Traber v. Hicks

• Decision Date: 26 November 1895
• Citation: 32 S.W. 1145,131 Mo. 180
• Parties: Traber v. Hicks et al., Appellants
• Court: Missouri Supreme Court

32 S.W. 1145

131 Mo. 180

Traber v. Hicks et al., Appellants

Supreme Court of Missouri, First Division

November 26, 1895

Appeal from Jackson Circuit Court. -- Hon. E. L. Scarritt, Judge.

Reversed and remanded.

Kinley & Kinley for appellants.

(1) The testimony of E. T. Rhodus as contained in his deposition showed that his evidence was delivered from written memoranda, furnished him by other parties, and also furnished by the plaintiff, which the witness refused to allow the attorneys for defendants to inspect, or to permit the memoranda to be inspected or copied by the notary or permit the memoranda or copies of same to be attached to his deposition. Neither law nor right justifies such a method of preparing evidence by parties interested and the penalty of rejecting the entire deposition should have been imposed upon plaintiff for using such methods. Smith v. Griffith, 3 Hill (N. Y.), 333; Kissam v. Forest, 25 Wendell, 651; People v. Cole, 43 N.Y. 512; Hewlitt v. Woods, 67 N.Y. 394; Chase v Kenniston, 76 Me. 209; Nicholson v. Desobry, 14 La. Ann. 81; Shelton v. Paul, 27 S.W. 172; Coleman v. Colgate, 69 Tex. 88. (2) The letter press copy of the letter from the defendants to Wm. S. Earl was improperly admitted: First, because no effort was made to either supply, procure, or account for the original letter and, second, because the contents of such letter were irrelevant, immaterial, and in nowise tending to throw any light on the issues involved and were calculated to mislead the jury. Foot v. Bentley, 44 N.Y. 166; Delaney v. Errickson, 10 Neb. 492; Ebon v. Zempleman, 47 Tex. 503. The letter having been written after the alleged fraud was claimed to have been committed, was erroneously admitted. (3) A principal can not retain the benefits in a transaction, accruing to him by the misconduct of his agent and repudiate the remainder of the transaction. Reber, as plaintiff's agent, worked up a sale of plaintiff's ground to Rhodus, and in so doing had a complete understanding with Rhodus, Otis, and Evans as to how the first payment was to be made to plaintiff, as well as helping to thus arrange it between the said parties, by which this plaintiff got $ 4,000, which he ought not to retain and at the same time repudiate the acts of his agent, by which he secured to his principal the said $ 4,000. Hickman v Green, 123 Mo. 165; Bank v. Lovitt, 114 Mo. 519; Hedrick v. Beeler, 110 Mo. 91; Meier v. Blume, 80 Mo. 180; Hayward v. Ins. Co., 52 Mo. 181; Slater v. Irwin, 38 Iowa 261; 1 Parsons, Cont. [6 Ed.] 75, 76; Story, Agency [Bennett's Ed.], sec. 140. (4) To maintain an action for damages arising from fraudulent misrepresentations, or, more accurately speaking, for fraud and deceit, the false representations upon which the action is based, or on which the party relied, must be of and concerning an existing thing in fact, or one represented to exist, and the action can not be sustained on a promise to perform an act in the future. Wade v. Ringo, 122 Mo. 322; Hotel v. Tiernan, 8 Mo.App. 596; Bullock v. Wooldridge, 42 Mo.App. 356; Terry v. Ins. Co., 3 Mo.App. 595; Franklin v. Halle, 7 Mo.App. 241; Ordway v. Ins. Co., 35 Mo.App. 426; Ex Parte Fisher, 18 Wend. 608; Gallagher v. Brunel, 6 Cow. 351.

L. H. Waters, L. C. Slavens and G. A. Vandeveer for respondent.

(1) Plaintiff contends that the promise of Hicks & Foster was fraudulently made to him and that the contract between plaintiff and defendant was fraudulently procured by them, and that he has a right to pursue either remedy, and in exercising that right has brought his action for fraud and deceit, and in support of that right respectfully cites the court to the following authorities. Cooley on Torts [2 Ed.], pp. 175, 475, 484, 487; 1 Bigelow on Fraud, pp. 484, 487; Hilliard on Torts, 138; Moncrieff on Fraud and Misrepresentation (1891), 16, 17, 101-107, 172, 255, 352, 353. Edgington v. Fitzmaurice, 29 Ch. D. 459; Wilson v. Eggleston, 27 Mich. 257; Loring v. McKee, 13 Mich. 124; Dowd v. Tucker, 41 Conn. 197; Richardson v. Adams, 10 Yerg. 273; Thynn v. Thynn, 1 Vern. 296; Douthet v. Applegate, 33 Kan. 495. (2) The court did not err in allowing plaintiff to read the deposition of Rhodus. No motion was made to suppress it, nor were any objections made to its admission as a deposition. Robinson v. Railroad, 7 Allen, 393; Sheriff v. Queens Co., 5 Sanf. (N. Y.), 219; Feeter v. Heath, 11 Wend. 477; State v. Cheek, 13 Ired. 114. (3) The instructions taken together state the law of the whole case correctly. Barry v. Railroad, 98 Mo. 62.

