42 Mo. App. 101 | Mo. Ct. App. | 1890
This is an action commenced in the Nodaway circuit court, by the plaintiffs against the defendant, somewhat in the nature of an action for deceit and of trover and conversion. The petition contained three counts, essentially the same, except as to date, amount and description of merchandise. At the trial, there was a finding for the defendants on the first count; there remains to be considered the second and third counts. The second count, being the duplicate of the others, as already indicated, alleged: “Plaintiffs, for
The answer was a general denial. There was a trial, where considerable evidence was adduced on both sides, and a number of instructions asked, some of which were given, and others refused, but none nor neither of which is it necessary to set out in this connection. The plaintiffs had judgments on two counts of the petition, from which defendants have appealed.
I. The defendant assails the judgment on the ground that the petition fails to state a cause of action. Are the substantive facts therein stated sufficient to constitute an action for deceit or fraudulent representation ? It will be observed that the petition charges that the shipment and delivery of the goods, to Daggett were made upon the false and fraudulent representations of defendants, and relied upon by plaintiffs, etc. The doctrine is well established by the English cases that, in order to subject a defendant to damages for false recommendations as to the credit of a third person, the representation must not only be false, but fraudulent, with an intent to deceive. The foundation of this just principle is the ruling made in 1789, in Pasley v. Freeman, 3 T. R. 51. In Allen v. Addington, 7 Wendell, 10, Chief Justice Savage collates and comments upon the
A general allegation of fraud is not sufficient; the facts constituting the fraud should be set out and detailed in the petition. Reed v. Bott, 100 Mo. 62; Smith v. Sims, 77 Mo. 269; Bliss on Code Pl. [ 2 Ed.] sec. 211. In Plant Seed Co. v. Michel Plant Seed Co., 23 Mo. App. 579, Judge Rombatter, in delivering the opinion of the court, remarks, “that but for the allegations of the defendant’s fraudulent intent, coupled with an injury therefrom, the petition would have been demurrable.” I, therefore, think that from what has been said, the plaintiffs’ petition in its allegations of facts falls far short of containing the requisites for sustaining the actions of deceit, which have been declared by eminent authority to be “the telling of an untruth, knowing it to be an untruth, with the intent to induce a man to alter his conditions, .and his altering his conditions in consequence, whereby he sustains damages” (Brown v. Castles, 11 Cush. 348), and it is, therefore, vulnerable to the defendants’ assault on that account-
I am inclined to think the petition sufficiently states a cause of action for trover and conversion. While it contains some allegations that are probably unnecessary to support a cause of action of that kind, and which may be disregarded as redundant, yet I think the essentials of this action are sufficiently well stated to support the judgment. '■
The third instruction is not a correct statement of the law. It told the jury that the plaintiffs could recover the value of their goods sold by Daggett to defendant unless they were bona fide purchasers for value; and for value meant that they must have actually paid to Daggett some new consideration other than, and independent of, the pre-existing debt due from Daggett to them, etc. Whatever may be the rule of law on this subject in other jurisdictions, the appellate courts of this state are now all agreed that, “when goods are sold and delivered to a creditor by his debtor in payment of an antecedent debt, such creditor, if he acts in good faith, is a purchaser for a valuable consideration, and will be protected against any claim of the original owner just as he would have been had he paid anew a consideration for the goods at the time he purchased them. And that the absolute extinguishment of
The fourth instruction for the plaintiffs is likewise erroneous. It told the jury that if the defendants, at the time they wrote the letter to plaintiffs, honestly believed Daggett to be solvent when in fact he was insolvent, and that Daggett made false representations as to his solvency, and that the letter was one of the causes inducing plaintiffs to sell Daggett the goods, or some part thereof, on a credit, and that afterwards defendant received any part of said goods so sold in payment of a debt due them from Daggett at the date said letter was written, then the finding should be for plaintiffs, etc. It asserts a proposition of law that is not countenanced by any of the authorities in this state. An innocent misrepresentation by mistake cannot be made the grounds of a personal action for fraud, however it may operate on the contract itself. The now generally accepted doctrine is that in order to support a personal action for fraudulent representations it is not sufficient to show that a party made statements which he did not know to be true and which were in fact false ; there must be fraud distinguished from mere mistakes. The scienter is the very gist of the action as has already been stated, and must be proved. Dunn v. White, 63 Mo. 181; Hartford Ins. Co. v. Matthews, 117 Mass. 195.
The twelfth and fifteenth instructions asked by the defendants and refused by the court should have been given, as the propositions of law therein asserted are in harmony with views herein expressed.
III. The letter from plaintiffs to defendants and the answer thereto which were read in evidence, over the objections of the defendants, were as follows :
“ Boston, December-, 1887.
“Mess. Manning, Gushing & Go.
“ Will you be kind enough to give us such information as you may have regarding the financial strength, honesty and promptness of W. A. Daggett, Maryville, Missouri ? Is it your opinion that we will be safe in selling to them to the amount of $-on four months’time? Any information which you may give will be held in strict confidence, and a favor we shall be pleased to reciprocate.
“ Yours respectfully,
“ Rbdpat.ii Bros.
“We understand that you sell him largely and that you are his largest creditor. Hence the liberty of our inquiry. , We shall be pleased to reciprocate.
“R. Bros.
“ Answer on the same sheet.
“We have found Mr. Daggett very reliable, and is having a fair trade as he reports "to us. We fill his orders, and we regard him as reliable in all business •transactions.
“L., M. & C.”
The question here presented is whether these letters were admissible in evidence on the charge of false
The petition does not charge defendants with the suppression of the truth, but with an affirmative misstatement of a fact. There was no issue of suppressio veri tendered by the petition, and hence I do not think the defendants’ letter admissible in evidence on that ground. Applying these rules to the representations of the defendants’ answer to plaintiffs’ letter of inquiry, I do not think that either per se or in connection with any other evidence adduced in the case, that they constituted any legal grounds for an action for false
cause remanded ;