21 Mo. App. 219 | Mo. Ct. App. | 1886
delivered the opinion of the court.
The petition is in the form of a bill in equity embracing six paragraphs. The answer was a general denial. There was a trial before the court as in cases in equity, at the end of which the plaintiff stated to the court that a witness who had been subpoenaed for the plaintiff had been unable to attend by reason of sickness; that her testimony would fully corroborate that of the plaintiff in certain particulars, and asked that the further hearing of the case be continued until this witness could attend, which would probably be in a few days. The plaintiff, also, testified that the testimony of the two defendants had been a great surprise to her. The- court, as the bill of exceptions recites, “refused said application on the ground that the plaintiff could not recover in the present form of action and pleading on any proofs, for the reason above stated, to wit, that the action was not equitable, as- brought, but was a legal action for damages, and should have been brought in the form of a legal action; to which ruling and action of the court the plaintiff then and there excepted.”
The bill of exceptions then goes on to recite as follows : “The hearing of the proofs was then closed, and
The plaintiff thereafter filed an affidavit, by her attorney, to the effect that the testimony of the two defendants directly contradicted that of the plaintiff and was wholly unexpected by the plaintiff and her attorney and was a surprise to them; that the absent witness, already alluded to, whose affidavit was attached, had been subpoenaed, but was too ill to attend at the trial; that, as her •testimony was merely corroborative of that of the plaintiff, which neither the plaintiff nor her attorney believed, or had reason to believe, would be contradicted, the plaintiff ■reluctantly consented to go to trial without her presence; that this witness was now sufficiently recovered to attend and would be able to attend on the further hearing .of the case. The affidavit of the absent witness was also subjoined, stating the facts to which she would testify if allowed so to do, and those facts were simply corroborative of the facts testified to by the plaintiff.. The bill of exceptions does not recite any disposition of this motion, but it recites as follows: “On February 16, 1885, the court decided and adjudged that said action could not be maintained in the then present form of the pleadings, the petition presenting a cause in equity when in fact it was a legal cause of action, and the petition should have ■so presented it, and for damages in the usual form of a legal action; and thereupon ordered that, for that reason solely, the action be dismissed by. the court, unless the plaintiff should, within three days, voluntarily dismiss the same, and that in case of a voluntary dismissal, the
Subsequently, on March 30,1885, the plaintiff having ■declined voluntarily to dismiss her action according to the permission above given, the court entered an order ■dismissing the same.
It is too plain for argument that the court committed no error in refusing to allow the case to be re-opened in or - •dertohear corroborative evidence, after it had been heard and submitted by the parties. The whole matter addressed itself to the discretion of the court, and the facts ■disclosed do not show that the discretion was abused.
Among the grounds assigned in support of the motion for a new trial were, that the court refused and neglected to have the issues of fact tried by a jury, and erred in trying the issues of fact. With reference to this it may be said that the whole theory of the suit was that it was a suit in equity; the record nowhere shows that a jury was requested by the plaintiff, or that any objection was made to the court trying the issues of fact without a jury. But besides this, this objection is not only untenable, but absurd, from the fact, shown by the above recital, that the court never tried the case at all. The case was in the form of a suit in equity praying for equitable relief ; and the court, being of opinion that the only substantial relief which could be granted would be in the form of damages as in an action at law, took the view that the action would have to be dismissed and tried in the form of an action at law. In this view we think the •court was in error.
The bill recites, and the testimony establishes, a case ■of the most shameful oppression and extortion. The plaintiff was a married woman, having in her care a sick ■child, and her husband was prosecuting against her a suit for a divorce. She was in destitute circumstances, and applied to the defendant, C. F. Betts, for a loan of money •upon the security of a mortgage upon her furniture; He went to her house, took an inventory of her furniture,
About this time the defendant Brandon appears opportunely upon the scene. He was a dealer in' second
Of the fifty-five dollars which Brandon gave for the furniture, fifteen dollars went to Mrs. Kelly to discharge her lien; forty dollars was handed over by Brandon to O. F. Betts, of which he gave back $2.60 to the plaintiff, as he testifies. He was gracious enough to give her this
We have recited the foregoing facts from the testimony, which is given in the bill of exceptions in a somewhat abridged form. The petition recites these facts substantially as the evidence tends to prove them. The petition recites, in its third paragraph, that when the claim was first made by the defendant C. F. Betts that the plaintiff should pay interest at the rate of $3.74 per month (should be $3.75), she remonstrated, but was assured by the defendant and his father, Robert H. Betts, that it was legal and just. She also states in the fourth paragraph that she consented to Brandon taking the property, believing that if he did not do it the defendant C. F. Betts would take it, and leave the debt due to Mrs. Kelly unpaid. In the fifth paragraph she again recites that the defendant C. F. Betts assumed and claimed a lien upon the property for the sum of $37.50, and interest thereon, as already stated, claiming that he had a right to, and did restrict the plaintiff in the storing and use of the furniture to such places only as he consented to, and often threatened to the plaintiff and others in charge of the furniture, and to the plaintiff’s friends, that, in case of default or delay in the payment of the monthly interest, so called, of $3.74, he would take the furni
The petition concludes by praying for the following relief: 1. That the mortgage be declared fraudulent and void and be delivered up to her and discharged of record. 2. A judgment for the amount of her damages in the premises, less such equitable amount as shall be due from her. 3. For general relief.
