205 Mo. 412 | Mo. | 1907
Plaintiff brought this action in the circuit court of St. Louis against the defendants, Edward W. Rawlings, T. S. Teuscher and Mrs. T. S. Teuscher, for damages for false and fraudulent representations concerning the financial standing of T. S. Teuscher, upon which plaintiff alleges she acted and relied, to her detriment and damage. The petition contained two counts. The first count alleges that the defendants falsely and fraudulently represented to the plaintiff in November, 1896, that the said T. S. Teuscher was worth the sum of ten thousand dollars over and above all liabilities, was solvent and ini good credit, and safe to be trusted for a loan of five thousand dollars ; that relying on said representations the plaintiff loaned said Teuscher the sum of five thousand dollars, and took for the loan Teuscher’s note payable one year after date with interest at the rate of six per cent per annum. The petition then alleges that each year thereafter until November, 1901, inclusive thereof, the said loan was extended for one year at the same rate of interest, and that at the date of each extension, the same representations were made by the defendants and relied on by the plaintiff, these allegations being relied upon after each extension separately. It is further alleged in the first count that at the date when the loan was made and at the time of each renewal thereof, Teuscher was insolvent and this was well known by the defendants and designedly concealed; that Teuscher has wholly failed to pay the loan or any part thereof, excepting that the interest was paid thereon up to the seventeenth of May, 1902. The second count refers to the same loan, and alleges a combination and conspiracy between the defendants to defraud the plaintiff and in furtherance thereof sets forth that Teuscher and wife, who were the brother-in-law and sister of the defendant, Rawlings, made various representations
At the beginning of the trial and before any evidence was introduced, the defendant moved the court to require plaintiff to elect upon which of the several causes of action alleged in the first count, she would proceed; and the court sustained this motion and plaintiff elected to proceed on that portion of the first count which related to the last extension^ namely, the extension from November 17, 1901, to November 17, 1902, and the false representations relief upon by the plaintiff in the making of the renewal. While that election was made the plaintiff introduced evidence, both in regard to the original transaction and the various renewals. At the close of the plaintiff’s evidence, the defendant asked an instruction in the nature of a demurrer to the evidence, which the court gave and thereupon the plaintiff took a nonsuit with leave to move
The evidence tended to establish that Mrs. Knight, the mother of the plaintiff, and Mrs. Rawlings, the mother of defendant Rawlings, were old acquaintances and friends; that, in the year 1896, the plaintiff and her two sisters became entitled to an inheritance in England, the share of each being $5,265, the proceeds of which were forwarded to them and were received by them on October 28, 1896; that Rawlings, the defendant, who was then a clerk in the employ of Whit-taker & Hodgman, assisted the plaintiff and her sistersi in the collection and depositing of these funds in the National Bank of Commerce of St. Louis; that the elder sister took charge of her share of the funds, but the plaintiff and the other sister deposited theirs at the National Bank of Commerce in their respective names; that' the defendant Rawlings advised them not to invest their funds until after the November election, 1896; that on November 11, 1896, Mrs. Teuscher, in the course of a social visit to Mrs. Knight, the mother of plaintiff, inquired whether the plaintiff and her sister had invested their funds and when informed that this had not been done, seemed surprised; that on the next day, Mrs. Teuscher in the course of another visit, mentioned that she had spoken of the matter to Mr. Teuscher, her husband, and he had expressed his willingness to borrow the money from the plaintiff and her sister; that Mrs. Knight, whu had acted for her daughters in this matter, informed Mrs. Teuscher that the consent of the defendant Rawlings would be necessary; that nothing further transpired until November 16,
The witness was asked to state whether or not the loan was renewed from time to time on the faith of statements of Mr. Rawlings contained in any of these letters, to which counsel for the defendant objected on the ground that there was no evidence of such statements contained in the letters. Which objection the court sustained and plaintiff excepted. The loan was renewed the last time November 17, 1901, and matured November 17, 1902, and the note was never paid by Teuscher. Witness further stated that no policy of insurance was ever turned over to her or to her sister, the plaintiff, after the loan was made. They supposed it had been transferred to them and was being held by Mr. Rawlings as security for the loan as a part of the original understanding. She further stated they had never made any investigation as to the solvency of Mr. Teuscher, because they had relied implicitly upon Mr. Rawlings. Upon the motion of the ■ defendant the court excluded the evidence of the witness as to plaintiff relying upon Rawlings, to which action of the court the plaintiff excepted. She further stated that the services rendered to her and her sister in these matters by Mr. Rawlings were without any compensation.
