Woodin v. Leach

• Decision Date: 31 December 1914
• Docket Number: No. 1290.,1290.
• Citation: 172 S.W. 62
• Parties: WOODIN v. LEACH.
• Court: Missouri Court of Appeals

172 S.W. 62

WOODIN v. LEACH.

No. 1290.

Springfield Court of Appeals. Missouri.

December 31, 1914.

1. EVIDENCE (§ 258) — DECLARATIONS BY AGENT — PROOF OF AGENCY.

Declarations made by an alleged agent before there is testimony tending to prove the relation are inadmissible for that purpose.

2. LOGS AND LOGGING (§ 3) — SALE OF TIMBER — FRAUD.

That an owner of timber sold it for $850, when it was of the value of only $250, does not of itself prove fraud.

3. PRINCIPAL AND AGENT (§ 173) — RATIFICATION OF FRAUD — SALE OF TIMBER.

Evidence held insufficient to show that an owner of timber accepted the benefits of the contract of sale of the timber after knowledge of fraud of a third person in misrepresenting the value of the timber who was not proven to be the owner's agent, so as to ratify the fraud, especially where, after an examination of the timber, the seller paid more on the contract than he afterwards claimed the timber was worth.

4. CONTRACTS (§ 346) — FAILURE OF CONSIDERATION — NECESSITY OF PLEADING.

Under Rev. St. 1909, § 1974, failure of consideration cannot be shown where no such issue is tendered by the answer.

Appeal from Circuit Court, Butler County; J. P. Foard, Judge.

Action by J. F. Woodin against W. A. Leach. From a judgment for plaintiff, defendant appeals. Affirmed.

H. H. Freer and David W. Hill, both of Poplar Bluff, for appellant. F. G. Taylor, of Corning, Ark., and E. R. Lentz, of Poplar Bluff, for respondent.

ROBERTSON, P. J.

Under date of June 16, 1911, plaintiff and defendant entered into a written contract wherein defendant agreed to pay the plaintiff $800 for "all of the white oak, red oak, ash, and hickory timber" on 1½ sections of land in Phillips county, Ark., except the timber inside of fields and fenced portions of said land. Three hundred dollars of the purchase price was to be paid when the agreement was signed and the balance as the defendant removed the timber, and it was stated that all of said balance was to be paid within 90 days from the date of the contract. Further along in the contract it was stated that defendant should have 12 months in which to remove the timber from the land, but no point is made on that here. The contract was signed, the defendant paid $300, and on August 6, 1911, he paid $200 more. This action is brought to recover the balance of the purchase price. The trial resulted in a directed verdict for the plaintiff for $300, with interest, and the defendant has appealed. The defendant filed his unverified answer to plaintiff's petition, alleging that he was induced to enter into the contract by false and fraudulent representations made to him by plaintiff's agent as to the amount and character of the timber, and prayed judgment against the plaintiff for the cancellation of said contract and judgment for $250 on account of the alleged fraud.

The plaintiff was, at the time the contract was entered into, a resident of said county in Arkansas, and the defendant was engaged in business in Poplar Bluff, this state, under the name of the Leach Lumber Company. Plaintiff testified that for some time prior to the date of the contract he was frequently approached by one Noland, then living near the land on which this timber was located, who proposed to purchase it; that he (plaintiff) finally agreed to sell the timber to Noland on the terms stated in the contract, and that the contract was made out in Noland's name, and at Noland's request was sent to the Leach Lumber Company at Poplar Bluff; and that it was returned to the plaintiff with `Noland's name scratched out and signed in the name of Leach Lumber Company, by W. A. Leach, president. The timber was removed by the defendant. Shortly after defendant signed the contract he had the timber examined by his inspector, who testified at the trial that it was not worth to exceed $250. The defendant testified that Noland proposed several times to sell him this timber, and that all he (defendant) knew about it before signing the contract he learned from Noland, and bases his counterclaim on the alleged false and fraudulent representations made to him by Noland as plaintiff's agent. Plaintiff testified that he paid Noland no commission, nor otherwise compensated him for making the sale. The defendant testified that Noland did not represent him, was not his agent, was not on his pay roll, and that he was not...