26 Mo. App. 665 | Mo. Ct. App. | 1887
delivered the opinion of the court.
The plaintiff recovered a verdict and judgment against both the defendants, from which they prosecute this appeal. The action is brought to recover damages for a breach of the following contract:
*666 “SPRINGFIELD, December 26, 1884.
“Memorandum of agreement between J. D. Ober and Alfred Anstee.
“The said Anstee enters into the employ of said Ober for the year 1885, for the consideration of six hundred dollars, to assist him on his farm, located on Gasconade river, in Laclede county — attending to the duties of a creamery, building houses, and any reasonable work required by said Ober. Witness our hands this day and date above written.
“ Signed in duplicate.
“J. D. Ober,
“by R. EL Ober,
‘ ‘ Alfred Awstee. ’ ’
It is perceived that this instrument purports to be a contract between J. D. Ober and the plaintiff, and that R. El. Ober is not a party to it. The petition alleges that the plaintiff “ entered into a contract with the defendants, by which he was to work for them on their farm, in the county of Laclede, for the year 1885, which will more fully appear by the said contract, which is herewith filed and made a part of this petition,” etc. The contract thus exhibited and made a part of the petition is the contract above quoted. The plaintiff testified that this was the only contract under which he rendered services, and there was no evidence that there was any other. Nevertheless, against the objections of R. EL Ober, the plaintiff was allowed to give evidence tending to show that R. EL Ober was the real party in interest, with whom the contract was, in fact, made ; and the case was submitted to the jury upon the theory that if J. D. Ober made the contract with the plaintiff, and under the contract rendered services for both defendants, and if both defendants were jointly interested and partners in the farm, and if the contract was made for their joint benefit, the 'plaintiff was entitled to recover against both of them for a breach of it.
II. The separate answer of J. D. Ober set up that the plaintiff represented himself to be a practical, skillful, and experienced farmer and stock raiser; an ex- - perienced and skillful dairyman and butter-maker, and well and fully informed in all the modern methods of managing the creamery business and the business of butter-making; and, also, that he was a skillful carpenter and joiner. It, also, alleged that the defendant was about to commence farming and stock raising, on a large .scale, and was to carry on the creamery and butter making business, and, in order to do this, would need creamery houses, and other buildings; that, relying upon the plaintiff’s representations, the defendant, J. D. Obér, agreed to employ him; that the representations so made by the plaintiff were false and fraudulent; that the plaintiff knew nothing about farming or stock raising, or the butter-making business, was no carpenter and joiner, and that he, in every respect, failed to fulfill his representations. The answer then sets up that the plaintiff worked and acted, in a secret way, against the interests of this defendant; would do no work himself,
Before proceeding to the important question which arises upon evidence tendered under this answer, it is necessary to determine the character of the answer itself. It is an unskillful pleading. Matters of defence and matters of counter-claim are mingled together in one paragraph; and, on another trial, counsel for the defendants would do well to consider the propriety of amending their answer, so as to state these matters in separate paragraphs. If the plaintiff procured the contract from the defendants through fraud, the contract was void, at their election, upon discovering the fraud, and they were at liberty to discharge him, at any time, for that reason. But, it is well settled that, in order to avoid a contract for fraudulent representations, the representations must have been knowingly false, or else they must have been made recklessly by the party, without knowing whether they were true or false.
In this case, the subject-matter of the representations was largely matter of opinion and belief. The plaintiff might honestly believe and represent that he was a good dairyman, farmer, or carpenter, while the fact may not have been so. In order to make such a representation fraudulent, it must have been false to the knowledge of the party making it. The pleader must aver this, and he does not do it by merely using the epithets, false and fraudulent. This answer, therefore, is not regarded as pleading, in sufficient terms, that the contract was void, by reason of the plaintiff ’ s fraudulent representations.
If, however, the plaintiff represented himself, in good faith, to be a good farmer, dairyman, or carpenter, and the fact turned out to be otherwise, the misrepresentations would justify the defendants in terminating
In this state of the pleadings, the defendants offered to prove, by several witnesses, as recited in the bill of exceptions, “that, by reason of the plaintiff’s failure to perform his duty, and do the work he represented himself competent and able to do, and of his inefficiency and want of knowledge to do the work that he was employed to do, and represented himself as able to do, when he was engaged to work and carry on the farm, that the defendants were damaged in the sum of fifteen hundred dollars.” This tender of evidence proceeded to specify that “said damages consist of the failure to raise the crop of corn that could and would have been raised on the farm, if the same had been planted in proper season and properly cultivated and of “the loss to the defendants by reason of the failure of the plaintiff to complete the creamery houses, and commence the making of butter within the time he had agreed to do, and his [failure] to save and cure the crop of hay raised on said farm, and his failure to use and work the men furnished him by the defendant, in a proper manner.” This evidence was objected to by the plaintiff, “ for the reason that the defendant’s answer does not specially allege in what particular manner he was damaged, and because it was irrelevant, and inadmissible, under the issues presented.” “The court sustained the objection, and the defendant excepted.”
It will be observed that, according to the above recitals, this evidence was tendered by the defendants. If this was so, it amounted to a concession, by R. H. Ober, that he was a party to the contract, since, if he had not been a party to the contract, he could not have been damaged, as thus stated. But, when the plaintiff objects to it, he places his objections on the ground that the defendant's answer, which must be assumed to refer
III. The defendants requested, ’ and the court refused, the following instruction:
“The court instructs the jury that if they believe, from all the facts and circumstances in proof in this case, that the plaintiff represented himself to be a practical, skillful, and experienced farmer, and that the defendant, relying on and believing such representations to be true, entered into a contract with the plaintiff, and engaged his services for one year, to carry on, conduct, and manage the Bowman farm mentioned in the evidence, and you further find that such representations were not true, and that the plaintiff was not competent to carry ■on, conduct, and manage the said farm, then the plaintiff can not recover in this action, notwithstanding the jury may believe that the services rendered were of some value, and you will return a verdict for the defendant.”
IY. The testimony in regard to the plaintiff being paid oiit of the proceeds of the butter-making business was properly excluded, because, while the answer avers that he was to be so paid, it fails to further aver that there were no such proceeds.