184 Mo. App. 502 | Mo. Ct. App. | 1914
The respondent recovered a judgment against the appellant in the sum of $1025. His petition alleged that he purchased of the defendant 104 acres of land in Dent county, sixty-four acres of which lay on one side of a certain public road and the remaining forty acres of which lay on the other side of said road; that he, the plaintiff, resided in St. Louis and was not familiar with the numbers of the land which he was purchasing; that defendant took plaintiff and his wife out to look over the land and pointed out the sixty-four acre tract (about which there is no dispute as to defendant’s title) and a forty acre tract directly across the road. The plaintiff alleged that the defendant pointed out and told him that this forty acre tract directly across the road from the sixty-four
“Plaintiff says that by reason of the premises the said $1100 so paid by plaintiff to defendant has been wholly lost to plaintiff and that plaintiff has further been damaged in the sum of $1000 on account of trouble and expense in moving to and from said farm and for loss of time. Wherefore plaintiff prays judgment against defendant in the sum of twenty-one hundred dollars and costs of this suit.”
Defendant for answer alleged that he contracted to sell the plaintiff the 104 acres which he, the defendant, owned and had title to; that is, his allegation is that he contracted to sell to plaintiff the forty acres which lay farther up the road and not the forty acres
The plaintiff’s evidence sustains the allegation of the petition as to the farm contracted for, the failure to furnish an abstract, or give a warranty deed to any land, and the failure to convey the forty acres which the plaintiff says he contracted for; and plaintiff further proved (which, in fact, was admitted) that he had paid $1100 to defendant in the course of their dealings with reference to this transaction.
At the close of the plaintiff’s case he was permitted over (¿he objections and exceptions of the defendant to amend his petition by inserting the words, “That defendant agreed at that time that he would make arrangements satisfactory to plaintiff, and that if he failed to do so he would refund to plaintiff the money paid by him. ’ ’
The instructions of the court limited the amount of plaintiff’s recovery to such sum as the jury found he had paid to the defendant, less any indebtedness or set-off in defendant’s favor by reason of having become surety for the plaintiff. None of the instructions permitted a greater recovery than the amount paid by plaintiff to defendant, which, as before stated, was $1100.
We have examined the abstract and brief of counsel and are convinced that no reversible error was committed in the introduction of evidence or in the giving or refusal of instructions, provided the trial court’s action in permitting the amendment of the petition can be sustained.
The appellant contends that the amendment to the petition changed the cause of action and hence should not have been permitted, the trend of the argument being that the original petition sought to recover damages occasioned by fraud and deceit, whereas the amendment changed the action to a suit for rescission. We are cited by counsel for appellant to the case of The Enterprise Soap Works v. Sayers, 51 Mo. App. 310. In that case, one count was based on the theory that there was no sale and the other count was based on a warranty that necessitated a sale; hence the court properly held that these two counts could not stand in the same petition because they were utterly inconsistent.
In our case, the plaintiff’s petition counts on “no sale” because of fraud and deceit, and the amendment in nowise recognized or treated the transaction set-forth in the original petition as a sale, but proceeded upon the theory that a fraud had been perpetrated, and in fact recognized that a mistake had been made in the numbers and lay of the land, and plaintiff says he was led into the mistake through fraud on the part of the defendant. The defendant denies that he agreed to sell plaintiff what plaintiff alleges he thought he was.buying, and avers that he practiced no fraud on the plaintiff.' The answer then sets up the fact that the plaintiff went into possession of the land under the original contract and had held it for a year or more with knowledge that he was not getting the forty acre tract which he alleged he should get. The amend
"We are also cited to the case of Brown v. South Joplin Lead & Zinc Co., 231 Mo. 166, 132 S. W. 693. There is no doubt that the law is well settled that where a party discovers a fraud practiced on him in the making of a contract, he cannot, with that knowledge, make a new contract for a valuable consideration, and afterwards seek to recover for fraud in the making of the original contract. This proposition is also sustained by the decision in the case of Ryan v. Miller, 236 Mo. 496, 139 S. W. 128. But we are not confronted with such a condition in this case. The plaintiff here was entitled (according to his original contract) to receive a good title to 104 acres of land which he describes in his petition as well as the immediate possession to that land. His amendment as to a new agreement was to the effect merely that he did take posesssion and remained in possession upon the agreement that some satisfactory arrangement would be made. Taking possession of the farm was no more
The judgment is affirmed.