83 Mo. App. 395 | Mo. Ct. App. | 1900
Lead Opinion
Action by the payee against the maker of a note for $306.25, dated thirtieth of November, 1897, due one day thereafter. The defenses relied upon, are, first, that the note was a part of the consideration of a contract (executed by the principal, J. D. Worley, for whom it is alleged plaintiff acted as agent), which contract conveyed to defendant and B. A. Powell, jointly, the right to sell, in a particular territory, churns made under a patent issued to
Issue was taken by a reply. A trial was bad. The jury returned a verdict in favor of defendant upon plaintiff’s cause of action, and also in favor of defendant upon his counterclaim for $617.70. Plaintiff appealed.
I. Appellant complains of the use by the court in its instructions for defendant of the terms “material” and “immaterial” as applied to the representations made by plaintiff. This error can not be invoked in this case, since the record shows that appellant invited it by employing the same terms in the instructions wbicb the court gave for him. Whitmore v. Ins. Co., 100 Mo. loc. cit. 47. Neither was there any error in the admission in evidence of the letters from the manufacturer of the churns to plaintiff show
II. Appellant also -denies the right of defendant to rescind the contract for which the note in suit was a part payment. It is the settled law that a rescission of contracts may be made in three ways: First, by agreement of the parties; secondly, by a warrantee for breach of warranty; thirdly, as a matter of right in favor of one who has been induced to make the contract, by mistake or fraud. Where a contract has been procured by fraud, the injured party is entitled upon the discovery of the fraud, to restore what was received, and recover what was paid under the contract. Such rescissions are matters of absolute right and are grounded on the legal nullity of the contract. The defrauded party has still another remedy. He may affirm the contract and have his action for damages occasioned by the fraud of the other party. Mfg. Co. v. McCord, 65 Mo. App. 507; Parker v. Marquis, 64 Mo. 38; Melton v. Smith, 65 Mo. 315; Robinson v. Siple, 129 Mo. 208. In the case at bar the instructions warranting a finding of the rescission of the contract were predicated upon the joint action of defendant and Powell. That issue was found by the jury in favor of defendant, hence the point made by appellant that defendant alone could not rescind the contract, is not sustained by the record.
III. The decisive question on this appeal arises upon the counterclaim filed by defendant and the instructions of the court submitting it to the jury. Under the first statutory subdivision a counterclaim may be filed by a defendant who is entitled to a several judgment against the plaintiff, whenever the cause of action set forth in the counterclaim arises out of the contract or transaction stated in the petition, or is connected with the subject of the action. R. S. 1889, sec. 605. If it possesses these statutory elements it is immaterial whether the cross suit is legal or
IV. As to the second conclusion, that the. counterclaim in this case can not be maintained against the plaintiff of record. In support of this it is only necessary to repeat
V, For the foregoing reasons the judgment in favor of defendant on the counterclaim can not be sustained; but it w’ould also have to be reversed if it had been filed by the proper parties, on account of error in the instruction given of the court’s motion, which told the jury that if they found on the counterclaim in favor of defendant, they should return a verdict for the two items of cash and credit paid by. defendant, and also for the note for $492.50 given by B. A.
Dissenting Opinion
DISSENTING OPINION BY
I can not agree to the opinion of my associates concerning defendant’s counterclaim. The facts in reference to it are very simple and I thinlc the applicatory law is equally so.
It may be conceded that the purchase by Crigler and Powell was joint. But the uncontradicted evidence proves that -both Crigler and Powell individually assumed to pay for their respective interest in the property bought. Crigler paid $47.75 cash; he surrendered a note he held against Worley (who was the plaintiff’s principal) for $42.50; he assumed a debt of $216 due from Worley to Mrs. Duncan, which iras secured by a mortgage on Worley’s land, and for the balance of the purchase money of his half of the property he gave the note here in suit. Powell paid cash $120, and
Again, the majority opinion proceeds on the idea that as Worley received the purchase money, Miller, who acted as his agent, can not be held for damages resulting from the alleged fraud practiced by him. The idea of my associates seems to be that the action is for a simple conversion of the purchase money, and that as Worley received the purchase money, he only can be sued. To this I can not agree. The action is for damages growing out of the alleged fraud in the sale, and is based on the rescission. The measure of such damages is the purchase money with interest. Miller can not escape personal liability for his alleged fraud, on the ground that he gained nothing by it. An agent for the sale of the property, may or may not render his principal liable to the vendee for his frauds, but he certainly in all cases fastens a liability on himself. Hamlin v. Abell, 120 Mo. 188.
In my opinion Crigler has a valid claicq, 'against Miller for $90.25 and interest, being the amount of cash paid and the amount of Worley’s note which Crigler surrendered. He is also entitled to recover the amount of the debt due from Worley to Mrs. Duncan, which he assumed provided Mrs. Duncan has accepted him as a debtor and has changed the status of her debt as to Worley to her detriment. In such a case she could hold Crigler on his promise. Crigler