Martin v. Hill

ELLISON, J. The plaintiffs’ petition is in two counts, one for money had and received, the other for fraud and deceit. There was a general verdict for the plaintiffs. It appears from the evidence in plaintiffs’ behalf, which, since the verdict is for them, we must accept as true, that they were real estate agents in Barton county and had been in correspondence for several months with one Curry, who resided in Illinois, about the sale of a farm which they were agents to sell. Curry and defend1 ant resided in the same town in Illinois and the latter owned a farm near the one about which Curry and plaintiffs were corresponding. Curry and defendant came to this State together and proceeded to plaintiffs’ office together, and they, with one of plaintiffs, went to the farm, looked it over and Curry bought it. The commission on the sale due plaintiffs from the owner was one-hundred and sixty-five dollars. After the contract of sale was signed, Curry returned to Illinois before defendant and after his departure defendant went to plaintiffs and represented to them that he brought Curry from Illinois to them to buy the farm and that he had paid his way over, and that he was entitled to one-half the commission they were to receive. Plaintiffs believed such representations and relied upon them as being true and, recognizing a custom to divide commission when a sale was made in such circumstances, they told defendant that when they received the commission they would divide. That in about thirty days afterwards they did receive their commission of one hundred and sixty-five, dollars, and paid to defendant eighty dollars thereof, he accepting that sum as his share. The evidence in plaintiffs’ behalf then showed that defendant’s representations as to bringing Curry to thém and paying his way were untrue. It is claimed by defendant that plaintiffs failed to make out a case and his demurrer to the evidence should [380] have been sustained. This claim is based mainly upon the contention that plaintiffs did not rely upon defendant’s representations, and that they lacked diligence and prudence in ascertaining whether they were true. There is no doubt that it is necessary to an action for fraud that the complainant must have relied upon the false representations; otherwise there is no deception or imposition. So it is also true that the courts will not listen to the complaint of one who, having an opportunity at hand, has refused to exercise his senses for his own protection. [Mires v. Summerville, 85 Mo. App. 183; Hendricks v. Vivion, 118 Mo. App. 417.] In the latter case, the question is discussed and authorities cited. In a criminal case for false pretenses, the Supreme Court has stated the law as not affording redress in every case of false and fraudulent representations “for if the representations are absurd or irrational, or such as are not calculated to deceive the party to whom they are made, or when the pretenses or representations are such that the party to whom they are made had the means at hand at the time to detect their falsity, then, and in that case, there would be no criminal offense under the true spirit and purpose of the statute.” [State v. Keyes, 196 Mo. 136, 151.] At page 155 of the report of the opinion in that case, Judge Fox quotes with affirmative approval from Woodbury v. State, 69 Ala. 242: “A false pretense, to be indictable, must be calculated to deceive and defraud. As of an actionable misrepresentation, it must be of a material fact, on which the party to whom it is made has the right to rely; not the mere expression of an opinion, and not of facts open to his present observation, and in preference to which, if he observed, he could obtain correct knowledge. Whether the prosecutor could have avoided imposition from the false pretense, if he had exercised ordinary prudence and discretion to detect its [381] falsity, is not a material inquiry. As a general rule, if the pretense is not of itself absurd or irrational, or if he had not, at the very time it was made and acted on, the means at hand of detecting its falsehood, if he was really imposed on, his want of prudence is not a defense. [2 Whart., Cr. Law, sec. 2128.]” To the same effect is State v. Cameron, 117 Mo. 641. Applying the rule announced in the foregoing case, we find that it does not bear out defendant’s contention. For, when defendant made the representations Curry had returned to Illinois and there was no opportunity to inquire of him, since he did not come back to Missouri until some time after the money was paid to defendant. It is true the money was not paid to defendant until near thirty days after his representations to plaintiffs and they could have written to Curry to verify defendant’s statement. But it was a part of plaintiffs’ case that defendant requested them not to let Curry