156 Mo. App. 205 | Mo. Ct. App. | 1911
This suit originated in the probate court of Vernon county, Missouri. On appeal to the circuit court where it was tried anew the plaintiff recovered nominal damages in the sum of one dollar, from which judgment he appealed.
The deceased did not have a fee simple title to two quarter sections of the land he conveyed to plaintiff. It is agreed that one Jason Campbell brought suit against plaintiff, who had taken possession of the land conveyed to him, to ascertain and determine-the title to one^of said quarter sections, under the provisions of section 650, Revised Statutes 1899; that deceased was duly notified of the pendency of the suit; and that he employed counsel and defended the same; that a decree was rendered declaring that Campbell was the owner of the land subject to the life estate of his mother Qynthia; that afterwards G-. L. McCully and others brought a similar suit against plaintiff for another quarter section, which also resulted in a decree to the effect that they were the owners of the title to said quarter section subject to the life estate of one John F. McCully, and that deceased had notice of and was requested to defend the action.
In August, 1909, plaintiff bought the interest of Jason Campbell in the land for $2500, at which date Cynthia Campbell, the life tenant, was sixty-five years of age. On April 9, 1910, plaintiff bought the title of McCully and others in the land, paying therefor $4500, at which time the life tenant, John F. McCully, was seventy years of age. It is admitted that at the time of said purchase the lands were of the value of fifty dollars an acre. The value of the life estate of Cynthia Campbell was computed to be equal to the sum of
A witness by the name of Webb testified that he brought about the trade between the parties; that the Texas land was priced at ten dollars per acre; that deceased went to Texas to look at the land there and proposed to take it at ten dollars per acre.if plaintiff would take the Missouri land at forty-two dollars per acre; that plaintiff so agreed and paid deceased the difference in cash between the two prices at the agreed valuation, which was the said amount of $1364, whereupon the parties exchanged deeds.
The plaintiff objected to the evidence offered by the administrator of deceased, and admitted by the court, that the Texas land was worth less than ten dollars per acre.
The plaintiff asked the court to instruct the jury to find for plaintiff in the sum of $7000, which was refused. The court in effect instructed the jury that if they found from the testimony, that the value of said life estate in the land was equal or greater than the amount paid by plaintiff to deceased for said land, they should find a verdict in favor of the plaintiff for nominal damages only, but if the consideration paid by plaintiff to deceased should exceed said life estate in the land then they should find for plaintiff for the difference with six per cent interest from the time plaintiff was sued by the holders of the adverse title.
The errors assigned are three. First, the action of the court in admitting testimony as to the value of the Texas land.
Second, in refusing plaintiffs peremptory instruction.
As a matter of fact, there is but one question, that is as to the measure of the plaintiff’s damages. In an action for the breach of a covenant of warranty to land the measure of damages is the purchase money paid and six per cent interest from the time of yielding possession. [Lambert v. Estes, 99 Mo. 604; Coleman v. Lucksinger, 224 Mo. 1.] And where the consideration for the deed is an exchange of land the value of the land received by the covenantor for his deed is the measure of damages. [Miller v. McCoy, 50 Mo. 214.] Wé do not think there can be any disagreement as to the rule as stated. But it is a question whether it is applicable to the case as presented on the part of the plaintiff. In the absence of any proof as to agreement or representation of value the rule would be absolute.
It was entirely competent for the defendant to show the actual value of the land conveyed by him to plaintiff, it not being admitted that there was any representation or agreement as to such value. Therefore, there was no error in the admission of such testimony.
But in view of the fact that there was evidence of the agreed value of the land of plaintiff in Texas which he exchanged for that of defendant; it was error to instruct the jury that if they found that the value of said life estate was equal to or greater than the amount paid by plaintiff for said land, then they should find a verdict in favor of plaintiff for nominal damages only, “but if the consideration paid by Howard to Zweigart should exceed the value of said life estate” in the land in controversy, then their finding should be in favor of the plaintiff “for the difference.”
The instruction took from the jury the issue presented by the evidence that the Texas land was by express agreement fixed at ten dollars per acre. On this issue if the jury should find for plaintiff he would be entitled to the difference between said fixed value and the amount of the diminution in value of the land of de
It is well settled law that in the exchange of land where the value is agreed upon by the parties the value thus fixed becomes the measure of damages in an action on the covenants of warranty. It is only in cases where the amount of the consideration for the exchange is not expressly agreed upon that the actual value of the property is adopted as the basis for the measure of damages. [Evans v. Fulton, 134 Mo. 653, and authorities cited; Dickson v. Desire’s Adm’r, 23 Mo. 1. c. 166-167.] Appellant insists that his peremptory instruction should have been given as his evidence as to agreed value was not contradicted by other testimony.
As a general rule in such cases such instruction should be given. [Bank v. Hainline, 67 Mo. App. 483.] But if such instruction is refused “the appellate court will assume that the trial court saw something in the manner of the witnesses to impair their testimony and will not interfere with the verdict. On the other hand, if apparently unquestioned evidence is followed by a peremptory instruction, the appellate court will assume there was nothing to impair the force of the testimony and will refuse to interfere.” [Ibid.] But where the evidence is plain, undoubted and uncontradicted, the peremptory instruction should be given. [Powell v. Price, 111 Mo. App. 320.] If all the evidence on the question is one way a peremptory instruction should be given. [Furber v. Bolt & Nut Co., 185 Mo. 301.] “Where the evidence is uncontradicted that there has been a breach of the contract, and the witnesses are not impeached,” a peremptory instruction should have been given. [May v. Crawford, 150 Mo. 504.]
We do not understand that there is any conflict between the case of Bank v. Hainline, supra, and those following. There is more than one way to impeach the credibility of a witness. His manner of testifying and Ms conduct while so doing, may be such as to impair
Reversed and remanded.