125 Mo. App. 406 | Mo. Ct. App. | 1907
This is an action for fraud and deceit. At the close of plaintiff’s testimony the defendant asked the court to declare as a matter of law that under the proof she was not entitled to recover. The court refused defendant’s request and submitted the case to the jury under certain instructions given at her instance. The jury returned a verdict for the plaintiff in the sum of nine hundred and fifty dollars, upon which judgment was rendered and defendant appealed.
The evidence showed that plaintiff was a woman
About the first of January, 1906, plaintiff was at defendant’s office to pay him some money she owed him, at which time she noticed in his window advertisements of farm lands for sale, whereupon she asked' him if he had a small piece of land that he could trade for her house and lots. Defendant told her he could suit her and drew up a deed which she executed whereby she conveyed to him her said property. Shortly thereafter he told her that he had forty acres of land situated somewhere in South Missouri, which belonged to a man by the name of Martin. Later he told her that he had investigated the Martin land and advised her not to trade for it and that when he found anything to suit her he would come to her house. In February, after having had several conferences with plaintiff, he conveyed to a man by the name of Scovern a house and lot he owned in St. Catherine, the consideration for which was seventy-six acres of land in Dade county. Scovern, the owner, executed a deed for the latter but the name of the grantee therein was left blank. After receiving the deed he went to the plaintiff’s home and told her that a railroad man at Carrollton had seventy-six acres of land, five miles from Greenfield and about thirty-five miles from Joplin, which he thought would suit her, or, in his own language, “I hit you now,” and Scovern, the Carrollton man, would trade his land for that of plaintiff. In a short time thereafter defendant informed plaintiff that he had seen Scovern a few days previously and that he would meet
The evidence shows that defendant was acting as agent for plaintiff and that she was trusting him to act for her in the transaction. She testified as follows: “I says, ‘Mr. Wheeler, now you know I depend on you as a friend and adviser,’ and I says, ‘You know the situation we are in. We are poor and we both are old and not able to do a hard day’s work.’ ‘Now,’ I says, ‘You will do me right?’ He says, ‘Yes, I will never forget what my father said to me on his dying bed, whatever I done to always do right.’ ” Defendant in representing to plaintiff the value of the Dade county land said to her that he had never seen it, but that Scovern said it was worth seventeen hundred dollars. It was shown that he had never at any time in his life seen or had any conversation with Scovern.
The evidence shows that defendant’s conduct was of the most fraudulent character. He knew all the time that plaintiff was trusting him implicitly to secure a trade for her home in Marceline for a small tract of farm land where she said she could keep a cow and her chickens. For the purpose of defrauding her his first step was to secure from her a conveyance to him of her home. He then had her in Ms power. On the pretext that the Martin land was not suitable, he persuaded plaintiff to wait, that he thought that he could find some trade to suit her. The opportunity was not long wanting. He procured a title from Scovern to the Dade county land in exchange for his own property in St.
Defendant insists that he was not the plaintiff’s agent, but that they were dealing with each other as principals, at arm’s length. It seems to us that when he undertook to exchange plaintiff’s property for his own he was acting in a double capacity, as agent for the plaintiff on the one hand and for himself on the other. Had his intentions been honest he would have acted with the greatest circumspection. He would have used the precaution to ascertain the condition and value of the Dade county land and its advantages in comparison with that of the plaintiff and made a full disclosure to her of its.suitableness and value so that she might know what she was receiving. Defendant’s telling plaintiff that Scovern said the Dade county land was worth seventeen hundred dollars was an unqualified falsehood. He had never at any time seen Scovern. And it is legitimate to infer from defendant’s conduct that he was well informed of the quality and value of the land. He did not testify and introduced no evidence on his own behalf. If anything was lacking his silence under the circumstances was enough to condemn him. His pretense to the plaintiff that he. would see Scovern and close the deal for the land in Dade county when he had in his possession at the time a deed for it from the owner is characteristic of defendant’s conduct through the entire transaction. His acts amounted to an unqualified fraud. By his machinations he succeeded in robbing plaintiff of her little home under the guise of friendship. He shamelessly abused her confidence and seeks to justify
But defendant insists otherwise and contends that he is sustained by the decision in Hume v. Brelsford, 51 Mo. App. 651. In that case as well as this, defendant informed plaintiff that he knew nothing of his own knowledge of the land he was about to convey to plaintiff. In that case, the parties were dealing on equal terms. Brelsford was trading his property for that of Hume. The court held that there was only a bare suspicion that Brelsford was acquainted with the property he conveyed to Hume and that suspicion alone would not justify the court in declaring that the defendant had committed a fraud, and applied the doctrine of caveat emptor. But, as we have seen, the cases are wholly unlike in the one particular noted.
The defendant insists that the court in the admission of the evidence of witnesses Montgomery, Russell and Slawson, was error. The two former testified as to the value of the Dade county land and the latter as to the property in Marceline. The two first witnesses, after giving a description of the land were permitted to testify as to its value without first having stated that they were acquainted with the market value of such lands. Slawson was permitted to testify as to the value of the property in Marceline without first having qualified as to his knowledge of values. The evidence of these witnesses should have been excluded upon the objections of the defendant. But, as there was other competent evidence as to the value of the two properties, and as there was no evidence of a contradictory character, the error was harmless.