The plaintiff in her own behalf testified and gave the same account of the transactions as above detailed by her sister. She added, however, that when the loan was made an insurance policy on the life of Mr. Tuescher was to be issued to them to secure the same. This policy was supposed to be issued for sixty thousand dollars. The policy was not taken out until the seventeenth of April, 1899, and was for ten thousand dollars. On June 6, 1902, she was in St. Louis and made some investigations as to whether the policy had been taken out. Teuscher had not been paying the
Mrs. Harriett Knight, the mother of the plaintiff, stated that she had known Mr. Rawlings over thirty years and the relations between them had been intimate during that time; the two families lived for quite a time in the same house and this relation continued up to November, 1896. She corroborated the statements of her daughter as to what occurred at the house of Mrs. Teuscher when it was agreed the loan should be made. She was asked also as to what oral representations Rawlings made on that occasion as to the credit and solvency of Teuscher, to which questions the defendants objected, and the objections were sus- • tained and exceptions saved.
Mantón Davis testified for plaintiff that he was a member of the bar of St. Louis and represented the receiver of the Mullanphy Rank since its failure; that Teuscher was indebted to the bank to the amount of two hundred thousand dollars, evidenced by notes; that he had made repeated efforts to collect these notes and had failed to do so; that these notes were all dated prior to September, 1896. This is practically all the evidence in. the case.
I. Upon the case made, the circuit court held that •section 3422, Revised Statutes 1899, which provides: “No action shall be brought to charge any person upon or by reason of any representation or assurance made concerning the character, conduct, credit, ability, trade or dealings of any other person, unless such representation or assurance be made in writing, and subscribed by the party to be charged thereby, or by some person
Counsel for plaintiff among other cases cite Bush v. Sprague, 51 Mich. 41, as supporting their contention that the statute does not apply to conspiracies or actual frauds. But an examination of that case will show that counsel have quoted from the opinion of Campbell, J. On the contrary, the Chief Justice, in discussing this section of the Statute of Frauds and the occasion of its passage, in connection with the decision in Pasley v. Freeman, said: “It is therefore obvious that a charge of conspiracy to defraud by false representations will not disappoint the statute. Neither the reason nor the language of the provision will exclude a case on account of the number of wrongdoers, or in consequence of their having acted on a previously concerted plan.” And Judge Cooley, the remaining member of the court, said: “I agree with the Chief Justice in the view he takes of the application of the Statute of Frauds to this case.” The other case, Hess v. Culver, 77 Mich. 598, has no bearing upon the question under consideration. It simply held that the statute does not apply to a conspiracy or actual fraud where the representation is made to enable the party
We come now to the case of Warren v. Barker & Co., 2 Duv. (Ky.) 155, relied upon by the plaintiff as holding a contrary view to the decisions in Massachusetts, Indiana and Maine. The Kentucky statute, section 1, page 22, Stanton’s Revised Statutes, page 264, then in force, was to all practical effects the same as the Tenterden Act of England. As said by Chief Justice Stone, in Ball v. Farley, Spear & Co., 81 Ala. 1. c. 293, that case is meagerly reported, but enough is shown to give a correct understanding of the principles declared. Barker and Company had introduced a man to Warren, who offered a bill of exchange for sale, which was apparently indorsed to the offerer. Warren purchased the bill, and it turned out to be a forgery. The decision of the court, and the language in which it is expressed, force the conclusion that there was an entire absence of proof of combination or collusion between Bárker & Company, and the man introduced. The report contains only the opinion of the court, .and the following is the summation of the facts as therein shown: “The appellant, Warren, sued the appellees, Barker & Company, for a false and fraudulent introduction to him, as an exchange banker, of an impostor, holding, as apparent indorsee, a forged bill offered for sale, and which, on the faith of that recommendation, he was induced to buy.” The trial court sustained a demurrer to the petition. An amendment was then offered and allowed, charging a fraudulent combination between Barker & Company and the seller of the bill. The trial court peremptorily instructed the jury to find for the appellees, Barker & Company, which they accordingly did. Judge Robertson, speaking for the Court of Appeals in pronouncing on the de
