Western Cattle Brokerage Co. v. Gates

• Decision Date: 01 July 1905
• Citation: 190 Mo. 391,89 S.W. 382
• Parties: WESTERN CATTLE BROKERAGE CO. v. GATES.
• Court: Missouri Supreme Court

89 S.W. 382

190 Mo. 391.

WESTERN CATTLE BROKERAGE CO. v. GATES.

Supreme Court of Missouri, Division No. 1.

July 1, 1905.

1. APPEAL—REVIEW—PROCEEDINGS IN TRIAL COURT AFTER APPEAL.

Judgments and orders of the trial court, entered in a cause after an appeal, are not before the Supreme Court, where no appeal has been taken from such judgments and orders, though the party objecting thereto saved exceptions by a separate bill of exceptions.

2. SAME — REFUSAL OF INSTRUCTIONS — ABSENCE OF EXCEPTION.

The ruling of the trial court in refusing instructions cannot be reviewed on appeal, where the bill of exceptions contains no exception to such action of the court.

3. FRAUD—IGNORANCE OF TRUTH OF REPRESENTATIONS —EFFECT.

One who makes representations which he does not know to be true, and conscious of the fact that he has no knowledge, to another whom he knows has no knowledge as to the truth and falsity of the representations, is guilty of fraud.

Appeal from Circuit Court, Jackson County; W. B. Teasdale, Judge.

Action by the Western Cattle Brokerage Company against C. W. Gates. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Rehearing denied.

Ward & Hadley, for appellant. R. E. Ball and Johnson & Lucas, for respondent.

MARSHALL, J.

This is an action of fraud and deceit. The plaintiff claims $50,000 damages on account of alleged false and fraudulent representations of the defendant, whereby the plaintiff was induced to purchase from the defendant five promissory notes, executed by C. J. Buckingham and Samuel Gatch, to the order of E. J. Buckingham, and indorsed by him, aggregating $47,976; the plaintiff paying the defendant therefor the sum of $45,794.55. There was a verdict and judgment for the defendant, and the plaintiff appealed.

The abstract of the record sets out in full the petition, and then alleges that the answer was a general denial. The abstract then recites that there was a trial on the merits, a verdict for the defendant, a motion for a new trial filed and overruled, and an appeal allowed to this court, time granted to the plaintiff to file a bill of exceptions, and that the bill was filed within the time allowed. The abstract of the record then sets out the bill of exceptions in full. No evidence or abstract or digest or statement of the evidence is contained in the bill of exceptions; the only reference to the facts adduced upon the trial being in the following language: "The plaintiff introduced evidence tending to support the allegations of its petition. The defendant introduced evidence tending to support the allegations of his answer." The bill of exceptions then recites that the plaintiff "prayed the court to instruct the jury as follows." The instructions asked by the plaintiff and given or refused are then set out. The instructions asked for the defendant and given or refused by the court are then set out. The bill of exceptions contains no exception to the action of the court in refusing instructions asked by the plaintiff. It contains an exception by the plaintiff to the giving of the instructions asked by the defendant and given by the court. The bill of exceptions then recites: "There was evidence introduced in the case by the respective parties to prove the facts upon which the instructions given by the court were based." The verdict of the jury, the motion for new trial, the overruling of the same, the giving of time for the filing of the bill of exceptions, and the filing of the bill of exceptions within the time given, are then set out. This constitutes the whole bill of exceptions and the whole abstract of the record. Heretofore the defendant moved the court to dismiss the appeal, because no bill of exceptions was filed within the proper time, and for other reasons stated in the motion. The court in banc overruled the motion to dismiss the appeal on the 4th of March, 1903. Thereafter as appears by an additional abstract of the record filed by the respondent, certain steps were taken by the plaintiff to procure a nunc pro tunc entry in the circuit court correcting the record so as to show that the time for filing the bill of exceptions was extended by the court, and also showing that the case was tried in division No. 5 of the circuit court of Jackson county, presided over by Hon. W. B. Teasdale, the then judge of that division of the court; that thereafter Judge Teasdale became the judge of division No. 3 of the court, and Hon. A. F. Evans became judge of division No. 5; that the motion for a new trial was overruled by Judge Teasdale while the judge of division No. 5; and that the bill of exceptions was approved and signed by Judge Teasdale while the regular judge of division No. 3 of said court, and was filed in division No. 5 after Judge Teasdale had ceased to be the judge thereof. The defendant's main contention now is that the circuit court erred in entering the nunc pro nunc order, and that Judge Teasdale had no power to settle the bill of exceptions after he ceased to be the judge of division No. 5, and had no power as judge of division No. 3 to order a bill of exceptions filed in division No. 5. The defendant saved exceptions by a separate bill of exceptions to the subsequent proceedings in the case, but did not appeal from the order and judgment complained of, and as they took place subsequent to the appeal taken by the plaintiff those matters are not properly now before the court for adjudication and will not be further considered in the case.