OPINION

Macfarlane, J.

This action is for damages on account of alleged fraud and deceit. A trial resulted in a verdict and judgment for plaintiff and defendants appealed.

The petition charges in substance that plaintiff was the owner of a lot in Kansas City, one hundred by one hundred and fifty feet in extent; that prior to October 8, 1889, he had offered to sell the same to one Rhodus for the sum of $ 13,000, of which $ 4,000 was to be paid in cash; that Rhodus should have the right to borrow on each half, or fifty feet front, of the lot the sum of $ 11,000 and secure the same by first deeds of trust on the respective lots, and plaintiff should take a second deed of trust of $ 4,500 on each to secure the balance of the purchase price, and that the $ 11,000 to be borrowed on each lot should be applied to the erection of buildings thereon; that defendants being fully advised of this offer agreed with Rhodus to lend the money on the terms offered by plaintiff and agreed with plaintiff that they would, so far as possible, see that the money so to be loaned should be applied in the erection of the buildings according to the offer of plaintiff; that with these agreements plaintiff sold the lots to Rhodus who paid $ 4,000 cash, and executed and delivered to defendants first deeds of trust for $ 11,000 on each half of the lot and to plaintiff second deeds of trust for $ 4,500 each thereon; that prior to the consummation of this sale and the execution of these deeds said Rhodus and defendants entered into an agreement by which $ 3,000 of each deed of trust should be paid to Rhodus or his order on the completion of the foundation of said buildings, when the foundations would in fact cost less than $ 600 each; that Rhodus by an assignment of said contract as collateral obtained the money from one Otis with which to make plaintiff the cash payment of $ 4,000 on said sale; that upon completion of the foundations of said buildings defendants, upon the order of said Rhodus, paid Otis the sum of $ 6,000, well knowing that the foundation did not cost to exceed the sum of $ 600.

Plaintiff charges that the agreement between Rhodus and defendants was made and carried out with the fraudulent intent and purpose of making the cash payment on the purchase of the lots out of the money borrowed from defendants and secured by a first deed of trust on the lots. Plaintiff further charges that Rhodus failed to complete said buildings and is himself wholly insolvent; that defendants, for value and before maturity, assigned their notes and first deeds of trust to an innocent purchaser; that the property had been sold under the power contained in the deeds of trust and by reason of all which plaintiff had been defrauded out of his property to his damage in the sum of $ 12,000.

The answer was a general denial. The evidence tended to prove the allegations of the petition. The instructions given for plaintiff, which were quite lengthy, authorized a recovery upon proof of the facts charged in the petition.

At the request of defendant the court instructed the jury that "there can be no recovery unless the jury find and believe from the evidence that Hicks and Foster on or about October 2, 1889, entered into a fraudulent conspiracy with Rhodus to enable Rhodus to apply $ 4,000 of the money borrowed by him of Hicks on the cash payment to be made by Rhodus to plaintiff instead of putting the same into the erection of the buildings."

The court also gave the following instruction asked by defendant: "The jury are instructed that if they find and believe from the evidence that Hicks and Foster paid the money provided for in the building loan, except the defendants' commission, over to Rhodus in good faith, expecting and having reason to believe that Rhodus had expended it or intended to expend it in paying for labor and material for the buildings, or paid it out on bills or claims for material that had gone into the buildings, or was represented to Hicks and Foster to have gone into the buildings, and that Hicks and Foster honestly believed had gone into the buildings, then your verdict should be for the defendants."

I. On the trial the deposition of Edward T. Rhodus was read in evidence by plaintiff. It appears that this deposition was taken in Chicago. During the cross-examination it was developed that witness on his direct examination had consulted certain written memoranda, which he said were prepared partly by himself and partly by someone else. This memoranda the witness refused to allow counsel for defendant to inspect and refused to allow the notary to attach to the deposition. For these reasons defendants objected to the reading of the direct examination of the witness. This objection was first made when plaintiff offered to read the deposition upon the trial. The objection was overruled and the ruling of the court in so doing is assigned as error. Counsel now insist that the entire deposition should have been excluded.

There is no doubt that a witness should be required to testify from his own knowledge and not from information obtained from others. He has the right to refresh his memory from written memoranda made at or near the time by himself, or which he knew, when made,...