51 Mo. App. 651 | Mo. Ct. App. | 1892
This is an action for damages for deceit. A trial before a jury resulted in a verdict and
In order to a proper disposition of the appeal, it seems necessary to set out the pleadings. The petition states that, in the year 1891, the plaintiff traded' and •delivered to the defendant a stock of groceries, then owned by the plaintiff and situated in the town of Bowling Green, Missouri, and being of the value of $1,509, for certain real estate (describing it), situated in the town of Beloit, in Lyon county, Iowa; that, in the negotiations resulting in the exchange, the defendant falsely, fraudulently, and with the purpose and design of misleading the plaintiff, represented that said lots were situated in a town containing five hundred inhabitants on the Chicago, Milwaukee & St. Paul railroad near the postoffice, and two or two and a half blocks from the depot; and that there was a good farming country all around said town of Beloit, and that it was well settled up; and that said town, in which said property was located, contained good waterpower, grist mills, bridges and other modern improvements and advantages, and that there were located on said lots two frame storerooms, side by side, having been built seven or eight years, with good glass fronts, good counters and shelves, and in good repair, except a little needed repair on gutter between the roofs; and that said property was worth and could be sold for the sum of $2,000; and that the rental value of said property was $25 per month, or more; and that said buildings were at that time rented to reliable tenants at the sum of $25 per month, which defendant claimed to be receiving. The petition further states that the defendant further falsely represented to the plaintiff that the defendant would only collect the rent from the tenants occupying said property until the first day of January, 1891, and that the plaintiff could, therefore, collect said
The answer denies each and every allegation of the petition not hereinafter admitted to be true; and then proceeds to state that it is true that the defendant traded some property in Beloit, Iowa, to the plaintiff for a grocery store in the city of Bowling' Green, in Missouri, and executed his warranty deed for the same; but he denies that he made any false, fraudulent or deceitful representations in regard to the title or the rental of said property.
The plaintiff’s evidence in regard to the representations made by the defendant, which induced the plaintiff to make the trade, was substantially as follows: “We had some informal conversation about the matter, when defendant presented me with the following written documents, and stated to me that they contained a true statement of the facts concerning his Iowa property which he proposed to trade to me, to-wit: A United States postal card having the following written thereon:
“ ‘Dear Sir: — Can help you all O. K. I wrote Mr. Betts about renting the property. Could sell it for $2,000 on time. Needs a little repairing on the gutter between the roofs. Yours,
“ ‘D. J. Carpenter.’ ”
.This postal was dated at Beloit, Iowa, December 26, 1890, and was addressed to the defendant at Bowling
‘ ‘Description of buildings, two storerooms, side by side, framed together, built seven or eight years ago, frame good, glass front, good counters, shelves, in a so-called, five-hundred-inhabitant town, on the Chicagjp, Milwaukee & St. Paul railroad, near post-office, two or two and one-half blocks from depot. Good farming country all around, and well settled up. Size rooms twenty-two by seventy, on two twenty-five by one hundred and sixty-foot lots. Good waterpower, grist mill, excellent waterpower advantages; also bridge across stream, this seven or eight miles either way. I think I have given all the points. Eented at $25 p-er month. I was offered more after I rented. Lease has five or six months to run.
“C. N. Eoss.”
The plaintiff further testified that, relying on the statements of the defendant that these writings were correct and true, he made the trade with the defendant; that, a few hours after he made the trade, he found out through Mr. Bayse that there was something wrong about the Iowa property. He then went to the defendant and tried to get him to let the proceeds of sales of goods be put in a bank, or be held by Eobert Spears, until he could find out what the facts in relation to the matter were; but the defendant refused to do either. He then went to Iowa some time in April, 1891, and found that all of the representations made by defendant were false. Defendant had no title to the property. It was a little town containing not more than one hundred and fifty inhabitants. The property had very little or no value. The plaintiff also testified that, on the morning of his first talk with the defendant, he called J. D. Frier as a witness to the trade; that Mr.
On cross-examination the plaintiff, among other things, admitted that he had never seen the property, and did not know of his own knowledge what condition it was in. He did not go to Beloit, though he went to the county seat to examine the records. “When Brelsford gave me the postal and the paper, he said: ‘That is a description of the property so far as I know; that is all I know about it, as I have never seen the property. ’ He did not say whom he got them from.- He did not say the letter was a copy. He said the statements in the letter were true, so far as he knew. He said he knew nothing more about the property than what the letter or paper stated, and would make me a warranty deed to the property. The trade was made on the eighth day of January, 1891. The deed was passed, and I delivered possession of the stock of groceries to the defendant on the ninth. There was a written contract drawn up between us in relation to this trade on the eighth of January and signed by both of us.” Then the plaintiff admitted that the contract had been delivered to Mr. Spears, and that he had procured it from Mr. Spears and destroyed it, “because the trade was consummated;” but’he nevertheless kept the
Further on in his cross-examination the following colloquium took placó: “Q. I will ask you, Mr. Hume, if you did not come back on Saturday, and tell Mr. Brelsford that you were perfectly satisfied with the trade, and did not you show Mr. Brelsford in the abstract, or a note on the back of the abstract, where Mr. Carpenter had given an $8,000 bond for settling up the Carpenter estate, and Brelsford did not know, anything about this until you showed it to him, and you said that, if Carpenter was responsible, you were satisfied! A. I said, if Carpenter was responsible, I was satisfied. I do not know whether or not he is responsible. The title is the principal thing. If I have a good title, and the property is as represented, I am satisfied. I did not know whether the property is as represented or not, as I have never seen it. I examined the records, and found the property had been sold to pay the debts of old man Carpenter. I do not know whether Brelsford’s grantor bought it or not. I do not know the date of the sale of this property.”