The case presented, therefore, is the petition of the plaintiff, the answer of the defendant, which was a general denial, the statement that the plaintiff introduced evidence tending to prove the allegations of the petition and the defendant introduced evidence tending to prove the allegations of the answer, and that the respective parties introduced evidence tending to prove the facts upon which the instructions given by the court were based, and the instructions given and refused by the court. The case is therefore presented in compliance with rule 6 of this court (73 S. W. v), which is as follows: "For the purpose of reviewing the action of the trial court, in giving and refusing instructions, it shall not be necessary to set out the evidence in the bill of exceptions; but it shall be sufficient to state that there was evidence tending to prove the particular fact or facts. If the parties disagree as to what fact or facts the evidence tends to prove, then the evidence of the witnesses may be stated in a narrative form, avoiding repetition and omitting all immaterial matter."

The facts stated in the petition may be summarized as follows: The plaintiff is a domestic corporation, engaged in the business of broker, dealing in cattle paper. The defendant and one Vail were and are partners under the firm name of Vail & Gates. On the 5th of June, 1899, the defendant had in his possession five promissory notes made by Buckingham and Gatch, to the order of E. J. Buckingham, and by him indorsed, aggregating $47,976, which purported to be secured by chattel mortgages on 1,732 head of cattle, and which cattle were in various pastures in the state of Kansas. The defendant on said date induced the plaintiff to purchase said notes for the sum of $45,794.55. The petition charges that the defendant falsely and fraudulently represented to the plaintiff that the makers of said notes, secured as aforesaid, owned 1,732 head of cattle covered by said mortgages; that all of said cattle were what is known as "Panhandle cattle," and had been shipped from the Panhandle of Texas in 1898, would weigh from 750 to 850 pounds each, and that they were worth $35 per head; and that the makers of said notes had $10,000 of their own money invested therein, and that the makers of said notes owned the 1,732 head of cattle covered by said mortgages. The petition then alleges that all the said representations and statements were false and fraudulent, and known to the defendant to be such at the time he made them; that the makers of said notes owned only 1,612 head of cattle; that they were not Panhandle cattle; that they were not shipped from the Panhandle of Texas in 1898, nor at any other time, and never were in the Panhandle of Texas; that said cattle did not weigh from 750 to 850 pounds each, and would not exceed 450 pounds each; that they were not worth $35 per head, and were worth not exceeding $10 per head; that the makers of said notes did not have $10,000 of their own money invested in said cattle, or any considerable sum of their own money so invested, but that the makers and indorser of said notes were then, and now are, insolvent; that the character of the cattle as represented by the defendant to the plaintiff was of much higher grade than the cattle owned by the makers of said notes; that said notes were not paid at maturity; that plaintiff had to pay $3,500 pasturage for said cattle in order to get possession of them; that plaintiff got possession of 1,612 head of cattle, and after the commencement of this suit sold the same under said mortgages and became the purchaser thereof for the sum of $22,729.75, and that after deducting the costs of foreclosure and the amount paid for pasturage there remained the net sum of $18,982.79 applicable to the payment of said notes; that after becoming said purchaser, the plaintiff sold said cattle and realized therefrom the net sum of $29,305.06. The petition then concludes with a prayer for $50,000 damages. As above stated, the answer is a general denial.

Under this state of the pleadings, and under the statements in the bill of exceptions that the plaintiff introduced evidence tending to support the allegations of the petition, that the defendant introduced evidence to support the allegations of the answer, and that the respective parties introduced evidence tending to prove the facts upon which the instructions given by the court were based, the plaintiff claims that the court...