129 Mo. App. 307 | Mo. Ct. App. | 1908
The action is for fraud and deceit in the exchange of land. Plaintiff’s damages are laid at $5,000 in the petition. The jury found the issues for plaintiff and assessed his damages at $1,133.09, and judgment was rendered and entered of record for this amount. A timely motion for new trial was filed and being taken up by the court, “the court announced that the verdict was too great an amount and unless plaintiff would remit the sum of four hundred and thirty-three ($433.09) dollars and nine cents, the motion for a new trial would be sustained, but if such remittitur was made it would, be overruled; whereupon the plaintiff in open court remitted the said amount of four hundred and thirty-three dollars and nine cents, leaving the amount of the verdict stand at seven hundred ($700) dollars and thereupon the court overruled said motion for a new trial; to which action of the court in overruling said motion for a new trial, the defendants in open court, by counsel, objected and excepted at the time.” Whereupon defendants took and perfected their appeal to'this court. No new judgment was entered after plaintiff remitted, the sum of $433.09 of the original judgment and the appeal is from the judgment for $1,133.09. This judgment was nullified and, in effect, expunged from the record by the remittitur and a new entry of the judgment for the proper amount should have been made. [Schilling v. Speck, 26 Mo. 489; Tilford v. Ramsey, 43 Mo. 410; Haynes v. Town of Trenton, 108 Mo. l. c. 134, 18 S. W. 1003; Dawson v. Waldheim, 81 Mo. App. l. c. 638; s. c., 89 Mo. App. 245.] Technically, there was no final judgment in the cause from which an appeal could be taken. But it seems to us it would be judicial nonsense to dismiss the appeal for the reason the circuit court omitted to enter a proper judg
We will address ourselves to the case. The petition, in substance, alleges that on the solicitation of defendant Reitz plaintiff purchased of defendant Kaiser six hundred and forty acres of land in Fentress county, in-the State of Tennessee, of the value of $5,000, and paid therefor in money and property $3,000; that Reitz represented to plaintiff that he was well acquainted with the land and it was well worth $5,000, that Mrs. Kaiser had a good title thereto and, relying on these representations and believing them to be true, plaintiff bought the land; that after making the purchase plaintiff investigated the title of Mrs. Kaiser to the Tennessee land and ascertained she did not have and never had had any title thereto. The answer was a general denial. It appears from the evidence that sometime prior to the year 1900, defendant Reitz procured a deed to the six hundred- and-forty-acre-tract of land in Tennessee, and also an abstract showing a paper title in himself; that he conveyed the land to defendant Kaiser, who is his sister, and afterwards Reitz, acting for Mrs. Kaiser, traded the land to plaintiff for a farm of two hundred acres near the town of St. James, in Phelps county, Missouri. This farm was incumbered by a mortgage for $2,750, and was estimated by the witnesses to be worth from two thousand to thirty-five hundred dollars. The evidence tends to show that the Tennessee land, on account of
Plaintiff testified he wrote Reitz he would not make the trade unless the title was all right, and Reitz replied that he had owned the land himself and knew the title was good. This was an assertion of positive knowledge and, if untrue, was legal fraud, notwithstanding Reitz may have acted in good faith and believed the title to be good.
“The court instructs the jury that if you believe and find from the evidence that the 640 acres of land in Fentress county, Tennessee, at the time the conveyance of the land was made to the plaintiff, J. W. White, by the defendant, M. Kaiser, if you find and believe said conveyance was made, was in possession of, and was claimed by parties adversely to the defendant, M'. Kaiser, then and in that event, if you so find, the said conveyance from M. Kaiser to J. W. White, if you find the same was made, conveyed no title to the plaintiff in this case, and was void, under and by virtue of the champerty act of the State of Tennessee, and if you*315 further find that the defendant, Y. W. Reitz, at the time of said gale, represented to plaintiff that M. Kaiser had a good title to said land, you will find the issues for the plaintiff.”
It would have been proper for the court to have submitted to the jury to find whether or not the sections read from Shannon’s Code were the laws of Tennessee, but it was not proper to leave it to the jury to interpret those sections and apply them to the facts in the case as was done by the instruction. It was the duty of the court to have interpreted the sections read in evidence to the jury. The instruction is also erroneous in that it authorizes a recovery if the jury found Mrs. Kaiser’s title was not good but Reitz represented it to be good. The instructions entirely ignored the question of fraud in the making- of the representations in respect to title by Reitz. Fraud was the gist of the action and to ignore it in the instruction purporting to cover the whole case was clearly erroneous, for which error the judgment is reversed and the cause remanded.