130 Mo. App. 194 | Mo. Ct. App. | 1908
This action was instituted on a promissory note dated September 1,1904, by which defendant promised to pay on July 1, 1906, to the order of plaintiff, $150 with interest at the rate, of eight per cent per annum. The execution of the note was admitted and in defense it was alleged that on August 30, 1904, defendant rented from plaintiff a farm in Howell county represented by plaintiff to contain two hundred acres of land in cultivation, on which representation defendant relied and agreed to pay $1.50 an acre cash rent for the premises or $300 in all; that defendant paid half said rent, or $150, at the time of the contract and executed the note in suit for the other half. It is charged the representation regarding the quantity of land in cultivation was false, as in truth only 140 acres were in cultivation and there was no consideration for the rent for the deficiency of sixty acres. Hence defendant prayed to recover by way of counterclaim the sum of $90, or $1.50 an acre for the shortage. For another counterclaim defendant stated that on said August 31, 1904, he purchased of plaintiff 54 acres of corn standing in the field, raised and entirely owned by plaintiff, and plaintiff’s one-third of forty acres of corn raised on his premises by his tenant Shaver and plaintiff’s one-third of forty acres of corn raised on his premises by his tenant George Ball. It was" alleged defendant agreed to pay and did pay $7 an acre for plaintiff’s interest in these three lots of standing com; that plaintiff represented there were fifty-four acres of corn owned ex
It will be observed that in the counterclaim for the alleged deficiency in the number of acres of land in •cultivation, defendant seeks to vary the written lease and engraft a new stipulation on it. The writing recited plaintiff had leased to defendant certain lands in Howell county for the year 1905, saying nothing about the number of acres or that the farm was leased by the acre. The consideration was recited to be $300, $150 cash and a promissory note for the remainder. If defendant was led into this contract by fraud he might have rescinded it had he taken steps to rescind in a reasonable time. But he did not. He retained the land during the period of the lease, and now seeks to evade
The counterclaim for money had and received in consequence of defendant having paid for more corn in the fields than was delivered to him, stands on a different footing. According to his testimony, and he was corroborated well by other witnesses, he bought so many acres of corn at $7 an acre, and there was a large deficiency in the number of acres turned over to him. Beyond question money paid in excess on such a contract, when the purchaser relied on the representation of the seller as to' the quantity of the article sold, and might, in reason, rely on.it, can-be recovered back in an action for money had and received. If defendant swore truly, he relied entirely on plaintiff’s statement as to the number of acres of com. He was unfamiliar with
It has not been contended the finding of facts by the court would render its error in passing on the declarations of law immaterial. Perhaps this might be the consequence of the findings if they had been requested by either party, and hence had been made in conformity to section 695 of the Revised Statutes of 1899. There have been contrary rulings on the question of whether findings under this section render declarations of law unnecessary; as will be seen by reading- these casesi. Kostuba v. Miller, 137 Mo. 161, 38 S. W. 946; Sutter v. Raeder, 149 Mo. 297, 50 S. W. 813; and Insurance Co.
The judgment is reversed and 'the cause remanded.