141 Mo. App. 223 | Mo. Ct. App. | 1910
This suit was brought before a justice of the peace to recover the purchase price of a gas
Defendant admits he signed the contract on which the action is founded, but says he did not read it and contends that it does not express the real agreement made by the parties. The court properly rejected the defenses predicated on defendant’s failure to acquaint himself with the contents of the, instrument. He is an intelligent farmer who can read and write and who is experienced in the transaction of business. The only reason he gave for not reading the contract before-signing it is that he was in a hurry. This is no excuse in law. [Breeder’s Co. v. Wright, 134 Mo. App. 717.] We eliminate from the case, as did the trial court, all of the defenses except the contention that defendant was induced to enter into the contract by false and fraudulent representations of plaintiff respecting the merits of the subject of the transaction.
Facts and circumstances in evidence pertinent to this defense thus may be stated: An agent of plaintiff called on defendant at his residence and solicited him to install therein a machine to manufacture acetylene gas for illuminating purposes. Gas is produced in such machines by the chemical action of water on carbide. Fifty pounds of carbide are placed in a tank with fifty gallons of Avater, and this quantity of material is supposed to generate gas during a period of three months or more. The agent had a model of the machine which he operated in a darkened room with entire success. The model had no drain from the tank and the deception which it is claimed the agent practiced consisted of the impression he purposely made on the mind of defendant that a drain was not necessary, because the union of water and carbide in the proportions stated would result in the final consumption of both. He did sot
It is conceded the action of water on carbide does not greatly diminish the quantity of material in the tank and that when chemical activity ceases, there remains approximately fifty gallons of waste — a sort of whitewash — which must be removed either by drainage or by the laborious use of buckets. We agree with the trial court in the finding of fact that the agent, without resorting to direct falsehood, cunningly and artfully contrived to create in defendant’s mind the impression that the generation of gas ultimately destroyed its creative elements and left no refuse. We do not overlook the answer of defendant in his testimony to the effect that the agent stated that fifty gallons of water and fifty pounds of carbide “would run me three or four months before I would have to take it out.” We accept at par that answer, which is in the nature of an admission, despite the insistence of counsel for defendant that in some way it was interpolated in the record. But in the light of all the facts and circumstances before us (some of which we have not stated), we approve the finding of the court that defendant had no knowledge when he signed the contract that there would be refuse from the tank that would have to be removed in some manner. The finding is supported by substantial evidénce and this being a law case, it will be treated as the verdict of a jury. [McClanahan v. Payne, 86 Mo. App. 289;
Lid decejrtion of this character justify a rescission of the contract by defendant? To be entitled to rescind a contract on the ground of fraudulent representations, the vendee must prove (1) that false representations of material facts were made to him with the intent to deceive; (2) that he believed them to be true; (3) that his reliance upon them was an act of ordinary prudence; ■and (4) that they influenced his action. [Wannell v. Kem, 57 Mo. 478; Funding Co. v. Heskett, 125 Mo. App. 516.]
It cannot well be denied that the fact of whether or not the machine would produce refuse to be removed in some way was material and that its importance Avas recognized by the agent of plaintiff, nis artfulness in anticipating and allaying any suspicion in the mind of defendant demonstrated his realization that were the truth kndwn to defendant, the sale could not be accomplished. The rule of caveat emptor which requires parties to a contract to deal at arm’s length does not obtain where the parties do not stand on an equal footing. [Cahn v. Reid, 18 Mo. App. 130; Leicher v. Keeney, 110 Mo. App. 299; Barnard v. Duncan, 38 Mo. 186; Lumber Co. v. Dent, 121 Mo. App. 113.] The parties here did not stand on equal ground. The machine was a scientific device. Plaintiff knew all.about it; (defendant, a plain farmer*, did not know and could not be expected to probe intelligently into things of expert knowledge. He Avas compelled to rely on plaintiff for information respecting such things, and it was the duty of plaintiff to apprise him of all material facts of purely scientific cognizance. In such cases the concealment of material facts is of itself a misrepresentation. “The vendor must disclose a.ll material facts of which he knows the vendee to be ignorant. There may be fraud in suppressing and concealing material facts and circumstances, as well as in direct misrepresentation, if
It cannot be said as a matter of law that defendant failed to measure up to the standard of ordinary care in suffering himself to he 'deceived by the statements and conduct of the agent. The characterization of his conduct is presented by the evidence as an issue of fact, and since we are satisfied that the finding of the court on this fact is supported by substantial evidence, we shall not disturb it. A shrewder man than defendant might have made a more thorough inquiry into scientific facts, but we think the court, as a trier of fact, might well conclude that he acted as an ordinarily careful and prudent person would have acted in his situation. We approve the judgment of the trial court that the sale was procured by false and fraudulent representations; further, we find the point urged by plaintiff that, in rescinding the sale defendant did not offer to restore the status quo, is not well taken.
The judgment is affirmed.