186 Mo. App. 275 | Mo. Ct. App. | 1914
— Under date of June 16, 1911, plaintiff and defendant entered into a written contract wherein defendant agreed to pay the plaintiff eight hundred dollars for “all of the white oak, red oak, ash and hickory timber” on one and a half sections of land in Phillips county, Arkansas, except the timber inside of fields and fenced portions of said land. Three hundred dollars of the purchase price was to be paid when the agreement was signed and the balance as the defendant removed the timber, and it was stated that all of said balance was to be paid within ninety days, from the date of the contract. Farther along in the contract it was stated that defendant should have twelve months in which to remove the timber from the land, but no point is made on that here. The contract was signed, the defendant paid three hundred dollars and on August 6, 1911, he paid two hundred dollars more. This action is brought to recover the balance of the purchase price. The trial resulted in a directed verdict for the plaintiff for three hundred dollars, with interest, and the defendant has appealed. The defendant filed his unverified answer to plaintiff’s petition alleging that he was induced to enter into the contract by false and fraudulent representations made to him by plaintiff’s agent as to the amount and character of the timber and prayed judgment against the plaintiff for the cancellation of said contract and judgment for two hundred and fifty dollars on account of the alleged fraud.
The plaintiff was at the time the contract was entered into a resident of said county in Arkansas,
The defendant in his efforts to establish an agency between Noland and plaintiff sought to do so principally by statements made by Noland. This the court refused to permit him to do and properly so because all declarations made by an alleged agent before there is any testimony tending to prove the relation are inadmissible for that purpose.
The defendant now practically concedes that the only theory upon which he can maintain his counterclaim is that since the alleged fraud of Noland has
There was no testimony introduced or offered that suggests even that Noland made any representation to defendant as to the value of the timber. Defendant testified that “He told me there was twenty large trees of twenty-four inches of veneer timber.” But there is no testimony or offer to show that this was not true. A witness, defendant’s timber inspector, was asked about this but owing to objections sustained by the court he did not answer and defendant made an offer to prove by him that there were no white oak trees on the land that would make veneer, which leaves an entire absence of proof that Noland’s alleged representations of which defendant testified were false. There appears in the record a. statement of another witness to the effect that there was no veneer white oak on the land, but this does not prove that there was no veneer timber.
A feature of the case that would justify plaintiff in believing that defendant’s charge of fraud was feigned is that after the contract was signed, three hundred dollars paid thereon, the defendant, in sixty days thereafter and after the timber had been examined by his inspector and after he had no doubt removed a
Noland must have been the agent of either the plaintiff or defendant; the defendant failed wholly to introduce or offer any testimony that tended to prove that Noland was the agent of plaintiff. It would be a strange and unjust rule that would permit the plaintiff to be burdened with the alleged fraud of Noland simply because defendant was charging No-land with fraud and of being plaintiff’s agent when plaintiff had good reason to believe, on account of defendant’s conduct, if nothing more, that no fraud had been perpetrated. It will also be observed that the contract does not specify any particular kind or character. of timber.but undertakes to sell only whatever may be on the land.
In referring to the payment made by defendant after the time when he should have discovered the alleged fraud we have not overlooked the cases holding that this does not estop him from pursuing his remedy for alleged fraud. [Campbell v. Hoff, 129 Mo. 317, 325, 31 S. W. 603, and cases cited.] However, in a quotation from Page on Contracts in the case of Brown v. South Joplin Lead & Zinc Mining Co., 231 Mo. 166, 173, 132 S. W. 693, it is said thaf by making partial payments on the purchase money with full knowledge of the facts makes the contract valid, but we pursue that question no further as such an issue was not in controversy in that case and is not necessarily in controversy here, except we are referring to defendant’s conduct to show that the plaintiff should not be held to be acting in bad faith and accepting the benefits of any fraud Noland may have been guilty of simply because he did not, on discovering the charges
Befendant submits to us that by reason of section 1974, Revised Statutes 1909, the jury should not have been directed to return a verdict, because his testimony, and offer of testimony, tended to prove a failure of consideration, citing several authorities in support of the contention. There was no such issue tendered by his answer. The proof was made and tendered to prove fraud. In all of the cases cited under this point it is shown that the question of consideration was raised by the pleadings, except in Murphy v. Gray, 37 Mo. 536, and there the brief of respondent shows that it was so put into the case. This point is without merit.
The judgment is affirmed.