Mullinax v. Lowry, 140 Mo. App. 42

Mullinax v. Lowry

140 Mo. App. 42 | Mo. Ct. App. | 1910

ELLISON, J.

This action is based on a contract for the purchase of a lot of hay and corn. The defendants filed an answer setting up a counterclaim.. There are two defendants, though we need only refer to one of them. The judgment wras for the defendants.

It appears that one Fox bought the hay and corn of plaintiffs by a written contract. That Fox was represented by and acted through defendant as his agent. The hay was sold at nine dollars per ton and the corn at fifty cents per bushel. Á portion of the hay was delivered and a part of purchase price was also paid. Defendant then discovering that the hay was not of the *44quality bought, refused to receive or to accept any more. This action resulted for the difference in the price which was to be received and what the hay was worth on the market when refused. Since the contest relates to the hay, we will not consider the com. Nor is it necessary, so far as our conclusion is concerned, to deal with the matter of cash payments made, or whether they were intended to be on the corn or the .corn and hay.

Defendant’s answer set up a counterclaim and pleaded the written contract showing that plaintiffs’ agreement to sell the hay to Fox was made through this defendant as agent for Fox, and that afterwards Fox assigned the contract to defendant; thus the agent negotiating the contract became the owner of it and Fox dropped out of the transaction.

It is set up in the answer that plaintiffs knowing that “defendant” wanted the hay to ship and sell on the market, falsely, deceitfully and fraudulently, with intent to cheat and defraud “defendant,” represented that the hay was first-class timothy and suitable for the market and that “defendant” not knowing the true quality and it being impossible for him to examine it, and relying on plaintiffs’ representations, purchased it, etc. It is then properly alleged that certain payments were made before learning the quality of the hay; that is, that it was of inferior and unmarketable kind, and that defendant was compelled to sell at a loss, to his damage, etc.

It thus appears that the sale was made to Fox and that the fraud and deceit was practiced upon Fox; but that the answer charges the representations to have been made to, and the deceit practiced upon, the defendant. It is manifest that the pleader has allowed himself to charge that the deceit and fraud was practiced upon the • defendant from the circumstance that defendant was the agent who made the contract for Fox and after-wards became the owner of it; thus being substituted *45for Fox in the transaction. But, as a matter of law, the contract was made Avith Fox and the fraud and deception Avas practiced upon him, and the answer should have so alleged it. As the matter stands tve have one cause of action stated and a different one proven, which is not alloAvable. [Henry County v. Bank, 208 Mo. 209, 226.]

Again, there is no allegation that the cause of action arising, in favor of Fox by reason of the fraud and deceit alleged to have been practiced upon him, was assigned to defendant. Without such assignment defendant has no right to avail himself of it.

But the further question remains: Is such an action assignable? Can an action for fraud and deceit practiced upon the assignor be maintained by the as-signee for the purpose of recovering damages arising from the deceit practiced upon the assignor? The law is that it cannot. [Harrison v. Craven, 188 Mo. 590.]

The judgment is reversed and the cause is remanded.

All concur.