175 Mo. App. 646 | Mo. Ct. App. | 1913
This is a suit in equity wherein the cancellation of a contract is sought on the grounds of fraud and deceit in its inducement. The finding and judgment were for plaintiff and defendant prosecutes the appeal.
Plaintiffs, copartners, are engaged in negotiating loans in Dunklin county for others on commission.
The evidence tends to prove,, and the court so found the fact to be, that defendant’s- agent, in order to induce - plaintiffs to purchase the stock, make the cash payment thereon and execute the notes therefor, promised that the defendant trust company would furnish them all of ’ the money required to take care of such real estate loans as they might- procure at six per cent interest, but in no ease to loan more than fifty per cent of the value of the land offered as security. ' While such agreement appears to have been made, it appears conclusively,too, that defendant’s agent represented to plaintiffs it was not then prepared to take care of the farm loan business but would do so after thirty days from that date if plaintiffs would purchase the stock as above stated. More than thirty days afterward, and subsequently, plaintiffs submitted to defendant a number of good farm loans and applied for the money to consummate them in accordance with this agreement, but defendant rejected them in each instance. Finally, defendant asserted it bad failed to make proper connections with eastern financial concerns and therefore would not abide its agreement to furnish plaintiffs money for the loans contemplated. No other misrepresentation of fact is revealed in the case and it therefore appears the ground for the relief relied upon relates
There is evidence tending to prove, when the facts and circumstances attending the transaction are all considered together, that defendant did not intend to keep this promise at the time it was made. The court found the issue for- plaintiffs and decreed the relief prayed for, on the theory that this promise so made in bad faith on the part of defendant as an .inducement to the purchase vitiated the contract in its entirety, in that defendant did not intend to keep and comply with its terms. From the special finding of fact made by the court in compliance with defendant’s request under the statute, it appears the judgment is predicated solely on the proposition so stated. Touching this matter the court found, “That the sole consideration and inducement to plaintiffs was the promise and agreement stated above. That plaintiffs were deceived by said representations and promises on the part of defendant. That said representations were not made in good faith, but were so made as a device to induce plaintiffs to enter into said contract of subscription.”
It is conceded that no misrepresentation of a past or existing fact appears in the case, but it is argued that, as it appears the promise was made merely as a means of deceiving plaintiffs and with no intention to perform', it will support an action of deceit as for -the cancellation of the contract so induced. [See 20 Cyc. 22.] There can be no doubt that such is the rule of decision in many jurisdictions, but not in all. Indeed, many of the courts repudiate the doctrine thus invoked entirely and adhere to the rule that, unless the misrepresentation pertains to a past or existing fact, no right to relief whatever obtains. [See 14 Am. & Eng. Ency. Law (2 Ed.), 50, 51, 52; 20 Cyc. 20, 21, 22.] But the principle invoked here has been frequently applied and enforced by the courts of this State where the rescission sought is of a contract for goods purchased by an in
But be this as it may, the question is concluded here by a controlling decision of the Supreme Court which, according to the constitutional mandate, is the rule of decision with us. The doctrine of our Supreme Court, according to its latest decision, is that which prevails in many of the States, and proceeds according to the view that a representation to amount to fraud must
“One reading the plaintiff’s, testimony is impressed with the idea that his main grievance is that he was not given the position of secretary and treasurer at a salary of $100 a month. Assuming that the evidence proved that such promise was. made, it would not justify a rescission of the contract on the theory of misrepresentation. A promise, though made without intention to fulfill, is not a misrepresentation of an existing fact.” [See Younger v. Hoge, 211 Mo. 444, 455, 456, 111 S. W. 20.]
The authority quoted is directly in point and controlling here under the express mandate of our Constitution, for it appears to be the latest decision of that court on the question. Therefore, though it be, as the court found, that defendant made the promise in bad faith and intended at the time not to keep, it,-no ground