131 Ky. 631 | Ky. Ct. App. | 1909
Opinion op tbce Court by
Affirming.
As it is admitted in the brief of counsel for appellant that tbe latter ha's abandoned' the theory that appellee Charles J. Cronan was. the agent of the Louisville school board in the^transaetion hereinafter referred to, we shall address ourselves to the sole question whether or not the second paragraph lof appellant’s petition states a cause of action. That paragraph is as follows:
“Comes the plaintiff, Marion W'. Ripy, and for a second paragraph to Ms amended petition states: That he is a resident of the city of Louisville, Jefferson county, Ky.; that he is the owner of real and personal property in said city, and as such is a taxpayer, and that the taxes collected of him by the city of Louisville are devoted, among other tHngs, to the support and maintenance of the city’s public schools. Plaintiff states that he was diuly elected at the November election, 1905, a member of the Louisville school beard; that he qualified as such and took the oath of office, and has been since said time and is now a legally qualified and acting member of the Louisville school hoard from1 the Forty-eighth legislative district in Jefferson county, Kentucky. Plaintiff states that the Louisville school board is a corpor*634 ation created and existing under and by virtue of the laws of the State of Kentucky, with power to sue and be sued, contract and be contracted with, and has charge of the purchase and sale of school property and general charge and' supervision of the public school system of the city of Louisville. Plaintiff states that the defendant Charles J. Cronan is a regularly licensed and practicing real estate agent in the city of Louisville, and was such at the time of the happening of the matters hereinafter stated.
“Plaintiff states that heretofore one Edmonia Shannon was the owner of and in possession of two lots of ground on Pearl street, between Floyd and Preston streets, in the city of Louisville. Plaintiff states: That heretofore the defendant, the Louisville school board,, bought the property above mentioned of Mrs. Edmonia Shannon through Charles J. Cronan, a defendant herein. He says that ai the time of the purchase of said property the defendant Charles J. Cronan caused to be presented to the Louisville school board and did present to the Louisville school board an option upon said property signed by Edmonia Shannon agreeing to dispose of said property to the Louisville school board for the cum of $5,985, and at the time said option was presented to the Louisville school board, and at the time it was accepted by the Louisville school board, and at the time said sum wa;s paid over by the Louisville school board for the purchase of said property, the defendant Charles J. Cronan had in his possession and had caused Edmonia Shannon to execute an agreement by which she was to sell and dispose of said property to the Louisville school board for the sum of $3,100. That said sum of $5,985 was paid by the Louisville school board for said property upon the representa*635 tions made to the said hoard by the defendant Charles J. Cronan that said snm was the lowest snm at which said property could be purchased. Plaintiff says thiat the defendant the Louisville school board, acting upon the assurances and information given it by the defendant diaries J. Cronan, paid said sum of $5,985 for said property, when in fact said property was purchased for the sum of $3,100, and the difference between the said sums, to-wit, $2,885, was obtained from said school board through fraud, deceit, and misrepresentation, and is now illegally and wrongfully withheld by said defendant Charles J. Cronan.
“Plaintiff states that, at the time the defendant Charles J. Cronan made such representations to the Louisville school board, he knew that he was deceiving the Louisville school board, and that the Louisville school board was innocent of said fact that said property could be purchased for the sum of $3,100, and the Louisville school board believed and relied upon and acted upon the representations made to it by the defendant Charles J. Cronan. Plaintiff says: That the defendant Charles J. Cronan at the time had a written agreement with Edmonia Shannon, by which said property could be purchased for the sum of $3,100; that the Louisville school board did not know of said fact until long after the purchase of said property and long after it had paid the sum of $5,985 for the same; that said option of $5,985 was signed by Edmonia Shannon and given directly by Edmonia Shannon to the Louisville school board; that said agreement and option on the part of Edmonia Shannon to take $3,100 for said property was never shown to the Louisville school board', and the Louisville school board knew nothing, of its existence and believed and relied upon the assurance of the*636 defendant Charles J. Cronan that said property could be purchased only for the sum of $5,985. Plaintiff says that the sum of $5,985 was paid for said property on the 6th day of March, 1906, and that by reason thereof and the facts hereinbefore set out the defendant Charles J. Cronan is now indebted to the Louisville school board in the amount of said difference, to-wit, $2,885, with interest thereon from said date, and that no part of said sum has ever been paid, and that demand has been made therefor, and that same has been refused. Plaintiff further states that the defendant Louisville school board has, before the institution of this action by the plaintiff, refused to institute or prosecute any action therefor against the defendant Charles J. Cronan to recover from him the amount wrongfully taken from it as aforesaid, and which sum belongs to the Louisville school board, and this plaintiff now, as a taxpayer of said city and as a member of said school board, brings this action and prosecutes this- action for the benefit of the Louisville school board, which is made a party defendant.
“'Wherefore the plaintiff prays that the Louisville school board' be given' judgment against Charles J. Cronan for the sum of $2,885, with interest thereon from the 6th day of March, 1906, and for his costs and the costs of the defendant the Louisville school board, and for all proper relief.”
The general rule applicable to cases of this kind is that, if no confidential relations exist between the parties, and if the facts misrepresented or concealed are not peculiarly within the knowledge of the party charged, and the other party has available means of knowing the truth by the exercise of ordinary prudence and intelligence, and nothing is said or done to prevent inquiry by him, he must make use of his
The particular charges brought against the defendant are: That he presented to the Louisville school board an option on the property purchased by it, signed by Edmonia Shannon, by which she agreed to dispose of the property to the Louisville school board for the sum of $5,985'; that during the negotiations for the sale, and at the time the sale was effected, Grohan had in his possession an agreement executed by Mrs. Shannon to sell and dispose of said property to the Louisville school board for the sum of $3,100; that the defendant falsely represented that $5,985 was the lowest sum at which said property could be brought. In determining the question whether these allegations, if true, show fraud on the part of the defendant, we must take into consideration the fact that the property involved in the transaction was real estate, and that it consisted of two lots of ground located in the city of Louisville. The property was there for the inspection of the members of the board. They could have inspected it individually, collectively, or by
Appellant relies upon the case of Kice & Co. v. Porter, 53 S. W. 285, 21 Ky. Law Rep. 871. In that case the proof shows: That appellee wanted to buy a house and went to appellant’s office, knowing that he was a real estate agent and had property for sale, for the purpose of having it shown to her; that he had a man in his office named Boswell to take her in his buggy and show her all the property in Ms hands for sale; that she liked best a certain piece of property, and offered $6,500 for it, but it was then priced at $7,500 on the books. She then intimated that she would pay $7,000, and suggested to Boswell that she would see Mr. Kellar, the owner of the house, and see if he would not take less than $7,000 for it. Boswell told her this was no use, that Kellar would not take less than $7,000; that they had the matter in their hands, and it would d'o no good to see anybody but them. A day or two after this Kellar came to Kioe’s office and agreed to take $6,500 for the property. That night Boswell went to appellee’s home and sold her the property for $7,000. Appellee brought suit for the sum of $500, charging that appellants had appropriated it to their own use and had obtained it from appellee by fraud. The facts of the above case are different from those in the case at bar. In this case no effort or artifice was used by Cronan to prevent inquiry or investigation by the members of the school board. In the case cited the proposed purchaser desired to see Mr. Kellar, the owner of the property, and ascertain whether or not he would take less than $7,000 for it. Boswell told her this was no use, that Kellar would not take less than $7,000 for the prop
For the reasons given, the second paragraph of the amended petition did not state a cause of action against appellee, and the judgment of the lower court is therefore affirmed.