*1 430 SUPREME COURT OF MISSOURI.
Thompson Lyons. by appellant, nor does it conflict with either Sections.
or1 6 of Article of our Constitution. foregoing,
In of the view we reverse remand the cause proceed with directions the trial court with same in accordance tbe heretofore ex- views pressed. Mosley, concur. CG.,
White foregoing opinion PIER CURIAM:—The Raile,y, hereby adopted opinion C., is of the court. All judges' of the concur.
HUGH A. et al. v. THOMPSON TIMOTHY J. LYONS B. SAMUEL STROTHER, Administrator of Appellants.
Estate FRED MEYN, Two, Division March 1920.
(cid:127) 1. PLEADING-: Cause of Action: Fraud and Deceit. al- A leging represented that defendants a certain tract of 10.4 acres acre, $3000 was worth it could be bought relying . sum, representations plain- 'for such on said put up purchase tiffs aof half interest in the land, said were false made to deceive plaintiffs, defraud states cause of action with sufficient support to authorize clearness the introduction of evidence to it, being there no demurrer filed. Jury. jury
2. FRAUD AND DECEIT: Verdict The verdict of a credibility in an for fraud and action deceit concludes the necessary who facts witnesses testified substantial support petition stating a. cause of action. Ap- Land Purchase of Situate Another State: 3. LIMITATIONS: practiced plicatory deceit, for fraud and an action Statute. In - purchase upon plaintiffs, resulting in the defendants governed question state, of limitations another situate state, foreign transaction occur- since the of such the statute brought state, although in this State. shit-is said red in foreign Diligence. Discovery: The- statute of -: Fraud: occured, providing “an land transaction state brought ground two of fraud” within relief on shall action n Yol. OCTOBER TERM, years, hut that “the action cause of shall deemed to have not be fraud,” discovery accrued until the cannot be held to bar pleaded prov- action sole no facts were *2 diligence en to show that reasonable to the used discover by The said statute has construed the the been of courts fraud.. foreign obligation state to mean that if for no reason exists requires kept consult to the record which the law to- the information, person if of or the source defrauded be circumvented advantage taking opportunity, duty upon- of his no the rests person improve diligence opportunity defrauded to the of learning duty that the which record discloses. No rests the person notice, impart defrauded to examine records do which not private realty company, which the but are records aof to whose right he has no of access. books -: -: -: Recorded 5.-: Deed: of Consideration Supreme Dollar. One The Court of Kansas holds that a record imparts only notice it contains. deed of record a what of reciting pur- is a consideration of not that one dollar notice the price $14,920, $32,400, the land de- chase of instead of which represented plaintiffs price. purchase to fendants That the imposed diligence duty plaintiffs record no on to to use discover the fraud. Fiduciary -: -: -: -: Relation: Partners.
6. plaintiffs partnership had entered into for Where and defendants represented plaintiffs purchase to the land defendants of put plaintiffs induced to was worth money up $16,200 purchase interest, and with the of a half for the bought placed the entire tract their hands defendants thus conveying $14,960, ex- to them one of and a tract deed for fiduciary only dollar, pressed existed there a one a consideration right rely relation, defendants' to and the á. diligence required to discover to use were not false, Limitations did not be- Statute and the that gin they actually the fraud. discovered run to until merely Pleading. plaintiff -: Where -: -:--: date, alleges a certain fraud until discover the he did not peti- sufficiency questioning defendant, without complain petition did trial, tion, goes he cannot diligence Be- the fraud. sufficiently to discover plead reasonable by defendant’s raised is sides, action first to the the bar where occured, the transaction where the state plea the statute (cid:127) alleges con- reply plea plaintiff the facts and in stituting by until certain him a discovered were not the fraud made, sufficiency reply is objection date, to the and no allege complant did not room there diligence fraud. discover reasonable SUPREME COURT OF MISSOURI. 8. -: -: Time Between Death of Defendant and Adminis- elapsing tration. time between the death a defendant anil appointment computing of his administrator is excluded in that, the time the Statute of Limitations has run. So ac- in an deceit, tion for fraud and if the time between when the date up transaction was fraudulent and the date defend- closed when brought years, ant’s administrator in has ex- not been five cluding elapsed the time defendant between the death appointment administrator, and the the action is not barred by the Missouri Statute Limitations. of. Illegal AND DECEIT: or FRAUD Immoral Unawful Contract: Use, Recovery. grant of Official Position: relief refuse Courts by gambling contracts, and other immoral or unlawful either them; them, enforcing damages awarding breach of against parties but where one of transaction defrauded public may policy, deceit for fraud recover action fraudulently money de- from him. So that where obtained put up money for a interest fendants induced half *3 (cid:127) property represented falsely purchased that and the tO' be less, purchased $32,400 further and not be for was worth and could represented for plaintiffs deal the not be that should known county the a' and commissioner the defendants was reason one of they get .drainage the could board and the (cid:127)other a member of deal, cheaper and plaintiffs property known in the if were not expressed plaintiffs put a up deed consideration and gran- only defendants only one dollar and of of one named property developed had been tee, entire afterwards it and by plaintiff’s only recovery action bought their $14,960, a for they theory precluded deceit, is not on fraud scheme, illegal out or contract into an had entered defendants liability defendants if The rule is arose. defendants’ illegal their by use of facts, misrepresentation or an by of certain illegal contract plaintiffs an enter into position, induced official money, defendants plaintiffs thereby of their out defrauded fraud recovery by plaintiffs action cannot resist unlawful. the scheme deceit Damages. person pur- Where one a -: Measure 10. makes joint purchasers another, two or where more chase for one or price joint falsely purchase, represents conducts a property, paid actually greater actually for the than what is damages ac- the amount measure of is the difference between tually paid purchase defrauded and price. the true defendants, plaintiffs So where in an endeavor to induce join tljern purchase represented land, property acre, per bought actually whereas $3000 worth de- per acre, properly, for $1500 fendants less than the court re- 1919. TERM, Yol. OCTOBER Thompson v. directing jury to return verdict
fused an instruction bought a half interest defendants at the time if properly reasonably acre; property per in- but $3000 worth damages, plaintiffs’ jury found if to assess structed paid plaintiffs, de- what difference between defendants the amount and one-half for a half fendants interest paid tract. actually entire grantor for the to the B. Thomas Court.—Hon. Appeal Circuit from Jackson n Judge. Buchner, Affirmed. Trichett, W. Holt and G. G. H. William
John Lucas, appellants. petition suffi- (1) facts does not state The amended against defendants, a cause action to' constitute cient inducing alleged fraud gist The action because: estate, (a) The contract purchase of real the sale writing*.; charged therefore, it must be to be is not applies, parol. presumed Statute of Frauds to rest R. S. 278®, stated. Sec. of action can be cause (b) Knight Rawlings, 205 Mo. 1909; single act fails to amended state part con- either of them which of the defendants or alleged “It must fraud. or conceal the cealed tended to alleged an affirmative character and must be proved.” App. 145- Mo. Musick, State ex rel. v. general allegations (e) alle- other “General fraud *4 being* legal gations, conclusions, are but no facts stated, ’’ peti- reason are insufficient. The amended thati chargp falsely tion fraudulently not defendants does particular thing*. did The amended charges' petition merely that made defendants cer- allege, representations they which, turned out tain to be false, (d) Especially separate replies is this true separate plaintiffs answers filed the defend- separate reply alleged generally it is ants. In each by the conduct of acts and defendants “that each Mo. 28—281 MISSOURI.
434 OP SUPREME COURT y. Thompsori perpetrated surreptitiously secretly . . .
them,
single
a
facts,”
Not
etc.
fraud and concealed
said
624.
Mo.
alleged.
Sammelmann,
Hoester
101
fact
v.
is
specification of
(e)
charge
fraud, without
mere
“A
alleged fraud,
constitute
acts which
act or
pleading.”
v. Trust
nothing in
Newman
amounts to
(f)
seeking
to avoid
bar
444.
Co., Mo.
A
must
fraud,
of limitations on account
the statute
diligence
it.
he
to detect
aver
Shelby County
show that
used due
peti-
Bragg,
(g)
Mo. 300.
v.
135'
charge
it
must
the evidence
must
show,
tion
something
said that
reason of
defendants did
alleged
v.
fraud
sooner. Callan
was not discovered
(h)
alleged
case
Callan,
Thompson v. App. (1) general made 157. As a rule during negotiation show contract, a statement their not intended were face things prophecy existing come, to as a facts, hut representations, however, do not constitute actionable prediction may out to have turn wide of the event the Eailway Bretz- 253i; Mo. been. McFarland 125 v. Co., App.' (2) f elder complained 462. transaction v. 122 Mo. Waddle, having Kansas, occurred State applies. of Limitations of that Statute State years having cause of action more than two accrued prior to the commencement of the the cause was action, barred. of Kansas, 1915, Sec. G-eneral Statutes 6907, being Chap. 17, same Kansas Sec. Laws of Session (a) allegation proof 1909. plaintiffs There is nor neither diligence alleged
used to discover allegation .proof fraud; there is neither nor anything defendants or either of them said did or prevent alleged discovery fraud, and for these are not entitled to reasons recover. Cal- (b) party seeking lan v. Callan, Mo. 346. 175 A avoid the bar of the statute on of fraud, account must aver prove diligence that he used if discover it, power, discovery had means of in held he will be it, County Bragg, known Shelby v. 136 Mo. (c) exception A avail cannot himself of the discovering the statute where the means truth power in his used. Concealment mere enough. silence is not There must be trick some con- suspicion prevent trivance intended to exclude in- Shelby quiry. County Bragg, v. 135 Mo. 300; Callan v. 361; 175 Mo. Callan, State ex rel. 231 v. Yates, Eailways, Mo. 276; v. Johnson '2431Mo. 278; State App. ex rel. v. Brady Hawkins, Mo. 103 251; v. In- App. (d) Co., surance Mo. 180 Mere silence will not excuse the failure to discover the fraud or con- cealment. Hoester v. Sammelmann, Mo. 619; 101 Stark 204 Mo. Zehnder, 453; Scott v. App, Boswell, Mo. Shelby. County Bragg, 610; 135 Mo. Schrock 291; OF MISSOURI. SUPREME COURT *6 Lyons.
