170 Mo. App. 389 | Mo. Ct. App. | 1913
Plaintiff sued to recover damages for fraud and deceit practiced by defendants in the sale of a farm. At the conclusion of the evidence the jury in obedience to a peremptory instruction returned a verdict for defendants. Plaintiff appealed and contends that his evidence discloses he has a good cause of action.
Defendants Heimbrook, Hoefer and Layne were the managing officers of the Investment Exchange Company, a corporation engaged in the business of real estate broker in Higginsville. August Elebracht employed the company to sell a farm of 153 acres he owned in Lafayette county and defendants effected a sale of the farm to plaintiff for $13,005 or $85 per
Plaintiff, a practicing physician in Higginsville, has had extensive dealings in real estate in Lafayette county, is familiar with the values of land and did not buy the farm in question until after he had inspected it. He relied entirely on his own judgment of the value of the farm and does not claim that any false representations were made concerning it or its value. He concedes the farm is worth the price he paid but claims- that defendants took advantag-e of his friendship and confidence to deceive him about the price at which their principal had authorized them to sell. At first Elebracht had priced the farm at $85 per acre but sometime before the sale had authorized defendants to sell it for $12,000, and had agreed to pay defendants the usual commission which would have amounted to $130. 'After learning that plaintiff would buy the farm at that price they deferred the negotiations with him until after they had induced their principal to enter into a contract for the sale of the land to them for $11,500. After securing this contract they returned to plaintiff and still claiming to be the agents of Elebracht, represented that the lowest price their principal would put on the farm was $13,005; that their commission would be $130, and that they would give him $65, which was one-half of the commission, to effect the sale. Plaintiff compelled them to allow him an additional sum of $11.50, and the sale was closed at a net cost to him of $12,928.50.
The cases of Hokanson v. Oatman, 165 Mich. 512, and Kice v. Porter, 21 Ky. L. 871, 53 S. W. 285 and 22 Ky. L. 1704, 61 S. W. 266, are dissimilar in some essential features to the case in hand, but if they could be said to be in point we would not follow them since to do so would require us to ignore the well-settled rule in this State that “fraud must concur with damages to be actionable.” [Johnson v. United Railways Co., 152 S. W. l. c. 368; Thompson v. Newell, 118 Mo. App. 405, and cases cited.] The conduct of defendants as portrayed in the evidence of plaintiff deserves censure. They were guilty of fraud and deceit but the man they injured was their principal, not plaintiff. It is idle to talk of plaintiff having a right to buy the land at the lowest price the owner would take for it. Let us suppose that plaintiff had pierced through the guard defendants artfully threw around their principal and had entered into direct negotiations with him. Would plaintiff be heard to complain that the owner had charged a higher price for the land than he would have gold it forf And if a broker obtains a
The judgment is affirmed.