188 Mo. App. 607 | Mo. Ct. App. | 1915
Herein an agent is sued by his principals for loss occasioned by the alleged violation of the agent’s duty to them. The trial court sustained an objection to the introduction of evidence on the ground that the petition stated no facts sufficient to constitute a cause of action. Thereupon, in due time, plaintiffs appealed.
Where no demurrer has been filed, but the attack is made on the petition by an objection to the introduction of evidence after the trial has begun, the pleading is entitled to the benefit of every intendment in its favor. [Downs v. Andrews, 145 Mo. App. 173.] To justify such an attack, the petition must be so fatally defective as to state no cause of action at all, so that, if a judgment was rendered thereon, a motion in arrest would lie. [Donaldson v. Butler County, 98 Mo. 163; Roberts v. Walker, 82 Mo. 200.] Even if certain necessary allegations are not expressly averred in the petition, yet if they are necessarily implied by what is expressly stated, the objection thereto should be made by motion and not by an objection to the introduction of evidence. [Murphy v. North British etc. Ins. Co., 70 Mo. App. 78.] If, therefore, the facts alleged in the petition are sufficient to present a situation from which all the essential elements necessary to a recovery are stated or appear by necessary implication, the pleading should be held good as against a mere objection to evidence thereunder even though 'the petition might perhaps be thought
The first count alleges that plaintiffs owned certain real estate in Kansas City worth $20,000; that defendant was a real estate broker and held himself out to the world, and especially to plaintiffs, as possessed of peculiar knowledge and judgment in ascertaining the values of real property in western Missouri and eastern Kansas; that plaintiffs, believing him to be possessed of such knowledge and judgment employed him to effect an exchange of their property for income producing farm land of good quality worth the value of plaintiffs ’ property, and they relied upon defendant to effect such exchange and to inform them accurately and truthfully concerning the quality and value of any property he might bring to their attention. Said count further charges, in effect, that defendant had charge of and entered upon negotiations with certain parties in Brown county, Kansas to exchange their farm in that county for plaintiffs’ property and that defendant represented plaintiffs in these negotiations; that defendant negligently failed to ascertain the true facts concerning the Kansas land, but negligently stated to plaintiffs that the proposed exchange would be of great profit to them, that he knew the Kansas land was a splendid farm
The second count set forth practically the same facts except that defendant was charged with having
We think the petition stated a cause of action. It is a suit by two principals against their agent for a violation' of his duty whereby they have suffered a loss. It is not a suit between parties who are strangers or adversaries dealing with each other at arms length and where each must beware and look out for himself. The
Defendant owed plaintiffs the duty to exercise ordinary care, skill and diligence to correctly ascertain and accurately report the facts to plaintiffs about the Kansas farm. He was in charge of that matter. It had been entrusted to and left with him. He could not assume to perform the task and do it carelessly to plaintiffs ’ damage. [31 Cyc. 1456, 1459, 1460; 4 Am. & Eng. Ency. of Law (2 Ed.), 968.] “.Whenever an agent violates his duties ,or obligations to his principal . . . by positive misconduct or by mere negligence or omission . . . and any loss or damage thereby falls on his principal, he is responsible therefor, and bound to make a full indemnity.” [Switzer v. Connett, 11 Mo. 88, l. c. 89.] It is the duty of the agent to ‘ ‘ exercise reasonable skill and ordinary diligence, that is, the degree of skill ordinarily possessed and employed by persons of common capacity engaged in the same business, and the diligence which persons of common prudence are accustomed to use about their own business and affairs. For a loss to his principal from neglect of these duties he is liable.” [Lake City F. M. Co. v. McVean, 32 Minn. 301; Leverick v. Meigs, 1 Cow. 645; Lawler v. Keaquick, 1 Johns. Cas. 174; Loeb v. Hellman, 83 N. Y. 601.] Plaintiffs had a right to believe that defendant would exercise reasonable care and diligence in the matter because the law implies a promise to that effect on the part of brokers and similar agents. [Gheen Morgan So Co. v. Johnson, 90 Pa. St. 38, l. c. 49.] Under the allegations of the first count, defendant was agent' for plaintiffs and they were trusting him entirely to act for them in the transaction. Under these circumstances he
The second count of the petition sets up the relationship of principal and agent and then charges the latter with fraud and deceit whereby plaintiffs were led into a contract, to extricate themselves from which, they were required and compelled to expend and obligate themselves to the extent of $2000'. This clearly made out a case against the agent based upon his fraud. [Burger v. Boardman, 254 Mo. 238, l. c. 252; Stonements v. Head, 248 Mo. 243, l. c. 255, 268.]
It would seem to be clear that for a violation of the agent’s duty toward his principal either through gross negligence or wilfully through fraud, whereby a loss occurred, a cause of action exists in favor of the principal and against the agent. The question then arises is the loss in this case, being expense plaintiffs incurred in extricating themselves from the contract, recoverable? The agent led them into the contract and by his negligence or wilful fraud they were placed in a situation where, if the contract was carried out, they would lose something in the neighborhood of $20,000. But they learned the true situation in time and rescinded the contract and refused to perform. Suit was brought against them to compel performance and to defend and
There is no misjoinder of causes of action. Both counts grow out of the same transaction, and both are for loss of property. [Sec. 1795, R. S. 1909.] Neither is one based on a cause of action ex contractu and the other on a cause ex delicto. They were properly joined in the same petition but stated in separate counts as they should have been. This was proper, and plaintiffs could not have been compelled to elect between them. [Weachter v. St. Louis & Meramac R. Co., 113 Mo. App. 270.] They were not.contradictory and, therefore, were not destroyers of each other so as to render the petition a felo de se. One merely charged the agent with negligence, the other with wilful fraud. These were not inconsistent charges but were statements of two causes of action under which all the evidence could be submitted, and it would be for the jury to say which the evidence established if it established either of them.
It is not seen how there can be a misjoinder of parties plaintiff in this case. The plaintiffs are husband and wife. Both employed the defendant as agent, both signed the contract induced by him which got them into trouble, both were sued for specific performance, and both incurred the expense in defending that suit. The cause of action is joint.