Thompson v. (cid:127) plain- (:3i) that mere The fact Duncan, v. S. 610. 189' W. Lyons, upon a defendant, looked and considered tiffs personal constituted a con- in no created friend, wise any such rela- relation, fidential and he did sustain a of “He at most hut friend the law. tion within compensation family for whatever the and received purchase in assisting- in them,” his acts Knight Rawlings, (4) real Mo. 434. The 205 estate. v. excluding by defendants, court erred evidence offered in showing the fair value in real that market 1911 per question in four acre. estate thousand dollars competent purpose This evidence for of show- ing plaintiffs (a) damag-es. suffered no The terms writing, of the were reduced to and the written contract speaks challenged, contract, which is in no it- for wise damages self. The measure action of this char- acter is difference between the market reasonable thing price value sold and the contract thereof. Thompson App. v. Mo. Newell, 118 Pickett v. 405; App. Catsignianis, Wren, 187 Mo. v. 89; Vlates S. 202' (b) W. 441. But in this action cannot be said paid price by defendants indicates market value price paid plaintiffs than by more to defend- ants. “It is axiomatic be fraud, must actionable, damages parties suing Stacey result to therefor. App. v. 184 upon Robinson, Mo. 64. The burden was plaintiffs prove damages suffered recover- able under Catsig- stated rule v. above.Vlates (5) 2021 refusing W. nianis, The S. 441. court erred instruction by M, numbered tendered defendants and refused the court. The substance of this instruction question the real if estate in actual per value acre the time made purchase then the verdict must for the defendants. is the Thompson This rule law as announced in: v. App. Newell, 118 Mo. Vlates v. Catsignianis, 405; 202' S. (6) 441. The refusing W. court erred in give instruc- tion R, numbered tendered tile defendants. in- This struction stated “that there is no element partnership ought in This case.” instruction given. have been 437 TEEM, Vol. OCTOBEE v. testimony, deal throughout call plaintiffs, their undoubtedly its effect partnership, one of plaintiff. Sec. jury returning' verdict allegation An E. essential S. in vain will he their searched
deceived, hut allegation. such an respondents. Wright
Cooper, Neel & complete (1) pleadings the, cause case state against Eemmer defendants. each action Mo. M,o. Walker, 335; Judd Eemmer, 557; *7 v. Dockery, 554; 241 Corder College Mo. v. Monmouth App1. Eutledge Mo. Tarr, v. 95 436; Mo. O’Neill, 176 application (2) to no The 268. Frauds has Statute it is 437. Besides O’Neill, the case. Mo.. Corder v. 176' pleaded be availed defense must be affirmative and App. Phill- 180 Mo. 725; of. lips v. Hannibal, Morrmeister (3) pleadings Hardenburg’, 473'. The v. 181 Mo. sufficiently reference concealment. stated the facts in (4) College Dockery, Mo. 555. The 241 Monmouth v. diligence. allegations was sufficient as to Dockery, College 241 v. Monmouth Mo. Cottrell 5*52; v: Kelly Mo. Priest, Mo. Bent Krran, 489; 100 86 403; v. Peoples, 50 182 Hunter v. Mo. 808; Hunter, S. W. v. (5) Lyon 452. statements as to made The being'1paid question what the land as v. 86 G-avitt, its Johnson N. etc.] are actionable. value, Bergeron Kelly v. v. Miles, W. 60 W. 256; NI 783; Peoples, Cory, 182 S'.. v. 87 N. 684. 811; W!. Dorr W. damaged (6) Plaintiffs were correct measure damage sued for this case. and recovered Ber- Mayo geron Wahlgren, Miles, v. N. W. 50 783; 60 v. (7) 256. Gavitt, Pac. v. 86 N. 40; Johnson W. Under the statutes of Kansas, State as decisions-of well as of Missouri, does Statute Limitations begin discovery until run fraud of Limitations Statute defense under facts case. of Kansas, Statutes sec. 6907; Claus, Klamm Pac. Brown 542; v. 67 v. 64 Pac. Brown, 438 SUPREME OF COURT MISSOURI. v. Berry Marborough McCormack, v. 2131Kan.
601;
43;
Ray,
v.
787;
Pac.
Winfield,
2
leged long in 1911, substance in time June, that and for prior plaintiffs acquainted thereto, the well were Meyn Lyons reposed and and confidencein them; that forepart Lyons Meyn represented June, the of and plaintiffs they» that an had offer ofitwo tracts of land City, comprising 10',814 in Kansas Kansas, sale acres, for per easily price acre; at of the $3',000 that land was acquaint- price; Lyons Meyn worth that well the and were TERM, Vol. OCTOBER Thompson v. bought for could land and the values, such
ed with go with plaintiffs they money; the desired that less an purchase $3,000' acre,, land of said them' in the pay and interest plaintiffs to take a half were plaintiffs purchase price; had that the one-half the upon the knowledge relied and of such value land of the Lyons Meyn value of to the representations as and afterwards bought price paid it; that to be land and they Meyn represented Lyons that and pay requested per and acre, $3,000 land at relying plaintiffs, purchase price; one-half the Lyons paid to statements, of the truthfulness price- purchase supposed Mleyn one-half $16-,200; per sum of a total acre, three dollars thousand property Meyn Lyons title to secured Meyn conveyed Meyn; that said to be same caused Thompson, bene- thereupon for the Frank transferred to in the interest plaintiffs, undivided one-half an fit per acre; $3,000‘ was not worth that the land same; Lyons paying $3,000 land for the instead of fraudulently as acre, $32,442, or stated only they paid plaintiffs, $14,920 all of said Lyons Meyn paid entire per acre; $1,362.2-9 purchase money plaintiffs paid, re- price out of the learned first themselves; $1,280 tained Mjay, false; 1916, that the said plaintiff's were defrauded fraud reason of the said July, 1911, and 19th 11th out of the sum of judgment with interest. sum, and ask separate answers, each The defendants filed substan- up tially setting general the same After a defense. .denial alleged in defense that the facts stated in the amend- if is wholly arose the State Kansas are ed governed by Kansas. The answers set laws then up in action the bar of the Statute Limitations Kan- sas follows: recovery real actions other than for the
