312 S.W.2d 163 | Mo. Ct. App. | 1958
This suit was filed in the Circuit Court of Buchanan County and was sent to Andrew County on plaintiffs’ application for a change of venue. The petition charged fraudulent representations in the sale to plaintiffs of a new house located just outside of the city limits of St. Joseph and built by defendant Ralph Hendrix. The jury returned a verdict for plaintiffs awarding damages in the amount of $5,500, and judgment was rendered accordingly, which judgment, after voluntary remittitur by plaintiffs of $2,000, was by the court reduced to $3,500, and defendants’ motion for new trial overruled. Defendants have appealed.
Defendants do not contend that plaintiffs did not make a submissible case and thus there is no need to set forth the evidence. Their sole contention made here is that the court erred in giving Instruction I on behalf of plaintiffs. That instruction is as follows:
“The Court instructs the jury that if you find and believe from the evidence that on or prior to the date of October 25, 1954, Ralph Hendrix undertook to induce plaintiffs to purchase property located at 2023 Sun Valley, near St. Joseph, Missouri, if so; and that said Ralph Hendrix, as aforesaid, stated and represented to plaintiffs
Defendants first complaint is that the . instruction authorized a recovery against defendants for alleged failure of defendant Ralph Hendrix to perform acts promised to be done in the future, such as plastering, sanding, etc., which they assert did not amount to actionable fraud. There can be no doubt that the general rule is as stated by defendants that fraud cannot be predicated upon a mere promise, even though accompanied by a present intention not to perform, because the promise is not the misrepresentation of an existing fact. Reed v. Cooke, 331 Mo. 507, 55 S.W.2d 275, 278. However, there is a well recognized exception to the above rule in “that false representations and promises as to what will result in the future, when made by one
Defendant Ralph Hendrix testified that he had been a builder for 22 years, and that he had built from 75 to 80 houses in and around St. Joseph. Plaintiff Mary Nichols testified that there were a few minor things to be done to the house before the sale was consummated and that “Mr. Hendrix told us that those things would be done. * * * We took him from the First Federal (the loan company) out to the house and I went on the inside with him to show him the things that he said he would do and he made the statement that he had to do that because the First Federal would not pay him until that house was completed.” In view of Mr. Hendrix superior knowledge based upon his long experience as a builder, his statement that he had to fully complete the house otherwise “the First Federal would not pay him” amounted to the statement of a fact under the authorities above cited.
Defendants next say that the instruction authorized a recovery if defendant Ralph Hendrix represented that the gas bills for heating the house would not exceed $12 per month, which they assert “is a mere matter of opinion, promise or expectation, and not actionable fraud.” Mrs. Nichols testified as follows: “I asked him about the furnace. Í had never seen a furnace with the heat up in the ceiling and the house seemed big and I asked him if the furnace would heat the house and he said that the furnace was guaranteed to heat the house and I asked him how much the gas bill would run and he said there was no way on earth that it could run over $12 a month in the coldest weather.” Under the rule announced in the cases cited in the preceding paragraphs this representation also amounted to the statement of a fact and not, as defendants contend, a mere matter of opinion or expectation.
Under this point defendants chiefly rely upon the case of Burlison v. Weis, Mo.App., 152 S.W.2d 201, 203, where the court held that the representation of an agent that the heating bill on a plant delivered to plaintiff would not run over $75 or $80 per year was not actionable fraud. It will be noted, however, that the court in that opinion also said: “To amount to actionable false and fraudulent representations, such representations must have been as to an existing fact or known by the one making the representations, from his superior knowledge, to have been untrue at the time such representations were made. Of the latter, there was no evidence at all.” That is the difference between that case and the case at bar.
In sub-paragraph (c) of their Point I defendants complain of the use of the words “any artifice” in the instruction. This language appearing in an instruction involving fraud had the specific approval of our Supreme Court in the case of McFarland v. Carver, 34 Mo. 195, 196, 200.
Next, in sub-paragraph (d) of Point I defendants say that the instruction assumes that false representations were made by defendant Ralph Hendrix. The contention lacks merit. A reading of the instruction will disclose that each situation hypothesized is followed by the words “if so”, or “if you so find”, or similar language.
Finally defendants complain of the use of the phrase “and the like” appearing in the required finding that defendant Ralph-
Finding no error in the instruction prejudicial to the defendants, the judgment is affirmed. All concur.