Section 3422 was first adopted in this State March 15, 1845. [R. S. 1845, p. 531.] The annotator of that revision remarks: ‘ ‘ This section is borrowed from the English code where it was first enacted in the 9th year of George IV. It has been adopted in the late Revised Statutes of Massachusetts, and Chancellor Kent, speaking of it, says: ‘It wonderfully relieves the courts, the profession and the country, from the evils of fluetating and contradictory decisions.’ [2 Kent’s Com., 489, in note.] ”
This court had occasion in Clark v. Edgar, 84 Mo. 106, to comment upon this section, and Judge Bi^ack said in passing upon a demurrer to the petition: “A further objection is that the representations were not made in writing, subscribed by the defendants, or any one authorized so to do by them. This objection is based upon section 2515, ReAdsed Statutes 1879, which differs in no material respect, so far as this case is con
Now it is familiar doctrine that when the statute of another State or country is adopted by the Legislature of this State, the construction placed upon that statute prior to its adoption in this State, will be presumed to have met the approval of our Legislature when adopting it. We have seen that Lord Tenterden’s Act was enacted in 1828, and that the courts of England had prior to 1845 expressly ruled that a false representation as to the credit of another would not take the case out of that act. And considering the purpose of that act and the causes which led to its adoption, particularly the case of Pasley v. Freeman and the great weight of authority in this country, we are inclined to the opinion expressed by Browne in his work on the Statute of Frauds, and hold that the plain meaning of this statute is that it requires a writing to charge a defendant upon any representation made in regard to the credit, etc., of a third Party whether such representation is made in good faith, or is known to be false and made in order to deceive and defraud the plaintiff, because the presence of this very element of intention to deceive and defraud was the very point
The plain purpose of Lord Tenterden’s Act was to require a writing in a case for which 29 Car. II had failed to provide, and to sustain the contention of the plaintiff in this case we must go back to Pasley v. Freeman and ignore the statute, section 3422, Revised Statutes 1899, which was enacted to remedy the ruling in that case. To do that we must import an exception into the statute, a restriction and exception which its language does not. justify.
Accordingly, it must be held that the circuit court committed no error in rejecting the offers to prove the oral representations of the defendant Rawlings, as to the solvency and credit to which Teuscher was entitled. And we are wholly unable to agree with counsel that the defendant can be held liable for misrepresentations without knowledge of their falsity and that the statute does not cover any case for which a liability would exist at common law. To reach such a conclusion we must disregard the statute entirely. As to the evidence on the part of the plaintiff and her sister as to why they did not make other inquiries and that the defendant Rawlings stood in a confidential relation to the plaintiff, we are of the opinion that the defendant did not sustain any such relation within the meaning of the law. He was at most but a friend of the family and received no compensation whatever for his acts in assisting them in collecting and depositing their money.
Our conclusion is that the circuit court committed no error in rejecting the evidence, and that the statute is a complete bar to plaintiff’s action, and accordingly the judgment must be and is affirmed.