“Civil *9 only property brought following periods can be within the action cause and after- shall have accrued after of MISSOURI. OF' SUPREME COURT Within, years; ac- (3) ... two . . wards. . action of cause tion relief on of fraud —the until have in such case shall not deemed to accrued discovery of the fraud.” of up in defense the Statute set
The answers further of the cause Missouri Limitations of the State years than five and before, accrued more action diligence by plaintiff reasonable the exercise!of knew, or alleged could the matters in the known, all prior years more than to- the commencement five by both for that reason the action was barred suit, and Kansas Statute Limitations of and Statute , Limitations of Missouri. separate reply
In answer each denied every- allegation each and in the answers contained except that Strother was the of Fred administrator Meyn; by denied that the of action cause was barred alleged Statute con- that “the facts Limitations, and petition, plaintiff’s pleaded stituting amended fraud, by plaintiffs June, 1916, until were not discovered days and that prior de- suit, the institution of few Meyn Lyons concealed fraud said fendants constituting things well same, as matters, facts and through any by or means or sources information, diligence by ordinary plaintiffs, the exercise alleged reply further have discovered same.” could plain- by that existed between the relation reason by defendants, reason the confidence tiffs plaintiffs reposed reason of defendants, them, and each of statements of defendants, trans- themselves be known said not to let induced inquiry concerning not to make the same. action and judgment jury A resulted in verdict trial per plaintiff cent for, amount six sued paid. money date the interest from the Thompson, Hugh plaintiffs, one of testified Timothy'J. Lyons Philip- known defendant had in the pine Islands; been there the war had known had him that he 1902; since known about the same *10 Yol. TERM, OCTOBER Thompson Lyons. blocks
length a half or three lived and time; that he two Lyons every evening probably prior to him and saw Lyons got acquainted when with He first June, Lyons Ar- running in sixth in the ward alderman helping money spent in and he and monrdale, assisted ‘‘ ’’ by which elect "Witnesshad nickname of Frock him. ' Lyons him. Ml. called He related statements of Lyons him, to as follows: Lyons evening, said,
“I met Mr. another and he yon money, yon do al- want ‘Frock, to malee some have ways helped political me make in I matters, and want to ’ ‘ ’ yon money, a lot of I and How is and that, Tim; said, ‘ piece of laughing, he There is a and said, I commenced you buy and I want $3,000' acre, an here I can land out ’ I Meyn, buy and that. go Frank and with and me, to jumped go at and look it,’1 ‘Let’s out said, and.we all and ‘Is it, out looked at I said, and went and car right, buy,’ I good and said, ‘Yes, Tim?’ it is a and buy right, go and and it it,’ ‘All ahead said, Tim, ’’ bought They ground. acre. went ahead and an $3,000 present and stated that brother Witness when then stated conversation; further, witness heard Lyons present: himself, his brother time and state what “Q. ahead IG-o occurred you out there? Tim said, three of went ‘I .A. ’ Meyn buy He can this Fred acre. enough money buy have want it, I said, ‘We not to you boys’ kept talking to me all he was time, —he acquainted very me with because Frank, well Tim and my been friends I him one friends, and considered had today up I have not to abstract examined to property,— ‘ (Interrupting) boys,’ “Q. When he said, Lou who was it he referred to? A. To Frank and I. He ‘I said, you boys money,’ make want to some and I this said, ‘Is ’ ’ money? cheap. property worth he said, ‘Yes, it is Meyn buy property, He and I will said, ‘Fred we you go want you us, but we don’t want ’ get until known in the deal we the abstract.
4*2 SUPREME OE COURT MISSOURI. you interest what talk there “Q. Was A,. property? interest. One-half would two One-half A. to whom? “Q. One-half Mleyn, one- Thompsons, Fred and one-fourth Mr. you ‘Why Lyons, don’t said, fourth to Tim I Mr. am‘I said, and he the deal?’ to he want me County known president Fred Commissioner, and Drainage Drainage Board— a member of Board’—or *11 Company a lot have done we Yards and for Stock being cheaper by your get and can this favors, we ’ . . . the deal. known you part money each were “Q. What Thomp- put up put up one-half; ? A. were each to We Meyn put up one- Mr. Fred one-half, sons were to and Lyons Tim one-fourth. fourth, Mr. and per acre. per “Q. On what basis acre? A. you subsequent meeting at any did “Q. have present, Now, you any A. which ones? so, if Lyons’s times front of Mr. did meet several W.e talked it over. present Meyn any meet- Mr. at of those “Q. Was ings? A. sir.” Yes present, Meyn relating when
In conversation he continued: evening
“A. we Mr. met there in In front of Lyons’s great Meyn house, Mr. said,' this is a ‘Now, buy’— (Mr. Neel): Meyn
“Q. Not Mr. Mr. what A. said. Lyons great buy, ‘This said, is a and I would not let one in on else this because there man all, is a Brewing Rieger, Company, name the Rochester you helped this, he but wanted never me like politics, you and I in,’ want Mfr. that is what Tim Lyons . . . said. ‘‘ Any presence Q. other conversation Mr. Meyn, Any not what he said. conversation when was present, you your Lyons? between brother or Mr. Lyons they A. Mr. said that were members of the Drain- age County Board and members Commissioners, Vol. OCTOBER. TERM, until it was want ns the deal didn’t known in up. closed My. “Q. when any At time Meyn was present -
the purchase referred to? A. At price $3,000. “Q. And anything when Mr. Meyn was present, said between yon and Mr. or and Mr. Lyons, your brother Lyons, to what interest you have? A. One-half would . interest. . .
