge Nortoni of the St. Louis Court of Appeals in 114 Mo. App. 128, 89 S. W. 558, and questioning the opinion of this court in Mires v. Summerville, 85 Mo. App. 183), is the latest statement of the rule which should govern in cases where false representations are shown to have induced a sale, and the right of the vendee to rely upon such representations. If that case applies to the matters shown in the testimony for plaintiff, together with the conceded facts then we must hold that a case was made for him; for the fact that he was upon the land will not preclude him from saying he was deceived, since in a large body of land, affirmed to contain 374 acres, one cannot very well observe with the eye that it is short in so small a proportionate part as 53 acres.

But if the evidence discloses that the representations are only affirmations of an opinion, the case is radically different, for every one knows that an opinion is an estimate, and not an affirmation of a specific fact. Hence it is held in Dunn v. White, 63 Mo. 181, and other cases before and since, that liability cannot be based on matter of opinion, or general affirmation. In People's Nat. Bank v. Central Trust Co., 179 Mo. 649, 664-666, 78 S. W. 618, we find a case, while not like this, that is yet strongly illustrative of the rule in question. It was, as here, for fraud and deceit. The defendant represented that certain notes then being sold were secured by mortgage on 200 head of cattle, when in fact, while there was a mortgage, there were no cattle. It was held that the facts did not justify the plaintiff in believing that the defendant was undertaking, of his own knowledge, to verify the truth of the assurance, and hence no action would lie.

Now, applying plaintiff's own testimony and that of his son, we find that no reasonable ground existed for him to believe that defendant was representing as a fact that there were 374 acres in the farm, or that he did any more than give his estimate. It must be borne in mind that the land "laid in a curve" on the Missouri river so that the river ran around two sides of it. Every one knows, and the evidence in plaintiff's behalf discloses, that the number of acres in a given tract, thus situated, is unstable, and that what you have at one time may shortly be more or less. In fact, more than 100 acres of this land was conceded to be accretion.

Plaintiff's son was with him when the land was looked over, and we find that his first statement of defendant's representations are on the indefinite order, viz. "374 acres, or more;" that they found the land was in a curve of the river; that defendant showed them different parts, and that he said there were 65 acres in the wheat stubble by drill measure; that he pointed out another piece, and said, "In this piece there is 100 acres;" and "that up there in that piece of corn there are 50 acres, and down here around the barn and the other there will be about 10 acres"; and he said, "There is a 124 acres down there in the accretion."

So the plaintiff's own testimony continues in the same indefiniteness. The first he heard of the farm was through his own agent, who spoke to him of the "Cooper farm — 374 acres or more." He testified that defendant "took me and my son over the farm. He showed us a strip of timber on the north side, and said there was about 50 acres in it"; that "we then went down to the river, till we came to a place that you call an accretion, where the old river bank used to run. We got out and walked over there." They then looked at different houses on the place, and discussed distances from one point to another. "I said to him, `How far is it up to the north line?' and he says 200 acres laid between him and Mrs. Moore, must have been three-quarters of a mile, and then the White land came in about a quarter or a half a quarter." Then "I asked him how far it was across? He said, ...