164 Mo. App. 22 | Mo. Ct. App. | 1912
This is an action for fraud and deceit commenced in a justice court by the filing of the following statement: M. A. Dudding to
Bishop Stratton, Dr.
To damages sustained from misrepresentation as to value, age and condition of one certain milch cow, bought from the said M. A.
Dudding, on Feb. 8, 1910 ..............,.$25.00.
A trial in the circuit court where the cause was taken by appeal resulted in a verdict and judgment for defendant and plaintiff appealed. Counsel for defendant attack the sufficiency of the statement to plead a cause of action and invoke the well-recognized rule that a mere charge of fraud in a petition without specification of the act or acts which constitute the alleged fraud amounts to nothing and cannot be accepted as the statement of a good cause of action. - [Nagel v. Railway, 167 Mo. 1. c. 96, and cases cited.]
But that rule does not apply to justice courts where technical accuracy is not required and where a statement is deemed sufficient if it advises the defendant of the nature and amount of plaintiff’s demand with sufficient definiteness to bar another action for the same cause. [Iba v. Railroad, 45 Mo. 469; Polhans v. Railway, 45 Mo. App. 1. c. 157; Hall v. Railroad, 124 Mo. App. 664.] The statement before us is sufficient especially as to an attack made for the first time after verdict. The parties to the action are farmers and the subject of dispute is a milch cow plaintiff purchased for fifty dollars at an auction sale defendant had at his farm. In substance the evidence of plaintiff tends to show that defendant represented at
The gist of the cause of action asserted by plaintiff is not a breach of warranty, express or implied, •but the tort of false and fraudulent representations. An action of the latter character cannot be predicated of representations as to facts that fall within the scope of the operation of the rule of caveat emptor. That rule, the vigor of which remains unimpaired, demands of a buyer the exercise of reasonable care and prudence in his purchases. He must avail himself of an opportunity to examine the article offered for sale and make reasonable use of his skill and judgment to discover defects. As to defects that are open to such inspection he has no right to rely on the representations of the seller. As to those matters of which it fairly may be said the vendor and vendee stand on equal ground, the vendee must take care of himself or else protect himself by a contract of warranty. Pie is not allowed to be negligent and then to complain
Applying these rules to the case in hand we conclude that the evidence of plaintiff tends to support his pleaded cause and that the court did not err in sending the ease to the jury. We cannot say as a matter of law that a reasonable examination of the cow by plaintiff prior to the sale and under the circumstances of his situation would have disclosed the existence of the defects. The jury were entitled to indulge the inference that these defects were latent, that defendant made false representations concerning them either with the deliberate intent to deceive or ignorantly, but with reckless indifference to truth, and that plaintiff relied on these representations and acted on them believing them to be true.