“Q. how Now, did long negotiations these talks and Mr. prolong, Thompson, given? before check was any I mean? Approximately, A. Three four days. or “ Q. was there Now, talk forth back between M|r. Lyons yourself over going between matter, the first two or three you have spoken conversations about, the time the check was if given one ? given, A. Oh, yes; we talked every evening, practically every evening.
“Q. Was Mr. present at any those subse- quent times? Yes sir.” A.
Thompson further stated that Lyons told him the trade' was closed property had cost $3,000 an *12 requested acre, plaintiffs’ and a check for half of the purchase price.
"Plaintiffs also introduced a signed, check “J- L. Thompson by H. A. July Thompson,” 11, 1911, dated for Meyn $15,600 to.Fred payable and T. J. en- Lyons, back, dorsed on the “Paid 7-12-11. Lyons” T. J. and “Fred Meyn.” Thompson swore he gave that check Lyons Meyn they and that and went to bank and the it; got the cash signed on also a check in the same way, dated July 1911, payable to for 19, Meyn Fred $600, and endorsed on the back “Fred Meyn;” also a re- by Lyons ceipt signed Meyn July and 11, dated 1911, for for an $15,600 undivided half interest in tract a of land containing 10.4 in Kansas Kansas, City, acres Thompson given swore was when the in check the amount named was- delivered.
Thompson further stated that after he had paid Lyons $15,600, came him and there a mis- said take in the amount of and that land, owed Thompson OF MISSOURI. SUPREME COURT
Thompson thereupon gave the for second check more. He $600 Lyons again Mleyn. him that the $600 to Fred told1 partnership they that were nil ; $32,400 cost in brother each a and his owned and that the witness Mleyn Lyons a fourth; Fred -fourth that owned a fourth. the over went cross-examination witness
On parties, testimony stating all four of detail, Meyn, Lyons talked over these, plain- one of land and that conversations trade, Lyons would tiff he trust him and would told Lyons go together partners; land said per bought for than acre. O. could not be less upon Lyon’s Thompson F. relied swore ability honesty investigation. and made no July 11, of Kan- Commercial Bank 1911, On City Lyons $15',600'. credit J. showed a to T. sas July 20', 1911, a dated Plaintiff offered deed Bridge Valley Company to Fred the Meyn, Town Site Kaw & question conveying'the recited con- land a of one dollar. sideration by Meyn July 20, a dated
Also deed conveying half land; interest wife, day recorded also a deed dated same on Meyn Lyons, and wife to undivided date, from reciting a of one one-fourth interest consideration dollar. plaintiff, Merchant,
John W. sworn behalf tracts of testified the two land covered deed represent- comprised he fraction; acres ten Company; Valley Bridge & ed the Town Kaw Site conveyed paid the deed was amount Meyn; that to Fred $14,920, delivered deed him make he made deed time asked conveying a half and one *13 one interest two extra deeds, quarter conveying leaving blank; a interest, names Mleyn away took them these he made deeds him. sup- Thompson was sworn evidence F.
C. his testimony ported the essential of his brother TERM, Vol. OCTOBER Thompson produced Other witnesses
facts of the transaction. transaction. of' the details corroborate the same plaintiffs learn not did swore also Valley paid Town Kaw Site real consideration suit Company Bridge time before until a -short & was filed. Meyn trial. De- dead at time
Fred was Lyons contradict- sworn as witness fendant was testimony plaintiffs to the of both ed in detail the in substance He testified case. main issues in the buy con- acres of two he had contracted per troversy and that acre, $3-,000- rate of at the agreed lieu to take in accommodate he that he received tract; of the entire same .one-fourth Meyn paid at therefor a deed his one-fourth any per received that he never acre; the rate of $3,000 paid one- profit that which he over and above interest. fourth Lyons never that he admitted
On cross-examination Meyn anything paid interest at for his one-fourth got owed deed, but claimed time the him and the later. them settled between matter was offered, testimony to show Defendants also per July, acre. $3,000' the land value of by the court. was excluded this evidence Part of county 1910-11 list for and assessment record by defendants, excluded in evidence offered plaintiffs. The record instance the court acres 10.81 list disclosed assessment controversy $30,000. 1911 at for 1910 assessed complains Appellant uoes
I. and deceit and for fraud of action state a cause Cause not make evidence does that the Action. out case. petition, whicn is to the no demurrer There objection to its above, substance set out sufficiency until evi- motion otherwise
taken support; defendants ob- then offered dence was in its jected evidence on the to the introduction *14 SUPREME OF COURT MISSOURI. Thompson Lyons. v. it
that state sufficient to a cause didn’t facts constitute good against objection action; taken was constituting that It manner. stated definite facts price purchase representations, false of the to-wit, the bought, to that such be were plaintiffs false. It sufficient clearness stated with thereby upon were in- relied those statements purchase pay for their half duced to make the price the total whole. interest more than briefly stated shows that The evidence as above .supported. allegations There were repre- that the false evidence to substantial show money alleged actually made, were sentations actually paid plaintiffs by by de- received by rep- were fendants; deceived part thereby the mon- resentations ey. induced allegations peti- of the The defendants denied testimony tending -to- tion introduced controvert made the statements truthfulness fact the of- evidence their witnesses. Whether in question jury by plaintiff for the true fered jury it to their verdict the found determine, finding true. That is conclusive court. be says correctly Appellant the Kansas Statute II. applies stated, of action be- the cause of Limitations 1895, [Sec. Kansas. the transaction occurred in cause 1909.] R. S. Mo. The Kansas Statute , , ,, , Limitations: T only provides Limitations suit can Diligence. Fraud: brought years “in within two an ac- ac- of fraud —the cause of tion for relief on the tion in case shall not be accrued such deemed discovery fraud.” It until the claimed in this there was case because the action statute bars proven, pleading, rea- show there was the fraud. nor facts diligence to discover used sonable construing statute. are cited cases Kansas where the means' of hold effect Those cases party he is knowledge defrauded reach is within knowledge fraud. each In presumed to have (cid:127) Yol. 281] OCTOBER TERM, 1919.
