118 Mo. App. 405 | Mo. Ct. App. | 1906
Action to recover damages alleged to have been sustained in consequence of deceit practiced by defendant in the sale of land to plaintiffs. At the conclusion of the introduction of their evidence, plaintiffs were nonsuited and bring the case here on appeal.
The contiwersy arises out of the sale of a farm of four hundred and five acres lying in Jasper county some four miles from Carthage. On May 9,1903, the parties entered into a contract in writing, wherein it was agreed that “in consideration of the payment by the parties of
The deceit, Avhich plaintiffs contend gives them a cause of action in damages, will appear from these facts collated from the evidence introduced by them.
Defendant, a real estate dealer in Carthage, owned and for some two years had owned the farm and was endeavoring to sell it. He bought it from a man liAdng in Jasper county and paid $16,000 for it, but at his request the deed he received (duly recordéd) expressed a consideration of $20,000. Plaintiffs are husband and wife and at the opening of the story were farmers living in Indiana. They sold their farm in that state and contemplated a trip to Kansas in quest for another. There fell into their hands at this time (no matter from what source) some advertising pamphlets, which defendant sowed broadcast, descriptive of the excellence of Jaspfe. county farming lands in general and of those listed by defendant in particular. Thereupon, plaintiffs, accompanied, by a neighbor and his Avife (of the name of Patton), bought return trip tickets to Wichita, Kansas, by way of Carthage and stopped at the latter place to interview defendant. They went to the hotel and soon after called on defendant at his office. Defendant in the prosecution of his business of real estate dealer and agent Avas most diligent and enterprising. Carriages in charge of competent guides were furnished by him for the use of plaintiffs’ party in the making
Plaintiffs say they believed the statement and, knowing that defendant was an expert judge of real estate values, were convinced they would be getting a bargain
After this the contract was signed by defendant and both plaintiffs; partial payments were made as agreed on the purchase price and plaintiffs took possession of the farm. They discovered the fact that the cost of the farm to defendant had been misrepresented before all of the purchase money was paid and before the delivery of a deed to them, but paid the full price and accepted the deed before bringing this suit.
Mr. Thompson was fifty-seven years old, an experienced farmer and had bought and sold to advantage several farms in Illinois and Indiana. From their testimony, we judge that both he and his wife are persons of more than averag’e intelligence and business capacity. He lived in Jasper county for about three years during the decade ending in 1880 and worked on a farm near the land he bought. Plaintiffs were diligent and thorough in their examination of the different farms they visited and were entirely too business-like for us to believe that they reposed undue confidence in the opinions of men with whom they knew they were dealing at arm’s length. Notwithstanding the efforts defendant' made to monopolize their time, he was by no means successful. Plaintiffs rode in his carriages and accepted the social attentions he offered, but found time and opportunity for enlightenment from independent sources. Their visit to Manley’s office was so timely that it smacks strongly off a strategic move designed by plaintiffs to beat down defendant’s price. We have closely consid
Despite our own conviction that nothing said or done by defendant imposed upon the credulity of plaintiffs or prevented them from the free exercise of their oavu judgment, we Avill not permit this to control our disposition of the case, but Avill give plaintiffs the benefit of the inference, which they say the jury should have been permitted to draw from the facts in proof, that they were isolated from outside means, of information by the conduct of defendant and influenced to their conclusion by his false statement of the cost of the land to him.
We see nothing in the conduct of defendant preceding the utterance of the false statements that plaintiffs in their situation should have suffered to interfere with their freedom of action. It is perhaps as old as barter and trade itself for a vendor, who has something to sell, to endeavor to keep a prospective purchaser to himself until he can accomplish a sale. Buyer and seller sustain no confidential relation to each other, but are business antagonists. Plaintiffs do not contend that they labored under any disability. Independent sources of informa
Plaintiffs virtually found the cause of action asserted upon the deception, which they say was accomplished by this false utterance, and argue that the proof adduced should be held sufficient to support the action for these reasons. The representation related to a material fact and was not the mere expression of an opinion on the subject of value: it was false and by defendant known to be false when made: was intended to deceive and did. deceive and but for their reliance in its supposed verity plaintiffs would not have bought the land at the agreed price.
All of this may be conceded for argument and yet plaintiffs must fail in this action because of the conceded fact that the land, when sold, was well worth the price stipulated in the written contract. To support an action at law for deceit actual damages must have resulted to the plaintiff from the deception. [Lenox v. Harrison, 88 Mo. 496; Crumb v. Wright, 97 Mo. 18; Lewis v. Land Co., 124 Mo. 688; McBeth v. Craddock, 28 Mo. App. 380; Live Stock Remedy Co. v. White, 90 Mo. App. 498; Edwards v. Noel, 88 Mo. App. 434; Paretti v. Rebenack, 81 Mo. App. 494; Bank v. Byers, 139 Mo. l. c. 652.]
As a general rule, the measure of damage is the difference at the time of sale between the contract price
Plaintiffs argue that they are entitled to the bargain defendant had in the land in the price he paid for it and say that- “if one agrees to sell property or an interest therein at what it cost him and fraudulently misrepresents the cost, the measure of the purchaser’s damages is generally the difference between the actual and the represented value,” citing Pendergast v. Reed, 29 Md. 398; Crater v. Brinninger, 33 N. J. L. 513; Salm v. Israel, 74 Iowa 314; 14 Am. and Eng. Ency. of Law, 185. This rule certainly should be applied to cases where the contract made by the parties, in terms, provides that the cost of the property to the vendor is to control the price to be paid by the vendee. Enforcing the rule under consideration in such cases is in effect nothing-more than the enforcement of the very letter of the contract through the medium of an award in damages for its fraudulent breach. Thus, in Pendergast v. Reed, supra, the contract made by the parties was as stated by the court “a purchase for certain considerations of one-eighth of the vessel at its cost price to the defendant and a false representation of this price.” The court very properly held the fact that the vessel was actually worth the value represented immaterial to the measure of damages because plaintiff agreed in the contract to pay, not one-eighth of the value of the vessel, but that proportion of its actual cost to the defendant. So, in Salm v. Israel, supra, the written contract signed by the parties contained the stipulation that the goods were “to be invoiced to second parties at the invoice price that first parties purchased same for.” The vendor fraudulently invoiced the goods to the vendee at a higher price and in an action brought by the latter it was held the plaintiff should recover the amount paid by him in excess of
In the written contract before us, no reference to the cost of the farm to defendant is to be found, but plaintiffs agreed therein, without qualification, to pay the price of $20,000. Plaintiffs are not seeking to rescind the contract. They have affirmed it and accepted its benefits. Unlike the defendant’s in the Pendergast' and Salm cases, who did not fully perform the conditions of their respective contracts, defendant here conveyed the land at the price both parties understood, intended and agreed should be paid for it and thus fully performed the conditions imposed upon him under the written contract. Under circumstances such as these, the true rule, both in law and morals, for the measurement of damages in an action for deceit is the difference between the contract price and the reasonable market value of the land. It follows that, as plaintiffs have suffered no injury under this rule, an action in damages cannot be sustained.
Nor can we accept the suggestion that plaintiffs, at least, are entitled to recover nominal damages. In the absence of actual damage no cause of action at law inured to them. •
What we have said is sufficient to control the dis