36 Mo. App. 216 | Mo. Ct. App. | 1889
delivered the opinion of the court.
This was a suit on a promissory note given for a part of the purchase money of a tract of land. The answer admits the making of the note but sets up, by way of counter-claim, that the plaintiff fraudulently' misrepresented the boundaries of the land, so as to make it appear to take in a dwelling house, kitchen, and barn of the value of three hundred dollars, a certain fourteen acres of improved land of the value of two hundred dollars, and a certain piece of unimproved land of the value of one hundred dollars, — and asks a judgment against the plaintiff for damages in the sum of five hundred dollars. The plaintiff, by a reply, put in issue the affirmative matter thus set up in the answer.
The case was tried by the court sitting as a jury, and there was a finding and judgment for the defendant, from which the plaintiff prosecutes this appeal. The entire evidence related to the counter-claim, and, in so far as it supported the counter-claim, it tended to show that when the plaintiff and the defendant were bargaining for the sale of the. land, the plaintiff took the defendant to the land to show it to him, and there requested one Goforth, who resided in the house which was supposed to be on the land, and who had sold the land to the -plaintiff, to point out the land and its boundaries to the defendant; that Goforth did not profess to know where the lines were, but told the defendant where he supposed they ran; that the lines, as thus pointed out by Goforth to the defendant, made the tract of land include the house. The evidence tends to show that the land had not been surveyed at that time, and while Goforth did not tell the defendant of that fact, the
The errors assigned relate to the instructions or declarations of law which the court gave and refused. All of those asked by the plaintiff, five in number, were refused. Pour of them embodied .declarations to the effect that, in order for the defendant to be entitled to the relief prayed for in his answer, the evidence of the false and fraudulent misrepresentations must be “clear and convincing,” or “of the clearest character,” or making the fact of such representations “appear in the clearest manner.” These expressions are found in the first, second, third and fifth instructions, which were requested by the plaintiff and refused. It is frequently said in cases in equity, where relief is sought on the ground of fraudulent misrepresentations, that in order to justify equitable interposition, the court should be
We know of no principle which takes such a case out of the ordinary rule, that the facts on which the right of action or defense is predicated must be made out by a preponderance of the evidence and to the reasonable satisfaction of the jury. This was the probative force required to establish such allegations, as embodied in the instructions which were given in Wannell v. Kem, 57 Mo. 478, 485, and which met with the approval of the supreme court. As this counter-claim was in the nature of a declaration in an action at law founded upon deceit, and as tlie declarations of law given by the court must be tested by the same rules which would apply if the case were tried before a jury, we are unable to see that the court erred in refusing these four instructions.
But the same can not, we think, be said of the following instruction, numbered four, tendered by the plaintiff and refused:
“That if defendant had opportunity to have ascertained by reasonable diligence the correct boundaries of said real estate, he cannot succeed in this case, unless it appears from the evidence that plaintiff used some fraud, artifice, trick, or deceit to throw him off his guard and prevent his making proper inquiries and research as to the boundaries.”
These principles, it would appear, were aptly embodied in the above instruction. Both parties went upon the land. It had never been surveyed. The boundaries were not accurately known to either party. The means of accurate information were equally as open to the defendant as to the plaintiff; and it seems a reasonable conclusion, that, unless the plaintiff use some fraud, artifice, trick, or deceit to throw the defendant off his guard and prevent his making proper inquiries and researches as to the boundaries, he can not sustain this counter-claim.
As the instruction which the court gave of its own motion is also challenged, we think it proper to say that we see no error in it, provided it had been given with the qualification of, or in connection with, the last instruction above set out. As it appears from the fact of refusing this instruction that the court ignored and
The judgment is reversed and the cause remanded.