Mr. J. D. Frier corroborated the statement of the-plaintiff that the plaintiff had delivered to him the postal card and paper mentioned in the plaintiff’s evidence as above recited, and that the witness had marked. them with the letter “J.” “Mr. Hume said: 11 have-traded for this property with the understanding that these representations are true. ’ Brelsford was present ; he made no reply, but my impression is he assented.”'
Mr. Walter Basye, on behalf of the plaintiff, testified that he was a notary public; that on the evening of January 8, 1891, the day the trade was made between the plaintiff and defendant, the defendant came to him and wanted him to go down to his farm,
The warranty deed executed by the defendant to the plaintiff, conveying to the plaintiff the Iowa property in pursuance of the contract, was offered in evidence, but was excluded by the court on the objection of the defendant, the plaintiff excepting. The record does not disclose the ground of the objection. The plaintiff offered in evidence the deposition of J. M. Parsons, an attorney-at-law, thirty-three years of age, who had practiced in Iowa for eleven years, and whose residence was at Rock Rapids, in Lyon county, Iowa. He testified at length concerning the laws of Iowa in regard to the liability of the land of a deceased person for his debts, and also in regard to the condition of the estate of James A. Carpenter, deceased, from whom the defendant appears to have derived his title through a deed of D. J. Carpenter, son and executor of the deceased. This deposition was taken on the fourth of March, 1892, and the witnesses testified that, although a proceeding had been commenced to sell the property for the debts of the deceased, a sale had not yet been had. This deposition was objected to en masse by the defendant, but for what reason the record does not disclose, and the court sustained the objection, the plaintiff excepting.
The plaintiff next offered in evidence the deposition of J. W. Brennan, a farmer living at Beloit, Iowa, who testified touching the selling and rental value of the property in question at the date of the trade. He testified that the building consisted of one double, frame store building, one story in height; that the selling value would not exceed $500; that the rental value
This was all the evidence offered by the plaintiff; and the defendant in his own behalf testified that, in talking to the plaintiff about the Iowa property, he told the plaintiff he knew nothing about it. “I never saw it, and all I know about it was what was said on the postal and in the letter, and I did not know whether that was true or not. I told Basye, the notary public, I wanted him to take my wife’s, acknowledgment, as she was not very well and I wanted to save her a trip to Bowling Green the next morning.” In his cross-examination he gave as a reason, why he was in a hurry to have his wife’s acknowledgment taken, “that the contract was signed and the trade made, but Hume was in possession of the store, and was selling stock and putting the money in his pocket, and would continue to do so until he got my deed. That was the cause of my hurry.” He also testified: “My wife and I went to Mr. Hume’s store in the morning of the ninth of •January. There were several in the store. I gave Mr.
“ ‘Bowling Green, Mo., Jan. 8, ’91.
“ ‘I, Z. B. Brelsford, of the county of Pike and state of Missouri, hereby agree to buy the entire stock of goods and fixtures now in the rooms of the Hume Milling Company, number 106 east side of the square in Bowling Green; the consideration being my two business rooms and two lots, numbers 6 and 7, block 25, in the town of Beloit, Lyon county, Iowa, to which I agree to make a general warranty deed to said W. J. Hume. Possession of property in Iowa to be given on January 9, 1891, and to receive possession of said stock of goods on same date. This stock embraces all goods and fixtures in the house belonging to the said Hume. Said Brelsford to assume the rents and insurance on said house and stock of merchandise.”
This contract was signed by the plaintiff and also by the defendant.
Robert Brelsford, a brother of the defendant, testified that he was in the store on the Saturday following the trade, and saw the defendant show the plaintiff a letter, and heard the defendant state that Mr. Betts said the Iowa property could be sold for $2,000 on time. “Mr. Hume then showed defendant the abstract
Mr. J. L. Dawson testified, on behalf of the defendant, that he was present in the store, and about five or six feet from the defendant and plaintiff, when the deed to the Iowa property was delivered to plaintiff, and'when the possession of the store was turned over to the defendant, on January 9, 1891. “Saw defendant deliver to plaintiff the deed and abstract to the Iowa property. After this was done, heard Mr. Hume ask Brelsford for the letter and postal card. Defendant gave Mr. Hume postal card, and his wife found letter in his overcoat pocket, which was hanging some distance away. Brelsford then handed Mr. Hume the letter, and said that was all he knew about the Iowa property, as he had not seen it and did not know anything about it, except what is stated in the letter and postal card. Defendant then turned and went back to where his overcoat was hanging, and put some papers in the pocket. Did not hear Mr. Hume ask Brelsford if he traded the property on the representations made in the letter and postal card.”
It is thus perceived that this is an action for damages, not for a breach of any warranty, but for fraudulent misrepresentations as to the title, condition, selling and rental value of the property which the defendant con
It is necessary, however, to consider the propriety of the ruling of the court in excluding the deposition of Mr. Parsons, the attorney, the substance of which has been stated. This deposition, it will be recalled; •related chiefly to the state of the law of Iowa in regard to the power to sell, for the payment of the debt of a deceased person, real property of his in the hands of his devisee. We do not at all question the proposition that the law of a foreign state may be proved by the oral testimony of a lawyer of that state, who is an
Laying the other questions out of view, we must, therefore, affirm the judgment on the evidence, as being for the right party. It is so ordered.