Anderson v. McPike

86 Mo. 293 | Mo. | 1885

Sherwood, J.

— Plaintiffs brought this action for damages based upon false representations charged to have been made to them by defendant, in effecting a sale to them of a farm in Ralls county, in February, 1873. The false representations are alleged to consist in statements made by the defendant as to the quality, title, and value of the land thus sold to them, as well as toModisett’s financial condition, whereby plaintiffs were induced to accept the farm and to surrender notes held by them against Modisett, whom the petition alleged was perfectly' solvent, had abundant property to pay all of his debts, and that plaintiffs could easily have compelled payment of said notes, but, being ignorant of the facts, were deceived by defendant, on whose fraudulent representations they relied. The petition thus contained three elements as bases of recovery: (1) False representations as to Modisett’s financial condition. (2) As to the value of the land. (3) As to the title.

I. On the first point, evidence touching fraudulent representations made by defendant as to Modisett’s financial condition was admissible if they were the means-of inducing plaintiffs to surrender their notes to defendant. If it was true that such representations were made and induced that result, then an action on the case-would lie, as there would be fraud, coupled with injury, and it would resemble, in this respect, cases where fraudulent acts or representations were successful in defeating a judgment or attachment lien, such lien being regarded as a vested or specific right, an injury thereto capable of being definitely ascertained and estimated. Cases, therefore, cited by counsel respecting fraudulent acts or representations as to a debtor’s financial condition, in consequence of which creditors failed to secure' a lien on his property and thereby lost their debts, are obviously inapplicable in the present case ; for here, there was a loss, if it be true that such misrepresentations were in truth and in fact made and resulted in the way stated. But it is by no-means clear that any such - false representations were made by defendant. An examination of the testimony induces the belief that there was no evidence on this point. If this be true, then that element was eliminated from the case and should not have been submitted to* the jury, and even if there were testimony on the point mentioned it was improper to leave the jury to conjecture as to what were “ material false statements.”

II. (a) Relative to false representations as to the title of the land, if the testimony of Poster is to be credited, and it stands undisputed on the record, Means had no title whatever in the land sold by defendant to plaintiffs, as Means, according to Poster’s testimony, in 1869* or 1870, surrendered to him the title bond executed to-him by Modisett and instructed Poster to give the bond to Modisett. This act of Means obliterated whatever equitable right he theretofore may have had in the-premises, for it cannot be doubted from the fact of its surrender that such an effect was intended. (5) And, the admissions of Means while in possession of the land, he having since deceased, were competent evidence, event as against strangers. 1 Wharton on Evidence, section 237, and case cited; 2 Id., section 1156. And it is said uot to be necessary as a condition of admissibility that the declarant should be dead, though the better view is-to restrict the admissibility of living predecessors in suits against strangers to cases where such declarations are part of the res gestee. 1 G-reenl. Evid., sec. 109. On this account, the testimony of Poster as to what Means swore, respecting his title at that time, he being then in possession of the land, was admissible, (c) Furthermore, it is difficult to see how there could be any failure-of title to the land in any event, as plaintiffs, according to their own testimony, were purchasers, for value,, without notice of the title bond, and, therefore, if this was fche case, would take a clear title against any right growing out of the title bond, since that was not of record. Fox v. Hall, 74 Mo. 315.

III. (a) Concerning the fraudulent representations said to have been made by defendant respecting the-quality or value of the laud, the testimony of Anderson seems to exonerate him from this charge. And the testimony appears to greatly preponderate in favor of the view that defendant did not make any fraudulent representations respecting the value of the land, but that he expressly referred plaintiffs, for information on the subject, to Biggs, and that Anderson went to Biggs and obtained information all about the land, and afterwards communicated that information to Schooler. It is held that, even if fraudulent representations are made respecting a given subject, and the party to whom the representations are made does not rely upon such representations, but seeks from other quarters to verify the statements made, he cannot afterwards claim that a deceit has been practiced upon him by the party originally making the misrepresentations. Bigelow on Fraud, 87, :and cases cited. (5) And if the party who had the means of information at hand, make assertion that he relied on the statement of another, the burden is on him to establish the statement, (c) For the law presumes that persons who can see for themselves, if they will but look, do look and find out out for themselves, and if they assert the contrary of this, they cannot prevail without overcoming the presumption thus arising. Id. 70. (d) And -‘fraud is not established, and redress or relief will not in general be granted, without proof that the party who made the false representation knew at the time it was false. *The law raises no presumption of knowledge from the mere fact that the representation is false.” Id. 57. (e) It is equally clear that “a mere false assertion of value, where no warranty is intended, is no ground of relief to a purchaser, because the assertion is a matter of opinion which does not imply knowledge, and in which men may •differ; mere expression of judgment or opinion does not .amount to warranty. Every person reposes at his peril in the opinion of others, when he has equal opportunity -f o form and exercise his own judgment — simplex commendatio non obligate 2 Kent, 486. If defendant did, in-fact, refer the plaintiffs to Biggs for information as to the-value of the farm, and that information was obtained by them from Biggs, defendant’s statements of the value of the farm, if made in that connection, should only be regarded as expressions of opinion.

IV. The third instruction asked by the defendant should have been given. If Smith was an innocent mortgagee, and Means, who was in possession of the land at the time, informed him that he was only a tenant of Modisett’s, and on faith of this statement he loaned his money, he was entitled to protection as an innocent. purchaser, and if defendant bought the land for himself,, as he testifies, and not as the agent of Modisett, then, clearly, McPike must stand in Smith’s shoes, or else it might happen that Smith would have an unmarketable title on his hands. 2 Story Eq. Jur., sec. 1503 a.

V. Prima facie the original answer of defendant was competent evidence against defendant. Weeks on Attorneys, sec". 185; Dowzelot v. Rawlings, 58 Mo, 75. But the testimony of Poster, that defendant did not employ him in the cause, was sufficient to overthrow the presumption arising from his name being signed to the answer as the attorney of defendant, and to exclude the answer from consideration by the jury.

VI. The deed made by Modisett to Means in 1876, was clearly inadmissible and had no bearing or relevancy' to the case, no more than would have been a written statement by Modisett to Means, that the latter was the real owner of the land. The rights of parties litigant can. not be prejudiced in this way.

VII. It stands admitted in evidence that defendant, at the time of contracting, refused to put plaintiffs in possession of the farm sold them. By accepting the conveyance on such terms, it was no part of defendant’s duty to put Means out of possession and to put plaintiffs in possession. Besides, Modisett proffered to put plaintiffs in possession, and the proffer was declined. Plaintiffs should certainly not have both the money and the land, and their recovery in the lower court amounted to about the amount of the notes.

The judgment should be reversed and the cause remanded.

All concur.