Wakefield v. Moore

• Decision Date: 17 June 1916
• Docket Number: No. 1686.,1686.
• Citation: 186 S.W. 1148
• Parties: WAKEFIELD et al. v. MOORE.
• Court: Missouri Court of Appeals

186 S.W. 1148

WAKEFIELD et al. v. MOORE.

No. 1686.

Springfield Court of Appeals. Missouri.

June 17, 1916.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by Pearl Wakefield and others against J. N. Moore, administratrix of the estate of J. R. Dyer. Judgment for plaintiffs, and defendant appeals. Reversed, and cause remanded.

J. C. Hayden, of Ash Grove, and Hamlin, Collins & Hamlin, of Springfield, for appellant. Howard Ragsdale, of Ash Grove, and Geo. Pepperdine and Roscoe Patterson, both of Springfield, for respondents.

ROBERTSON, P. J.

Plaintiffs, in April, 1914, exchanged property in Springfield for a stock of goods (groceries and hardware) in Ash Grove, belonging to defendant. Plaintiff valued his property at $8,000 on which there was an incumbrance of $2,500 assumed by defendant. The property of defendant was valued at $7,000, and plaintiffs assumed and agreed to pay debts of the business amounting to $1,500. Claiming to have been defrauded by defendant in the transaction, they sued and obtained a verdict and judgment for $1,950, from which defendant has appealed.

Defendant represented, as the testimony tends to prove, that on the 1st of January, 1914, when he purchased the stock from one Turk, or a firm called Turk Bros., it invoiced $9,000 and would invoice $7,000 at that time and that defendant said when trading with plaintiff: "I will guarantee it will not miss that $300." The January invoice was $9,591.75 and included accounts amounting to $1,476.29, notes $688.89, cash $301.34, and commission $780. After defendant became the owner of the store he continued the business until he traded with plaintiffs and added to the stock in the meantime, besides the cash shown in the January invoice which was used to buy goods, $2,300. In addition to the stock of goods plaintiffs got two horses and a silo contract. Plaintiffs took charge of the store April 15, 1914, and conducted the business until the latter part of June of that year, getting their living therefrom. In June they claim they had a prospective purchaser and that they then learned the value of the stock had been misrepresented, whereupon an invoice was taken on June 23 and 24, 1914, "preparatory to bringing this suit," showing the total value of the stock to be $4,435.06, after deducting the amount added thereto by them, and adding the sales and the value of the horses and wagon. This invoice is said to be based on the cost mark of defendants on the goods. In this invoice no account was taken of the goods used by plaintiffs, and the fixtures were valued at $1,127.25 less than they were in the January invoice referred to by defendant. In the June invoice they were valued at $494.75, and the only testimony upon which any claim could be made that this discrepancy on the value of the fixtures was fraudulent is that of the clerk who testified as to their value in June, as follows:

"I think the reasonable value of those fixtures would have been about $700, or something like that. Those things all depend upon the different opinions of people."

Giving the plaintiffs the benefit of all doubts and conceding that defendant represented the value of the stock on April 15, 1914, to be within $300 of $7,000, the only proof we have that this is not true is the invoice of June showing a total of $4,435.06, improperly reduced on account of fixtures $1,127.25, and which if we add we have $5,562.31, a discrepancy between the so-called fraudulently represented or warranted value of $6,700 of only $1,137.69. Plaintiffs must sustain their recovery on this comparison, if at all, solely on the theory that they accounted for all goods they used. But suppose we go to the representation about the invoice of January and say that was grossly and fraudulently misrepresented. That was taken over four months before the trade and there is no pretense that it represented what the stock was on the day of the trade or that the plaintiffs had a right to accept it as such. That invoice is said to be defective because it includes goods to the amount of about $800 that were sold in one transaction by defendant after the invoice was taken, $301.34 cash which defendant says went into the purchase of goods thereafter, commission, notes, and accounts amounting to over $2,000.

The plaintiffs rely upon the opinion of this court in the case of Dyer v....