Estes v. Reynolds

• Decision Date: 30 April 1882
• Citation: 75 Mo. 563
• Parties: ESTES, Appellant, v. REYNOLDS.
• Court: Missouri Supreme Court

75 Mo. 563

ESTES, Appellant,

v.REYNOLDS.

Supreme Court of Missouri.

April Term, 1882.

Appeal from Audrain Circuit Court.--HON. G. PORTER, Judge.

AFFIRMED.

This was an action for damages for fraud and deceit alleged by plaintiff to have been practiced upon him by defendant in palming off upon him certain township bonds instead of county bonds. The facts as testified to by plaintiff were, in substance, as follows: One Thurmond owed plaintiff $6,500, for which plaintiff held a deed of trust on Thurmond's farm. Thurmond sold his farm to defendant, who agreed to pay the debt due plaintiff. Defendant offered to pay with Pike county bonds, which plaintiff at first refused, but finally consented to receive. On the 5th of October, 1875, the bonds were delivered, and plaintiff, without examining them, put them into an envelope, sealed the envelope and handed it to his sister to keep. Plaintiff did not see the bonds again until June, 1876, when he examined them and discovered that a portion only of them were bonds of Pike county, the rest being bonds of Cuivre township, Pike county, not obligations of the county. This was shortly after the Supreme Court of the United States, in the case of Harshman v. Bates Co., had decided all township bonds to be void. Plaintiff did not notify defendant of his discovery, because, as he testified, he did not consider it his duty to notify defendant that he had perpetrated a fraud. Neither did he at the time offer to return the bonds, because his attorney advised him that this was not necessary. In February, 1877, he did offer to return the township bonds, but not the county bonds. He had sold some of the latter, before he discovered that the bonds were not all county bonds.

Defendant had judgment and plaintiff appealed.

Fagg & Biggs for appellant.

When a party sells one thing and delivers an entirely different one, there is no breach of warranty. It is a noncompliance with the terms of the bargain--a non-supply of the thing bought. If the vendee has paid the purchase money, he may recover it back, not by way of damages, but as money paid without consideration. He may maintain the action without returning or offering to return, because the title to the property has never vested in the vendee, and the vendor has a right to reclaim it any time. But when the identical thing purchased has been delivered, but it is not of the quality or value represented, this presents a different case. The vendee, upon discovering the fraud, would have two remedies: Either to stand by the bargain and sue for damages, or immediately return the property and sue for the purchase money. 2 Smith's Lead. Cas. 27; 2 Schouler Per. Prop., 319, 325, 353, 354, 606; Young v. Cole, 3 Bing. (N. C.) 724; Benj. Sales, 448; Story Sales, 367; Mullen v. Old Colony R. Co., 127 Mass. 86; s. c., 34 Am. Rep. 349; 9 C. L. J. 56; Gompertz v. Bartlett, 2 E. & B. 849; Gurney v. Womersley, 4 E. & B. 133; Rosebrook v. Runals, 32 Wis. 415; Loeschigh v. Blun, 1 Daly 49; Fenton v. Perkins, 3 Mo. 23, 144. There was no necessity for a return of the township bonds, because the Supreme Court of the State had held that the law under which they were issued was unconstitutional. Therefore, the bonds were void and worthless. Barr v. Baker, 9 Mo. 840; Murphy v. Gay, 37 Mo. 536; 2 Schouler Per. Prop., 611; Paul v. Kenosha, 22 Wis. 266; Poulton v. Lattimore, 9 B. & C. 259; Perley v. Balch, 23 Pick. 282; Dill v. O'Ferrell, 45 Ind. 268; Love v. Oldham, 22 Ind. 51; Garland v. Spencer, 46 Me. 528; Christy v. Cummins, 3 McL. 386.

Smith & Robinson for respondent.

SHERWOOD, C. J.

It is fatal to plaintiff's case, that on discovering the alleged fraud and deceit upon which he bases his action, he did not promptly...