one of however, them, there íucis notice; constructive that is, there anwas administrator’s or the settlement, showing record of a deed, the facts which conceal obtaining ed from the defrauded. The rule Kansas in the laid down case of Hutto Knowlton, 82 Kan. l. 445, c. follows: *15 public required by
"Where a record is law be to kept respecting property- as a source information rights duty anyone upon and interests, a rests to whom improve diligence the information is material to opportunity learning that which the record dis- . . closes. But the rule no broader its :is than .. any obligation basis, and if for no to reason exists! person record, consult the or if the interested cir- be taking advantage opportunity, cumvented from of his the rule not does obtain. obligation upon resting
"There is no a landlord fraudulently to watch the records for tax deeds taken by [citing fiduciary out cases]. his tenant rela- Where requiring tions exist of the true disclosure state anticipate facts there is reason unfaithfulness, no to obligations and the to records relaxed search the by [citing’ prevented Likewise, if a be cases]. availing fraud himself rec- benefit forego investiga- ord, or be such means to led participating tion of the can record, no one the fraud duty insist the enforcement of to do so. We just not have here such a ac- case. records appellant, cessible who a distant state. lived very impart information, Ellis if which understood true, his would furnish- statements were records appellant question ed. The verac- had no reason to his oblige- ity, and the had law did not her do so. She right accept as to relv true, upon them as faithful of what she would disclosures ’’, them. 'discover from the records if she consulted
It of the Kaw here that claimed records Yalley Bridge Company Town & showed actual Site Meyn paid property consideration Eked for the which represent- $14,920, instead more than MISSOURI. OF SUPREME COURT
Thompson v. to the no access by him. But the ed right them corporation, to examine books of custody anyone right of them what to ask and in fact no imparted notice a record It showed. wasn’t to them. company recited is true the It deed appears rec- dollar one consideration of impart imparts not notice but it did notice,
ord and Supreme Court the Kansas is held It fraud. a record Kan. Cowan, 84 the case of Kline says: The court imparts only it contains. notice of what instrument, as the recorded “But where constructive fraud, no evidence of case,, furnishes imputed.” knowledge cannot thereof 96 Kan. Fosha, And of Underwood in the case Supreme said: of Kansas page 551, the Court l. c. everything imparts notice of deed “The record impart matters notice of It does contained therein. wholly outside the deed.” *16 that from start the
Doubtless knew the corporation by recited consider- the executed the deed very they that time ation dollar and it was at of one in told the was were that consideration defendants thirtyrtwo not dollars. The deed excess thousand did sug- real and it not consideration, the would disclose gest any the true reason for to state considera- failure prevails in other than that which often real es- tion mig'ht negotiation deals—that it tate facilitate a further land. fact of the true consideration the was require necessarily not would not the stated to inquiry make than to friends, further ash their with partnership whom in they trusted, were and whom what the real there consideration-was. was no So show- ing which would set the Kansas of Limitations Statute operation.
Applying the doctrine to Missouri the the facts, appellants Hays case to most favorable Smith, represented In S. W. 455. plain- that case was it to the tiff that a certain bought tract of could land not be for seventy-five less than dollars an acre and in- he was TERM, 1919. Yol. OCTOBER agent who pay in fact the for when it, duced to acre paid fifty an representations only dollars the made began to that the statute run for it. It was held plaintiff the because made, trade the time the was prac- had been fraud that discovered the have should upon who made In that ticed case him. agent purchaser, but of the not the agent himself testified Plaintiff seller. year land would sell of a learned
inside he sixty fifty all about the dollars an He acre. learned paid he knew that worth what n it. opinion emphasizes that case also the fact agent purchaser dealing parties suspicions length; other at arm’s says “juberous” aroused at the he start, and he paid being about the land worth what he it when asking made the and that he didn’t about care trade, price of the land he didn’t want make because agent presence out a A liar of the owner. suggested number of circumstances in case purchaser inquiry. that he should make present
That ease
from the
case
differs
all these
particulars.
parties
representa-
making
Here
partners
plaintiffs.
tions were
Plaintiffs had a
right
representations.
rely
single
their
Not brought
knowledge
fact was
their
which would tend
suspicion
partners
to arouse
that their
dealing-
were not
good
pointed
faith with them.
It
even
out
appellants
actually
that the land was
worth
any inquiry regarding
acre, so that
values would not
revealed
fraud.
*17
This court has announced
same
the
doctrine as the
being
Kansas courts equal
constructive notice
actual
put
notice
the
so
fraud
as to
the Statutes of
operation.
Limitations in
[Hudson Gaboon,
193 Mo.
547.] But has
principles
also
down
laid
certain
govern
application
the
of the statute.
