Totman v. Christopher

• Decision Date: 30 January 1922
• Docket Number: No. 14253.,14253.
• Parties: TOTMAN v. CHRISTOPHER et al.
• Court: Missouri Court of Appeals

237 S.W. 822

TOTMAN v. CHRISTOPHER et al.

No. 14253.

Kansas City Court of Appeals. Missouri.

January 30, 1922.

Rehearing Denied February 20, 1922.

Appeal from Circuit Court, Jackson County; James H. Austin, Judge.

"Not to be officially published."

Action by Mary D. Totman against B. C. Christopher and others. Upon trial anew on appeal from justice court, demurrer to plaintiff's evidence was sustained, and plaintiff took a nonsuit, with leave to move to set it aside. Motion to set aside judgment of nonsuit overruled, and plaintiff appeals. Affirmed.

Prince, Hamilton, Harris & Beery, of Kansas City, for appellant.

Brown Harris and Hogsett & Boyle, all of Kansas City, for respondents.

TRIMBLE, P. J.

This case orignated in a justice court, wherein plaintiff sued defendants for $50 actual and $450 punitive damages, alleging that the defendant Signet Oil & Gas Company is a corporation organized and existing according to law for the ostensible purpose of producing and selling natural oil and gas; that the defendants, on or about March 22, 1918, "intentionally, maliciously, and unlawfully obtained $50 from the plaintiff and gave her in return therefor a share of stock in the said Signet Oil & Gas Company," which we interpret to mean that they sold her a share of said stock for $50. Whether the defendants did or not, the evidence shows that one Anthony sold plaintiff a share of stock in said company for $50 and that plaintiff purchased and paid for the same.

The basis of the suit is fraudulent representations, it being specifically charged in the petition that—

"Defendants represented to plaintiff that said Signet Oil & Gas Company had property at the value of $100,000, and that said share of stock was of the actual value of $50; that said representations were false, that defendants knew they were false, and plaintiff believed them to be true and was thereby misled and induced to pay defendants $50 as aforesaid; that said $50 so obtained from plaintiff by defendants has been appropriated by defendants for their own use and benefit; that the sale of said stock was worthless, and defendants knew it was worthless."

It being a suit in a justice court, no answer was filed.

Upon a trial anew in the circuit court, to which the case was appealed, the trial court, at the close of plaintiff's evidence, sustained a demurrer thereto, and was about to direct a verdict for defendants when plaintiff took a nonsuit with leave to move to set the same aside. This motion was filed but overruled, and from this plaintiff has appealed.

The first matter to be disposed of is the scope of the pleadings. Plaintiff sought to prove that the sale of the share of stock to her was a violation of the Blue Sky Law (article 7, c. 108, R. S. 1919). But the trial court refused to permit her to do so. The petition, however, is not based upon any such ground. It rests upon two specific fraudulent representations: (1) That the Signet Oil & Gas Company had property of the value of $100,000. (2) That said share of stock was actually worth $50. Nothing else is alleged as a basis of fraud or of recovery. The allegation that "the sale of said stock was illegal and without authority of law" is a mere legal conclusion, which, in the connection with which it is used, refers only to what has been alleged. In other words, it would be taken to mean that the sale of the stock was illegal, without authority of law, and worthless, because of the misrepresentations made as to the property the corporation had and as to the value of the stock. Besides, the mere legal conclusion of the pleader is not the statement of an issuable fact. Plymell v. Meadows, 170 Mo. App. 37, 156 S. W. 82; Boothe v. Cheek, 253 Mo. 119, 161 S. W. 791; Watson, etc., Window Co. v. Weiss, etc., Co., 181 Mo. App. 318, 324, 168 S. W. 905. It is well settled, also, that even though there is great latitude allowed in the pleadings in a justice court, yet if a pleader elects to state his case upon specific grounds, he will be confined to those alleged and not allowed to recover upon any other. Lyman v. Dale, 262 Mo. 353, 171 S. W. 352; Landsbaum v. Janet Realty Co. (Mo. App.) 226 S. W. 604, 608. The trial court did not err, therefore, in holding that the Blue Sky Law was not in the case; and the plaintiff's right to go to the jury for a possible recovery will be determined herein with reference to the proof in regard to the two specific charges alleged.

With regard to the second alleged misrepresentation, namely, that the share of stock was worth $50, the record conclusively shows that no such representation was made, that plaintiff was not deceived, and did not rely upon any such representation as to value. Before elucidating this, however, it may be well to observe that, usually, representations of value are matters of opinion, not of fact, and when they are in the former, they are not actionable. Especially is this true with regard to mining or oil ventures. Fisher v. Seitz, 172 Mo. App. 162, 169, 170, 157 S. W. 883; Morgan, etc., Coal Co. v. Halderman, 254 Mo. 596, 646, 163 S. W. 828; Viles v. Viles (Mo. App.) 190 S. W. 41, 42; Brown v. South Joplin, etc., Mining Co., 194 Mo. 681, 700, 92 S. W. 699. Plaintiff, according to her own testimony, knew the stock she was buying was stock in an oil venture; that no oil had yet been struck, and boring therefor would not commence until June, 1918, whereas she bought her stock in March of that year. She admits that "I thought I would try my luck," "just took my chances"; that her sister-in-law was present when Anthony was talking to her about the stock, and her sister-in-law said to her, "You had just as well be in this, we have all taken a share," and plaintiff replied, "Well, I guess I will take a shot at it." She admitted that Anthony "didn't say they had a sure thing, but he said, `We have got awful good prospects"' She further admitted that what led her to think it was a sure thing was that "others had struck oil all around them." There is no question but that such was the case, as the oil lease the company had was on land in Butler county, Kan., within a mile and a half of the Towanda field and in two miles or less of the Trapshooters' lease. She further admitted that she remained perfectly satisfied with her purchase up to June 3, 1919, when the second well, drilled to a depth of over 2,600 feet, proved to be a "dry hole."

What is the evidence as to the other alleged misrepresentation, namely, that the company had $100,000 worth of property? Unquestionably, plaintiff knew what that consisted of, for she says Anthony read over to her the articles of incorporation and they show that the...