It is very clear that this petition states a case entitling the plaintiff to equitable relief on two different grounds : 1. If the agreement between her and the defendant was that the defendant should loan her twenty-five dollars upon interest at the rate of ten percent, per month upon the security of a mortgage of her furniture,
The plaintiff’s right to the more substantial relief which she seeks, upon the first ground above stated, viz., that the defendant C. F. Betts fraudulently filled out above her signature and put upon record a contract which, she never made, would be clear, but for the fact of her voluntary waiver of her rights in the premises, after being apprised of what the defendant C. F. Betts had done, by making three several payments of the extortionate usury which he required her to pay. These subsequent payments, if made with knowledge of her legal rights in the premises, were equivalent to a ratification of the act of the defendant in filling out the mortgage as he did; but if they were made in ignorance of her legal rights in the-premises, which ignorance was promoted or induced by the defendants, or taken advantage of by them, in representing to her that the mortgage was a valid lien upon her furniture, then the payments would not conclude' her; the maxim volenti non fit injuria would not apply, and she would be entitled to substantial relief. It is to be observed that the petition does not charge in so many
The rule on the subject of the right of relief inequity, on the ground of mistake of law, is this : As a general rule such right does not exist. Every person is presumed to know the law, and no person will be heard in a court of justice to allege, in extenuation of his own fault, or as a ground of relief, his ignorance of the general law of the land. But the rule does not apply in respect of the ignorance of a person as to his rights in a particular case, especially where that ignorance is superinduced by the misrepresentation or fraud of the other party. The rule is thus stated by a writer of recognized authority : ‘ When a man, through misapprehension or mistake of the law, parts with or gives up .a private right of property, or assumes obligations upon grounds upon which he would not have acted but for such misapprehension, a court of equity may grant relief, if, under the general circumstances of the case, it is satisfied that the party benefited by the mistake can not in conscience retain the
Most of these elements, which separately are sufficient to take a case out of the general rule that equity will not relieve a party on the mere ground of mistake of law, concur in the case before us, if the allegations of the petition and the plaintiff ’ s testimony be true. There was-here ‘‘ suspicions of fraud,” “ misrepresentations,” “imposition,” “undueinfluence,” “unconscionable advantage,” on the one side, and, if not “imbecility,” at least, ‘ ‘ credulity," on the other; and, what is more, a feeling on the part of the plaintiff that she was absolutely helpless in the hands of the defendants.
Again, the monstrous disproportion between the ben
We do not suppose it necessary to cite authorities to the proposition that fraud is a ground of relief in equity. Fraud is one of the recognized heads of equity jurisdiction. In respect of fraud the j urisdiction of equity is concurrent with that of law. Stewart v. Caldwell, 54 Mo. 536. Moreover equity has jurisdiction on the ground
The circumstance, that the only relief to which a plaintiff maybe entitled may be a judgment for the recovery of money, does not oust the jurisdiction of equity. This is especially so where the j nrisdiction of equity attaches on the ground of some other form of relief prayed for, as where the plaintiff prays for the cancellation of a written instrument obtained through fraud. Upon this subject it is said by the late Professor Pomeroy in his work on Equity: “ If a coart of equity obtains jurisdiction for the purpose of granting some distinctive equitable relief, such, for example, as the specific performance of a contract, or the rescission or cancellation of some instrument, and it appears from the facts disclosed at the hearing, but not known to the plaintiff when he brought the suit, that the relief prayed for has become impracticable, and the plaintiff is entitled to the only alternative relief possible, of damages, a court then may, and generally will, instead of compelling the plaintiff to incur the double expense and trouble of an action at law, retain the case, decide all the issues involved, and decree the payment of merely compensatory damages.” Pom. Eq. Jur., sect. 327.
The principle was thus stated by Judge Wagner : “It is a well established rule that when a court of equity once acquires jurisdiction of a case, it will retain it to do full and complete justice. It will sometimes give damages, which are generally recoverable only at law, in lieu of equitable relief, where it has obtained jurisdiction on other equitable grounds.” Holland v. Anderson, 38 Mo. 55, 58; quoting Wiswall v. McGown, 2
Instead of this, the cause was not tried at all. Possibly the bill of exceptions, although the testimony is presented in narrative form and manifestly with considerable abbreviation, might afford ground upon which a decree could be made in this court in favor of the plaintiff for substantial relief ; but we think that in such a case, before we should try the case upon the evidence, it should be heard by the circuit judge sitting as a •chancellor. The witnesses will be before hinthe will hear their testimony, observe their manner of giving it, and have opportunities of weighing it which we do not possess. We shall be better prepared to decide the case upon its merits when we shall have his decision upon the facts which may be presented upon another trial. W e therefore, think that we exercise our jurisdiction most wisely if we reverse the judgment and remand the cause, with directions to the court to grant a new trial, and to proceed therein in conformity with the principles stated in this opinion. The plaintiff should be allowed to amend the petition, if desired, so as to charge mistake of law on the part of the plaintiff, and so as to make the
The judgment will be reversed and the case remanded. It is so ordered.