Hawman v. McLean

ELLISON, J. Plaintiff’s action is for fraud and deceit. She recovered judgment in the trial'court. A new trial was granted and plaintiff appealed from that order. It appears that plaintiff owned lands in Andrew county, which she exchanged for lands owned by defendants in Arkansas, and that plaintiff then exchanged the Arkansas land for real estate in the city of St. Joseph, Missouri. Plaintiff alleges that defendants induced her to make the exchange for the Arkansas land by their false and fraudulent representations of its value, its productive qualities and the improvements thereon — matters she did not know and could not know about, and concerning which she relied upon the representations made by defendants as being true. That the representations were made to her for the purpose of deceiving and defrauding her. It seems that plaintiff’s exchange of the Arkansas land to third parties for the St. Joseph property was unfortunate and that the result was she realized practically nothing from it. At the trial plaintiff testified in her own behalf, over the objection of defendants, as to the poor and disastrous results of her exchange for the St. Joseph property. The court gave two instructions withdrawing such evidence from the consideration of the jury; but when it came to consider the motion [432] for new trial the court, in its discretion, concluded that injury had been done by allowing such evidence to be heard which could not be cured by withdrawing it, and therefore sustained the motion for the reason that such evidence had been heard. We think a trial court can very properly grant a new trial, in some circumstances, on the ground of having allowed improper evidence though it does attempt to withdraw such evidence by instruction. The court, in many instances, could well conclude that material injury had been done, the influence of which could not be neutralized by an instruction. But plaintiff insists that defendants themselves first called out such improper evidence in their cross-examination of plaintiff, and that her offense, if it be one, was committed in redirect examination by way of a response, in some degree, to defendants having led the way. The record does, to some extent, bear plaintiff out; yet, on account of what follows, we need not say whether the court abused the discretion which we must allow it in the matter of granting new trials. It is a fully recognized rule that though a reason assigned for granting a new trial be not justified by the record, if any other good cause is made by the motion, the order will be sustained on appeal. [Hewitt v. Steele, 118 Mo. 463, 474; Bank v. Wood, 124 Mo. 72; Millar v. Car Co., 130 Mo. 517.] In this case the measure of plaintiff’s damage was the difference between the actual value of the Arkansas land at the time of the exchange and what would have been its value if it had been as represented. [Bank v. Byers, 139 Mo. 627, 659; Caldwell v. Henry, 76 Mo. 254, 257; Hitchcock v. Baughan, 36 Mo. App. 216, 224.] But an instruction was given for plaintiff which authorized the jury to allow as damage the difference between the value which the parties put upon the Arkansas land when the exchange was made, and its actual value. This would allow the jury to take as basis of plaintiff’s dam [433] age the value she aud defendants agreed was the value; Avhen her damage could not be more than her loss, and her loss, of course, should be measured by the value of the thing lost, that is to say, the land. Plaintiff undertakes to point out that defendants did not object to that instruction. We have examined the record and find they did. The instruction was numbered 2, for plaintiff, and it was modified by the court. Plaintiff objected; and then followed defendants’ objection and exception. Plaintiff states the objection and exception was taken to the instruction as originally offered. That cannot be, for as originally offered it Avas not given and defendants could not have had any ground for exception. Defendants’ exception was to the giving of instruction numbered 2, and the only instruction numbered 2 given for plaintiff was the modified one. The record leaves no question as to defendants making the exception to the instruction given. The order granting the neAV trial is affirmed. All concur.