Halliwell Cement Co. v. Stewart

ELLISON, J. — This is an action on a promissory note for balance due thereon. The note and balance claimed as unpaid were not denied by defendant. But he set up in his answer a counterclaim for damages by reason of plaintiff’s fraud and deceit, alleging that the note was given for purchase of cement which was to be used in the construction of sidewalks for Kansas City, Missouri. That plaintiff in order to induce defendant to buy the cement, falsely and fraudulently represented to him that the cement was a good cement and fit for construction of sidewalks well knowing that it was not fit and that it would not pass inspection of the city inspector. That he relied upon such fraudulent represensations as being true and believed they were. true. That in truth they were not true and that , the cement [185] was wholly unfit and unsuitable, and that the sidewalk constructed therewith was rejected and he was compelled to take up and remove it, at a cost of $368; “so that defendant says by reason of the acts and representations of the plaintiff aforesaid, he has sustained damages in the sum of $647.60,” for which he demanded judgment. Defendant’s counterclaim is a claim for damages based on fraudulent and false representations. In such case it is necessary to prove, among other things, that the representations were made intending that they should be acted on, that they were false and known to. be false by the party making them and not known to-be by the other party, but relied upon by him and acted upon on the faith of their being true. Bank v. Byers, 139 Mo. 652; Nauman v. Oberle, 90 Mo. 666. But the trial court refused instruction number sis for plaintiff wherein it was declared that defendant must prove that the representations were false and fraudulent and that defendant knew it. Furthermore, the court, over the-protest of plaintiff, gave for defendant an instruction on his counterclaim which almost wholly omitted the necessary elements which go to make up a case for damages on fraudulent representations. The truth is, the answer seems to have been lost sight of when it came to acting on the instructions, and as finally formulated and given to the jury they present a case for damages by reason of a breach of warranty merely; and so the case is briefed by defendant in this, court. But that can not be allowed in the face of the answer and the range of the evidence given under its allegations. If defendant relies upon a warranty and its breach, he should plead it, and may do so by amendment. If plaintiff sold him the cement and warranted it to be fit for a certain purpose, when it was not, he is liable,, regardless of whether he made fraudulent representations. So if he sold the cement to defendant for a particular purpose, for the ordinary price, there was an [186] implied warranty that it was fit for that purpose. Brewing Co. v. McEnroe, 80 Mo. App. 429. Instruction number five for plaintiff was faulty in the latter half. “Did believe,” should be substituted for “had good reason to believe.” Number six could well have added therein the additional condition that defendant relied upon the representations. Number seven should be amended so as to read, “mere expressions of opinon honestly entertained and made in good faith.” In ease the character' of the counterclaim is changed to a claim on warranty, the instructions must then, of •course, conform to that theory. The judgment is reversed and cause remanded. All concur.