In
case
the
Dockery,
College
Monmouth
Thompson v. the nothing in the transaction “If there was reasonably occurring nothing cause a later, to time, negli- guilty suspect prudent he is fraud, toman ¤ gence failing it out.” to ferret opinion, quoting page from an same On the says: case, Illinois diligence ordinary discover to use
“The failure re- may there exists be some fraud excused where the agent, principal lation of trust confidence, attorney, que trustee between tru-st and cestui client party party committing fraud and who the the the rendering duty to- it of the former it, affected transaction, disclose true state of the to the latter appears through it when that was confidence party who committed the fraud other was prevented discovering it.” page approved
On the the court of another same part- where relation that of a case of confidencewas says partner, ner, and the court in the case of the 1. e. 559: positive representation “But here there”was made party position required whose of him the utmost good representation faith, and that a concealment may cause of action. Whatever rule where no relation of trust and exists, confidence we are clear that where relation does exist, as in case, bar of the statute avail cannot who misleads partner.” his Keithley,
(cid:127)A still later case, Laird v. 201 S. W. 1138, opinion l. c. Judge this court Woodson, held: “It is next though respond- insisted that, even ent did not know the fraud at the time of the com- pletion yet by ordinary trade, exercise of prudence reasonable care he could have ascertained fraud, years expired, before the five and for that rea- son the demurrer should have been sustained. This in- equally respondent sistence is untenable. The testified .entirely relied made by appellant agents him regarding the char- *18 OCTOBER, 451 Vol. TERM, 1919.
Thompson Lyons. v. County the Ralls acter of soil the the productions observa- his own land, that he did not rely hurried, show, were which, the evidence tended tions, in no view, and bird’s-eye limited, mere (cid:127)casual the meaning the land within inspection sense an con- facts also that certain material were term; with the mis- coupled from respondent, cealed which, him threw off representa mentioned, guard Tons him farm into- the .that Missouri belief lulled d the law is representí Under those conditions him. under no legal well d that the defrauded is settlf of the transaction, obligation investigate honesty but upon the vendor may rely true.” weight against the position authority
The in taken in dis- appellant regard plaintiff.’s duty the fraud. covering
III. by appellants It claimed pleading Limi- avoidance the Kansas Statute was insufficient to show tations reasonable diligence the" fraud. discovering stated petition fra;U(3- was not discovered until June, Diligence' court This case of College Dockery, Mo. l. c. said, a case of this character:
“If the plaintiff states that he did not merely dis- cover the fraud until a certain date, and the defendant, without questioning the sufficiency goes pleading, to trial on that issue, ... on cannot, appeal, ’’ complain defect in the pleading.
The court then further said : “There was no demur- rer filed in this case, and no objection to the evidence specific of this alleged defect,” and held sufficient. pleading
In this case petition was sufficient, and besides the replies averred that “constituting facts fraud pleaded plaintiff’s amended not discovered until June, 1916.” replies further alleged plaintiffs were misled MISSOURI. OF SUPREME 'COURT the de- discovering
prevented fraud, might have from which fact concealed fendants *19 discovered. been testimony any the defend-’ introduced was Before any objected of evi- introduction to the
ants’ counsel petition facts ground did not state dence on the mentioned of constitute a cause action sufficient to petition, objections not specific but did to the several objection no it any allegation contained state of the the bar 'which would facts remove replications of the Statute of Limitations. The objection being any insufficient mentioned in plaintiff particular. did not It noted will be petition plead facts because need to such in. until of' was not in issue Statute Kansas Limitations properly pleaded in the then such facts were answer; pleaded objection sufficiency reply, ot to the reply made. was appellants
IV. The claim that the Missouri Statute Limitations In what would bar the addition to action. may is gun said above be noteff that action was be- actually up 27, June closed trade and the fruits of. the fraudulent Limitations: transaction received the defend- , , ,, , Missoun Statute: T OA July £UltS UDOUt SO t-JlG 19'11? 20’? Death Defendant. actually begun suit within five years from the time the trade was closed. appellant petition
But the claims, inasmuch as the malring Meyn, was amended, Strother, administrator of September defendant, term, 1916, since the July, trade was consummated that more than 1911, years elapsed five had before sued, Strother was against" therefore the suit as him is barred. petition alleges The amended Meyn that Fred died twenty-second day April, nothing 1916'. There is to show when appointed. his administrator ap- It pears to have been begun after the suit was and im- mediately before the amended was filed. The elapsing time between the death of the decedent and 453 TEEM, Vol.281] OCTOBER Thompson v. is excluded
appointment administrator runs. of Limitations computation the Statute of time Hill, App. McKinzie 4; Mo. Haeberle, [Nelson App. 269; c. l. Mo. Reid, 75 Little v. 303; 51 Mo. There App. 368.] c. 365, l. Mo. Warren, Hinshaw v. between months four three an interval of to be seems appointment his adminis the death not run. did during statute which the trator urged why should Another reason V. the defend- they,, with not recover is illegal contract into entered ants, Scheme!ent operation out or scheme, liability arose. scheme directing by defendants An instruction asked *20 de- jury “if the for defendants to find controversy purchased fendants understanding were to use their defendants gave positions The court for the sale thereof.” official adding: the defendants the instruction after “unless acted, fraudulently other out instruction.” set appellant claims, action of the was error. court, That represented, goes, Lyons so the Mr. evidence all work piece on of his knew account office the inside he a the railroad and the this Terminals, buy. they expected ground daily the Terminal would Drainage also were members of He stated Board for that reason not did want known the deal. appellants
The cite a number oases where lot courts have refused to enforce contracts tery on based arrangements, gambling schemes, immoral or undertakings. point unlawful None these cases are in because this contract, an action to nor is a enforce fraud It is action the breach a contract. grant refuse relief deceit. While the courts against pub either in a suit which contract is yet policy, parties lic where of the defrauded one may for fraud and he recover reason transaction Gargett, l. 462; deceit. Mich. c. [McNamara 454, v. 68 454 SUPREME OF COURT MISSOURI. v. page 399.] top
Hess L. Culver, R. A. R. L. 498; v. 6 12 C. illegal enforcing contracts, The difference between money asserting arisen them, title has alleging being induced to enter them, fraud pointed [McBlair out in numbers of Gibbes, cases. v. Blachley, 58 l. 235-7; U. Am. St. S. Smith 231, c. Supreme 891.] 887, l. c. Kansas has Court of proposition passed upon in the case this Jones person Inness, 177, l. c. 181. that case on© Kan. In made another while under drunk the latter was liquor, game the influence of induced him to bet aon money gamble. Gamjbling cards and obtained his in the contrary proceeding to law and whole was il legal, yet plaintiff recover on could account of the also, Corcoran, fraud. So, Hall v. 107 Mass. c. l. People, 256; Y. 67 N. Loomis v. pass upon very
This court
occasion
question in
Boatwright,
case Hobbs v.
