Dobson v. Winner

Ellisow, J. The petition in this cause charges that the plaintiffs, Charles W. Whitehead and Thomas J. Green, at the request of defendant, entered into an agreement for the joint purchase of a tract of land, in Jackson county, Missouri, the purchase to be made by •defendant, he transacting the business for the others. The plaintiffs were to take four-tenths of the tract, and the property was to be conveyed to Green, in trust for all the parties, in proportion to their respective interests ; that the exact amount at which the property could be purchased was concealed by defendant from plaintiffs; that defendant purchased the property for the parties in interest for twenty-two thousand dollars, seven thousand dollars in cash, the balance in one, two, and three years; being seven hundred dollars cash for each tenth interest; but that defendant falsely and fraudulently represented to plaintiffs that he had paid twenty-five thousand dollars for the property, and that the amount of cash due on each tenth interest was one thousand dollars, making the amount due from plaintiffs four thousand dollars; that plaintiffs, relying upon these representations as being true, paid him the sum of four thousand dollars, which amount defendant used to pay the twenty-eight hundred dollars, actually due from them, and the remaining twelve hundred dollars on the fourteen hundred dollars, due on the two-tenths of himself and said Green. Defendant’s answer was a general denial. On trial, a verdict was rendered for plaintiffs, and defendant appeals. [335] It is objected by defendant that the petition shows no partnership relation between plaintiffs,. and no joint interest in the subject-matter of the suit. With this view, defendant objected to the reception of any evidence, and demurred to the testimony, after it was received. If the point were tenable, it should have been taken advantage of by demurrer, or answer; otherwise, it is -waived. Rev. Stat., sects. 3515, 3519. Much of defendant’s brief is devoted to the point that this action is ex delicto, for fraud and deceit, and that it is, therefore, not supported by the proof. We are not inclined to so regard it. The allegations in the petition, that the over-payment was made by reason of the false and fraudulent representations of defendant, do not, necessarily, change the cause of action from asswm/psit for money had and received. This question was considered and decided by us, recently, in the cases of Yeater et al. v. Hines (24 Mo. App. 619), and Richardson v. Palmer (24 Mo. App. 480). The contention that plaintiffs had the means of informing themselves of the true state of this transaction, and should have improved them ; that,, having eyes and ears, they should have brought them into requisition, is not applicable to this case. The charge here is the payment of money to defendant under a mistaken idea as to what was his due. Whether this mistake was brought about by fraudulent or innocent representations, made by defendant, is of no éonsequence. Neither does the carelessness or alertness of plaintiffs alter the rights of the parties. The question is, whether the plaintiffs have paid money to defendant by mistake, which is not rightfully his. If they have, their alleged negligence in failing to ascertain the true status of affairs will not affect their rights. This question was fully investigated in Lyle n. Shinnebarger (17 Mo. App. 66, 75). The instructions for plaintiffs made no reference to the question of fraud, and put the issue to the jury in substantial compliance with the foregoing remarks. [336] Those given for defendant, especially number seventeen, gave him more upon which to go to the jury than he was entitled to, under the views herein expressed. We do' not feel justified in disturbing the verdict, and, therefore, affirm the judgment. All concur.