Hess v. D. T. Draffen & Co.

99 Mo. App. 580 | Mo. Ct. App. | 1903

BROADDTJS, J.

The question presented is, whether the court was justified in instructing the jury, upon plaintiff’s evidence, to return a verdict for defendants? In order to sustain the action it is admitted that plaintiff must show that the alleged representations, if made, were false; that they were knowingly made with intent to deceive; that the plaintiff had the right to and did rely upon them; and that he was dam■aged thereby.

If the books were such as the evidence showed them to be they did not contain a complete abstract of the lands situate in Cooper county. An abstract is defined to be: “ That which comprises or concentrates in itself the essential qualities of a larger thing, or of several things; an abridgment, compendium, epitome, or synopsis.” They were, at most, only an index to the books of the recorder of deeds for the county, showing the different conveyances .of land and the hooks.and .pages where they.'might be found. They did not contain an abridgment.of the contents of the different.im .struments including the acknowledgments of the.manner in which they were executed, nor their dates. At best, they were only partial abstracts — most certainly not complete. As the defendants had. used them they •must have known, what they were and it therefore must necessarily follqw that defendants knew that the said representations were untrue. And the evidence tended to show that they did not cost the sum of six thousand dollars, but much less.

It is true that representations in regard to the value •of property are held mere matters of opinion which do not imply knowledge. Cornwall v. McFarland, 150 Mo. 377; Brownlow v. Wollard, 61 Mo. App. 124. But, “kq the promotion of business enterprises there is a mutual .trust between the parties, and a false representation .as to the actual cost of, material going into such joint enterprise constitutes a breach of faith and is actionable.” Garrett v. Wannfried, 67 Mo. App. 437.

But it is claimed that defendants did not sell plaintiff said stock; that he subscribed to the articles of association and agreed to take said ten shares; that the 'abstract books were subsequently sold to the corpora-tion; and if a fraud was perpetrated in procuring such ’purchase the cause of action accrued to the corporation and not to the plaintiff. In such cases the corporation can only recover. Exeter v. Sawyer, 146 Mo. 302; 1 Morawetz on Corp. secs. 291, 292, 546. The facts here make a different kind of case. The defendants were the owners of said .books, which were to be the capital stock of the corporation, and the representations are not charged to have been made to defraud such corporation, but made to induce plaintiff to subscribe to its stock, whereby he was induced to part with his money. The complaint is not that the corporation, but that the plaintiff as an individual,- was defrauded 'by the individual acts of the defendant partnership.

Under the authorities, the plaintiff, who was a stranger to the business, had the right to rely upon the representations of the defendants who were the promoters of the enterprise. Cottrill v. Krum, 100 Mo. l. c. 405; Pomeroy v. Benton, 57 Mo. 531; Wannell v. Kem, 57 Mo. 478. The circumstances tended to show that plaintiff was wholly unacquainted with the business; that he relied upon the representations of the defendants as to the sufficiency of the abstracts and their cost; and that he was damaged thereby. "We are therefore clearly of the opinion that plaintiff made out a case entitling him to go to the jury. For the reasons given the cause is reversed and remanded.

All concur.