“If the intended to a state gam- money at action under Section 3424 lost necessary. bling, gpod a there is deal more of it than game is the not the essential to Fraud unfairness right by given other statute; on of action the hand, if statute the states there such right is, la,w, that defend- oh at action common Boatright plaintiff’s mon- ants and others obtained the by ey they assisted a fraudulent scheme were the bank and its That is cashier Stewart. petition means.” if, construction,
In some stretch of case, plaintiffs may the deal led enter it said they represented that unlaw- because defendants would account, fully procure their land a sale plaintiffs probably, positions, official could if action; but, of an enforced the contract in land by misrepresentations facts certain the defendants illegal plaintiffs contract to enter induced the they money, recov- resist can’t them their defrauded ery scheme was unlawful. on the that the directing an instruction defendants asked VI. bought, plaintiffs jury time the if at the reasonably three thousand dollars worth land was they verdict for the defendants. acre should render instruction, The court refused the J ]\C6RSU1!6 of ruling was error. theOn measure claimed Damages damages jury were instructed, if damages plaintiffs, dif- to assess their found Meym paid Lyons what the ference between they got for the half interest which and one-half paid Lyons actually the Kaw amount which Company Valley Bridge & Town the entire tract. Site Appellants claim this was error, assert that the true damages between actual measure difference paid price which value theory the land as much that if worth for it^on *22 456 SUPREME COURT OF MISSOURI.
Thompson v. plaintiffs paid plaintiffs damaged. as the for it damages misrepresentations The measure of for inducing purchase roperty, or other land, de pends upon misrepresentations. the nature of the If the false which statements induced the trade were as to quality, condition or fact which would enter into the value of land, measure .the would be differ ence between the actual value the value as would property if have been been represented. as [Sigafus v. Porter, 116; 179 U. v. Converse, Stoke S. 38 (N. S.) L. person note.] R. A. 465, But one where makes purchase or another; where one of tw'o more joint purchasers joint purchase, conducts a false ly represents price greater to the others that the than is actually paid property, measure of dam ages always the difference between the amount ac paid tually defrauded true purchase price acquired. [Pick of the interest which he App. Cyc. ett Mo. Wren, v. 141; 187 20 83; John Bergeron son Gavitt, Iowa, 183; v. 114 Miles, 88 v. Wis. Rutledge App. Tarr, v. 397; Mo. 265, 268; 95 McLain Pendergast v. Parker, 229 68. See case of Mo. also 541.] Reed, 96 Am. Dec.
Appellants cite the case of Newell, support App. posi Mo. l. 118 c. of their 415-16, damages the measure of tion was the difference paid. the actual between value and the amount That some cases, as other bolds that case, where a seller in purchaser by misrepresenting price duces a (cid:127) the article cost of dam him, ’is measure sold ages original unless the cost enters a term as prin It will contract. discussion of the seen page ciple case that the correct rule as approved. stated above is wlas not case where This by simply pláintiffs defendants the land to the ing stat sold previous it had them at- what cost time. The some together joint pur defendants went chasers; defendants acted every and in case where the facts are of that
matter; na damages the measure of is as stated ture above. OCTOBER, TERM, Vol. 281J Louis.
Witter v. St. *23 exactly damaged amount fact were they paid of what excess defendants the land might actually made, or not it cost. Whether money no difference on makes made, deal, right or in to recover whatever in their measure App. damages. l. [Pickett 187 Mo. Wren, of their 91.] c. 90, show .briefs filed record us and the before vigor great fought through on both with
case sides appellants by points pertinacity. are made Some regard These collateral issues. main matters by has been above. what are answered said ' judgment Railey dissents; is affirmed. G., Mordey,, concurs,. G., opinion by foregoing PER CURIAM:—The Whit®, opinion adopted of the court. All
C., as the judges concur. LOUIS, et al. CITY OF H.
JOHN WITLER ST. RAILROAD ASSOCIATION TERMINAL COMPANY, CONTRACTING FRUIN-COLNON Appellants. Two,
Division March 1920. MEASURE OF DAMAGES: Obstruction of Access. Viaduct: Where street, wide, part via- two between the feet seven-foot plaintiff’s property, been remained duct elevated but street, was before the viaduct in the as it constructed there telling jury that th'e is no room in the case for instruction money damage plaintiff’s the amount of measure of one plaintiff’s property a level would cost raise surface of present surface of viaduct. plain- Special -: -: -: Benefits. access Where completely prevented property east tiff’s has been ad- viaduct north-and-south of a the erection seven-foot ninety-nino- joining street, off and has otherwise been shut