91 Mo. App. 288 | Mo. Ct. App. | 1902
— This was an action which was brought against defendant Jones together with George W. Bailey and J. O. Andrews. The cause was dismissed as to the two latter, after which it proceeded to judgment against Jones, the remaining defendant, who has appealed here. The contention of the defendant is, that the plaintifE has sued on one cause of action and recovered on another. This contention must be determined by reference to the allegations of the plaintiff’s petition and instructions.
After eliminating and rejecting as surplusage the allegations of the petition, so far as the same state a cause of action
The allegations of the petition in effect were: (1) That the plaintiff was the owner of 160 acres of land subject to certain incumbrances. (2) That defendant falsely and fraudulently represented to plaintiff that one Minnie Denyes was the owner in fee of two certain lots in Brookfield which were subject to a certain incumbrance amounting to one hundred and twenty-five dollars only, when in fact there was three hundred and eighty-five dollars due and unpaid thereon. (3) That the defendant falsely and fraudulently represented to the plaintiff that he was the owner of a large number of good promissory notes made by solvent persons, when in fact the defendant was not the owner of a large or any number of promissory notes made by solvent persons. (4) That the defendant proposed to plaintiff to exchange the Brookfield property for the lands of plaintiff, and in addition thereto to give plaintiff five hundred and thirty-five dollars in promissory notes to be selected out of the number of good solvent ones which defendant represented himself to hold, the same being the agreed difference between the value of the Brookfield lots and the plaintiff’s lands, or the value of the plaintiff’s equity therein. (5) That the plaintiff, relying on the representations made to him as aforesaid by defendant, and believing that defendant and the said Minnie Denyes desired in good faith to exchange said Brookfield lots and said amount of solvent promissory notes for the plaintiff’s lands, was thereby induced to and did exchange his equity in said land for that of the said Minnie Denyes in the Brookfield lots and the delivery to him of five hundred and thirty-five dollars in said promissory notes, which defendant well knew were then utterly worthless and insolvent. In consequence of all which, plaintiff was damaged in the sum of seven hundred and ninety-two dollars, etc.
The petition here, in plain and explicit terms, alleges the false and fraudulent representations that were made by the defendant; that the.same W’ere known to him to be false when made, and that the plaintiff, relying upon such representations, was induced to exchange his land for said notes and the Brookfield lots, in consequence-of which he was damaged, etc. It is true that the contract for the exchange of the plaintiff’s land for the Brookfield lots and the promissory notes is referred to in the petition, but the gravamen thereof is the deceit practiced by the defendant on the plaintiff, whereby the latter was induced to enter into the contract for the exchange of properties, etc. It will be seen by reference to the elementary books on pleading, that the allegations of the present petition conform in substance to those of the approved precedents in actions for deceit. 2 Chitty Plead. (16 Ed.), 521 eirseq.; Bullock v. Woolridge, ante. It is perfectly manifest from the allegations of the petition that the action is not on the contract, but for the fraud and deceit by which the plaintiff was entrapped and induced to enter into such contract. And it therefore falls within the class of actions ex delicto and not ex contractu,.
Having reached the conclusion that the cause of action stated is one in tort, and not on contract, it remains to inquire whether or not- the plaintiff’s instructions, as defendant contends, submitted the case to the jury upon a theory variant from that alleged in the petition.
These instructions in substance told the jury (1) that
It thus is made plainly to appear that the plaintiff’s instructions are within the allegations of the petition, and if that pleading alleges a cause of action based on fraud or deceit, as is the ease, then certainly that cause of action was submitted to the jury by plaintiff’s said instructions. It follows from this that the judgment can not be assailed on the ground that the plaintiff recovered on one cause of action while in his petition he alleged another.
We have examined the evidence, and as a result have concluded that it sufficiently supports the allegations of the petition to uphold the verdict. The numerous authorities referred to by the learned counsel for defendant have by no means been overlooked by us, but we do not think the application of the principles they announce can be successfully invoked in a -case like this.
So far as we can discover, the judgment is impregnable to assault on any ground; and it must therefore be affirmed.