67 Mo. App. 245 | Mo. Ct. App. | 1896
On the thirty-first day of May, 1892, the plaintiff contracted with the defendant for the purchase of certain real estate in the city of St. Louis. The purchase was fully consummated by deed dated June 4, 1892. These facts appear from the petition. Eor a cause of action the petition further alleges “that in the negotiations between plaintiff and defendant as to said land, and in effecting said sale, defendant represented to plaintiff that all improvements on and for said property, and all sewerage connected therewith, or constructed in order to be used in connection with said land, were fully paid for, and that the land as it then
On the trial of the cause the defendant objected to the introduction of any evidence, on the ground that the plaintiff’s petition failed to state a cause of action. The circuit court sustained the objection, and the plaintiff submitted to a nonsuit. The plaintiff’s motion to set aside the nonsuit having been overruled, he has brought the case here by appeal.
The gist of the alleged cause of action is that during the negotiations for the purchase of the land the defendant represented that the sewer was paid for, and that the premises were not subject to any inchoate liens on that or other accounts; that this representation was
The plaintiff conceded at the trial that the allegations of the petition were not sufficient to make out a case of deceit, and that no such cause of action was intended to be stated. Under this admission the question is whether, in the absence of actual fraud, a purchaser of land', after conveyance, can recover for the misrepresentation of any matter pertaining to the title to which the covenants in his deed do not extend. The question, we think, must be answered in the negative. The deed represents the final agreement of the parties, and all oral negotiations or representations were merged in it. The rights and liabilities of the parties are limited by its terms. It is clear, therefore, that there could be no recovery on the facts stated, for the alleged warranty is not alleged to be embraced in the covenants of the deed, and to hold the defendant for its breach would be adding to or changing the contract, which can not be done. State ex rel. v. Hoshaw, 98 Mo. 358; Tracy v. Union Iron Works, 104 Mo. 193; Matheny v. Stewart, 108 Mo. 73; Allen v. Richardson, 13 Ch. Div. 524; Manson v. Thacker, 7 Ch. Div. 620.
The cases which are relied on by appellant are not in point. Kilpatrick v. Downing, 58 Mo. 32; Hartzell v. Crumb, 90 Mo. 629, and Terte v. Maynard, 48 Mo. App. 463, merely state the rule for admeasuring damages, where executory contracts for the sale of land have been violated. In Smithers v. Bircher, 2 Mo. App. 499, the defendant had sold to the plaintiff notes which he falsely represented were secured by a first mortgage on certain lands. The notes were assigned “without recourse.” It was held that, if this affirmation by the defendant was intended as a warranty and
We think it needs no argument to show that these cases are in nowise analogous to the one in hand, and can not possibly have any bearing on the question in judgment here. We will therefore affirm the judgment of the circuit court.