know that he was getting part of the commission as they were neighbors in Illinois. Defendant insists that plaintiffs had knowledge that the representations with which they charged him were untrue, in that when Curry came to their office he said he came in response to their correspondence and that they believed their own correspondence brought him to them. But that did not conclusively determine that they did not believe defendant when he afterwards made his representations. Nor was Curry’s statement as to his coming necessarily inconsistent with what defendant afterwards represented. It was quite natural for Curry to say to plaintiffs when he met with them that he was the man who had been corresponding with them and had come to them in consequence of the correspondence. That was not inconsistent with defendant having aided in bringing him by his separate effort. It appears that when Curry and defendant, on their arrival in Barton County, went to plaintiff’s office no [382] one was in except Mrs. Martin, wife of one of plaintiffs. In a little while plaintiff Martin came in and his wife introduced Curry and defendant to him. She.was permitted, over defendant’s objection, to testify in plaintiffs’ behalf that when she introduced her husband to Curry, the latter said to her husband that he had corresponded with him for several months in regard to the farm which he purchased. Mrs. Martin was not a competent witness and she should not have been permitted to testify. She was not an agent. But we are compelled to say that the matter was not reversible error.. It could not possibly have had any effect on the verdict. The fact of correspondence was not disputed and was shown by other evidence in the cause. [State v. Gatlin, 170 Mo. 370, 371; Hamilton v. Crowe, 175 Mo. 648, 649.] Nor do we see any valid objection to evidence that Curry'and plaintiffs had been corresponding about the land. No attempt was made to show the contents of the letters, and it was not necessary to- produce them when the only thing shown was the fact that there was a correspondence. It is urged by defendant that there was. a settlement of the dispute between the parties. The idea of a settlement is based upon this suggestion: It appears that plaintiffs’ commission was one hundred and sixty-five dollars. One half of that sum as claimed by defendant would be $82.50; but when plaintiffs acquiesced in the demand, it was agreed between them and defendant that the latter would take eighty dollars. We do not see how the law as to settlements concluding-the parties to its terms can have any application. The agreement of defendant to take eighty dollars instead of eighty-two dollars and fifty cents, had for its foundation the reliance of plaintiffs in his fraudulent misrepresentations. Such misrepresentations were the cause of plaintiffs parting with the eighty dollars. The case could be stated in this way: Defendant fraudulently deceives plaintiffs into [383] the belief that they owe him eighty-two dollars and fifty cents, bnt states he will take eighty dollars and they pay him the latter sum. There is no settlement of a fraudulent claim because plaintiffs are then not aware of that character of claim. The point is not well taken. . It is also suggested that the verdict being general, it cannot be said upon which of the two counts it was based. The rule of law is that if there are several counts upon several distinct transactions or causes of action that there must be a separate finding on each count. But where there is but one transaction or cause of action stated in different ways in separate counts, a general verdict is not improper. [Lancaster v. Ins. Co., 92 Mo, 460; Nolan v. Bedford, 89 Mo, App. 172; Akers v. Bank, 63 Mo. App. 316; Maguire v. Transit Co., 103 Mo. App. 472.] What we have written disposes of a part of the objections made to the court’s action on the instructions. Instructions numbers 1, 2 and 3, embodied a hypothesis of a settlement and were for that reason alone properly refused. As álready stated, no element of settlement appeared in the case. Nor do we think the evidence justified the hypothesis that plaintiffs had opportunity to ascertain the truth of the representations in the' circumstances of the case as shown by the evidence. We have noted the criticisms made to the instruction given for the plaintiffs and think they are not well made. As stated at the outset, we have disposed of the case on the theory of the truth of the matters as the evidence in plaintiffs’ behalf tends to establish them. The evidence for defendant in many material respects flatly contradicts that of the plaintiffs, and tends strongly to show there was no fraud perpetrated or intended. But on questions of fact, the weight of evidence, etc., we must accept the verdict of the jury and hence we affirm the judgment. All concur.