Weston v. American Nat. Assur. Co., 21299.

• Decision Date: 02 December 1930
• Docket Number: No. 21299.,21299.
• Citation: 32 S.W.2d 789
• Parties: WESTON v. AMERICAN NAT. ASSUR. CO.
• Court: Missouri Court of Appeals

32 S.W.2d 789

WESTON v. AMERICAN NAT. ASSUR. CO.

No. 21299.

St. Louis Court of Appeals. Missouri.

December 2, 1930.

Rehearing Denied December 16, 1930.

Appeal from Cape Girardeau Court of Common Pleas; Oscar A. Knehans, Judge.

"Not to be officially published."

Action by Frank Weston against the American National Assurance Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Jones, Hocker, Sullivan & Angert, of St. Louis, for appellant.

R. Kip Briney, of Bloomfield, and Hardesty & Limbaugh, of Cape Girardeau, for respondent.

BECKER, J.

Plaintiff in his action for deceit recovered judgment for damages in the sum of $1,200, and defendant appeals.

Plaintiff's petition alleges that he was induced to purchase a farm of 108 acres in Stoddard county by false and fraudulent representations of the agents and servants of the defendant that the farm purchased was well drained, with good, fertile, black loam soil, fitted and adapted to the growing of alfalfa, and that crops of alfalfa had been grown upon said land; that these representations were false, and known to be false, at the time they were made by the agent of defendant; that plaintiff relied upon said statements, believing them to be true, and, so believing and relying, purchased said farm for the sum of $6,000, and that he was damaged thereby in the sum of $20,050.

The answer was a general denial and a plea that plaintiff purchased said property in reliance upon his own investigation and examination of said property, and not in reliance upon any representations of the defendant concerning the character of said property or its propensities for the growing of alfalfa thereon.

Since error is assigned here that the trial court erred in overruling defendant's demurrer offered at the close of the case, we detail sufficient of the testimony to support our ruling that there is no merit in this contention.

There is testimony which, if believed, tends to show that in the year 1927 plaintiff was living in Stonefort, Ill.; that he read an advertisement in a St. Louis paper to the effect that one Frank X. Jones had land for sale at half value; plaintiff wrote Jones, and, with reference to the farm which plaintiff ultimately purchased from the defendant, Jones, in a letter to plaintiff, inclosed a circular which described the farm in question as "good bottom land—black sandy loam * * * previous crops: corn, wheat, cotton, alfalfa." Plaintiff thereupon made a trip to St. Louis for a personal interview. He found that Jones was the vice president of the defendant corporation, and was told that the company had a number of farms for sale which were located in Stoddard county, Mo. Plaintiff explained to Jones that he was in the market for some good alfalfa land; that he had a crippled arm, and wanted land that could be easily worked, and particularly alfalfa land; that with reference to the farm Jones explained that the soil was black, sandy loam, and was adapted to the growing of alfalfa; that plaintiff stated that he did not want a farm unless it was alfalfa land.

Jones introduced plaintiff to Charles E. Salisbury, whom, he stated, was their representative for the handling of their land in Stoddard county, and, in conformity with arrangements made, plaintiff, in the latter part of December, went to Stoddard county, and Salisbury showed him a number of farms which the company had for sale, and among them the farm which plaintiff eventually purchased. The weather was cold and the ground frozen. With reference to the character of the soil, Salisbury told plaintiff that it was black, sandy loam, and stated: "I have seen clover and alfalfa grow this high on this farm (indicating up to his waist). I will guarantee it to raise as much as any other farm." Plaintiff was also informed that the farm was a dry farm and had been properly drained.

Plaintiff testified that he made no inspection of the soil of the farm, nor did he inquire of any one else as to the nature of the soil, nor as to whether this particular farm would raise alfalfa, or had grown alfalfa; that he believed and relied on what Jones and Salisbury had told him. On their way to view the farm, Salisbury told plaintiff that a Mr. Henson was farming the place, and that "Mr. Henson is a fine old gentleman and he wants to hold the place and I don't want to hurt his feelings and I don't want you to talk to him about the place"; that, when they were looking over the farm, he endeavored to talk to Henson, but Salisbury called him away, again repeating to him that he did not want him to talk to Henson about purchasing the place.

According to plaintiff, after he bought and moved on the farm, he found that the soil was "white, very hard—kind of a gumbo— sticky and run together"; that he had to plant corn three or four times before he got a stand. Plaintiff made some tests as to growing alfalfa on the farm, and found it would not grow. He testified that, if the farm had been capable of growing alfalfa, it would have been worth $100 to $150 per acre. Plaintiff gathered some soil from various parts of the farm, and had N. D. Wrinkle, who testified he was the county farm adviser for Stoddard county, analyze it. Wrinkle testified that, in his opinion, alfalfa could not successfully be grown therein.

Plaintiff's own testimony was corroborated by that of his wife to the effect that Salisbury had represented that the farm was good alfalfa land, and that the land would grow as good alfalfa there as any other farm, and that previous crops of alfalfa had been raised on the farm, "said he had seen it grow waist high—was there when he made the loan on that place."

Bill Snider, a witness for plaintiff, testified that he had known this farm all of his life, and that it had formerly belonged to his grandfather. As to the character of the soil, he testified that "part of it has got fine rock in it, hardpan. The soil is not very deep under it; hardpan under it." He stated that the farm was not well drained, and that "right smart of it" remains under water a good portion of the year. He stated that about half of the farm is "pretty run down" and "the rest of it is pretty wet." He further testified that the reasonable market value of the particular farm at the date when plaintiff purchased it was about $25 per acre, and that, had the land been of a "black, sandy loam, fertile soil, and well drained, fit and adapted for growing alfalfa," it would have been worth about $100 per acre.

Bud Pace testified he owned a farm less than a mile distant from the farm in question, and lived there about 40 years. He stated $20 or $25 per acre would be a good price for the land. He further stated the soil was thin, and termed it gray gumbo; that there were buckshot on the farm, with hardpan underneath the soil.

There was testimony that the mere looking at the soil of a farm would not disclose whether it was of a character which would raise alfalfa or not, and further that, when the ground was frozen, it was difficult to determine the character of the soil.

Defendant's witness, Harve Henson, who owned the land prior to plaintiff, testified that, when Salisbury brought plaintiff to view the farm "he nudged me in the back and said, `don't tell him anything; let him be his own judge,'" and that he did not give plaintiff any information. He testified that the reasonable market value of the farm at that time was about $20 per acre. He further testified that he never knew of any alfalfa having been raised on the farm. He had lived on it four years and made no endeavor to raise alfalfa. Asked as to whether the farm was properly drained, he testified that he "couldn't...