Enyeart v. Peterson

ROBERTSON, P. J. Plaintiff owned a large tract of land in Nebraska and defendant owned eighty acres in Howell county, this State. They traded farms and the plaintiff claiming to have been defrauded by the defendant, brought this suit to recover damages. Upon a jury trial a verdict was returned for the defendant and plaintiff has appealed. The parties to the suit are married women whose sons transacted most of the business which resulted in the trade. The petition in this case first sets out in full the contract for exchange which is dated January 30,1913, which contains a general description as to the location of defendant’s land and undertakes to describe the improvements thereon. The petition then proceeds to allege that as a further inducement to enter into said contract the defendant caused to be presented the plaintiff a description of the land which represented there were other improvements on defendant’s land than were described in the contract. There are but few questions involved. . One is as to the failure of the trial court to admit in evidence the additional written description of the defendant’s land, and another is as to an instruction given in behalf of the defendant wherein the jury was told that this action is founded upon a written contract and that in determining the issues no consideration should be given any statements or representations made by either of the parties prior to the execution of the contract as such representations and statements were merged in and governed by it. At the time the plaintiff [522] offered in evidence the additional land description there had been no showing made that it emanated from or had ever been recognized by the defendant as an authoritative description of her land and the improvements thereon. The defendant objected for this reason and the court sustained the objection. Afterwards the plaintiff offered testimony tending to prove that this description was reported by the defendant to be correct but did not thereafter offer the description in evidence. It is clear, therefore, that the trial court cannot be convicted of error in excluding it at a time when it was inadmissible. While the court’s instruction above referred to violated the rule that a defrauded party is not confined in his action to testimony of the ultimate agreement between him and the party who has defrauded him (Judd v. Walker, 215 Mo. 312, 335, 114 S. W. 979) yet in a case of the character of the one now under consideration, where the plaintiff has cast her allegations solely on the representations contained in the contract, there is no reversible error in the giving of the instruction complained of. The plaintiff also complains that error was committed by the trial court in allowing evidence to be introduced as to the value of the Nebraska land. This complaint, however, came too late. The plaintiff first offered much testimony to this effect and did not complain of it until the defendant commenced showing the small value of the Nebraska land. If it was error to admit this evidence plaintiff induced it and has foreclosed her right to complain, even though she may have been worsted on this issue. The instructions were silent on this phase of the case. There being no reversible error in the case the judgment will be affirmed. Farrington, J., concurs. Sturgis, J., concurs, except as to the criticism of the defendant’s instruction above mentioned.