Connecticut Mutual Life Insurance v. Guseman

ROBERTSON, P. J. — This is an action in ejectment. Defendant answered with a general denial and a plea of fraud and deceit in the sale of the land in-, volved, forty acres in Stoddard county, and asks judgment for damages in the sum of five hundred fifty-one dollars and fifty cents which he sought to have declared a lien on the land with an injunction against plaintiff interfering with his possession until said sum was paid. The court and defendant, over plaintiff’s objection, treated the defense in the nature of an action in equity, but as defendant is entitled to no relief either in law or equity, plaintiff is not prejudiced on — 239 — this point. The judge called a jury to pass on certain issues of fact. The jury responded to the interrogatories after which judgment was entered for the plaintiff for the possession of the land, one hundred dollars damages and finding the monthly value of the rents and profits of the land to be five dollars. The finding for defendant was that ¡he had been- damaged in the sum of five ¡hundred dollars and seventy-five cents, for which, less the one hundred dollars, judgment was entered in his behalf. The plaintiff has appealed. The plaintiff was the owner of many thousand of acres of land in Stoddard county which it acquired as the result of loans and was endeavoring to sell it. It had spent large sums on building roads, residences and encouraged the construction of extensive drainage systems for which, of course, its land was taxed. In its efforts to dispose of this land it had printed for distribution advertising folders setting forth in fulsome language the advantages and possibilities of this locality. One E. R. Bartlett, a real estate dealer located at Springfield, Illinois and operating under the name of the Illinois & Texas Land Company undertook the sale of the land here involved. The plaintiff held a deed of trust on the land as a result of the sale to one Rich. Default having been made by Rich the plaintiff was offering to sell the property. Bartlett called defendant’s attention to it, who, with Bartlett ,visited the land and afterwards entered into a contract under date of February 20, 1912, with the Illinois & Texas Land Company, to buy it for two thousand dollars, paying two hundred and fifty dollars cash and the balance in deferred payments. The defendant understood that the title to the land was not vested in Bartlett or his company and there was written on the back of the contract the following: “By agreement $12 is to be allowed Second Party as a credit out of the $1750 at the time of closing deal — 240 — for Ms railroad fares paid at time of going to examine the land before purchasing. “It is' understood and agreed that the land herein is to be conveyed clear of all Mortgage or Liens except the $1750 due from "the Second Party, and in case of failure the First Party to so convey within tMrty days from date of payment of earnest money, then the second party may elect to have Ms $250 earnest money returned to him and cancel contract.” The defendant inquired of other parties about this land before buying. He was about tMrty-three years of age, a farmer, and when he visited the land also examined several other tracts, but selected this one. He moved onto the land April 3,1912, and later Ms attorney wrote Bartlett the following letter which defendant signed and delivered, as he testified, by “sending” it to Bartlett, but which Bartlett testified was handed to him by defendant August 7: “Dudley, Mo., July 23, 1912. To The Illinois & Texas Land Company. “E. R. Bartlett, President. “You are hereby notified that I have cancelled and do hereby cancel the contract entered into with you on the 20th day of February, 1912, for the purpose of the northwest quarter of the southwest quarter of section'thirty-two (32) in townsMp -twenty-six (26) range nine (9), containing forty (40) acres, at fifty (50) dollars per acre a total of $2000. $250 cash in earnest money. The balance of $1750 payable in ten years. $175 the first January of each year and every year until paid in full, deferred payments to bear five per cent per annum. “Upon the execution of said contract written and signed in triplicate of wMch you have two copies, wMch said earnest money was duly paid on said February 20, 1912, At which time you undertook and agreed to convey said land or cause to be conveyed said land by good and sufficient warranty deed within thirty days — 241 — from the date of payment of said earnest money, $250. And in failure to do so then I the second party, might elect to have and received his' said $250 earnest money, return to him and oancel the contract. Which said contract you have forfeited and have wholly failed to execute and perform on your part to the injury and damages of the said party of the second part in this: Party of the second part moved from the State of Illinois to take said land and carry out his contract in that behalf at a cost of $78.50, and has cleared three acres of land on said premises, reasonable worth $4.50 per acre and the rent for the present year making a total sum of $92. And deduct therefrom the rent of the cleared land on said premises, twenty acres at $2.50 per acre total $50', leaving a balance of $42 due this party of the second part in addition to said $250 earnest money and interest thereon at the rate of six per cent per annum. All of which this party of the second part demands immediate payment. Party of the second part agrees to quit possession of said premises on or before the 31st day of Dec., 1912. and yield peaceable possession to party of the first part. Witness my signature on this the day and date first above written. “William Guseman.’’ After writing this letter defendant continued to reside on the land, cleared some of it of timber and continued to make improvements thereon, for the value of which he is seeking to recover in this ease. He also, after his attempted forfeiture, sowed wheat on the land. Before this letter was written or delivered defendant knew plaintiff was having some trouble in getting matters adjusted with Rich, but before this letter was written the plaintiff made and tendered a deed to defendant which defendant was advised be could get upon executing the deed of trust for the deferred payments as provided for in the contract, with some slight variation as to payments to which defend — 242 — ant did not object. Under date of October 23, 1912, defendant wrote to a party offering to sell the land at fifty-five dollars an acre, stating that by doing so he conld save the prospective purchaser three hundred dollars. The testimony of witnesses fixed the value of the land at the date of trial from ten to seventy dollars per acre. At the latter figure one witness testified that he bought land similar to that contracted for by defendant. Bartlett first negotiated with Rich for the purchase of the land who asked forty-two dollars and fifty cents per acre, and that was the price for which Bartlett was getting it from plaintiff. This land is located .between two drainage ditches. Bartlett testified, and defendant did not deny it ,that he offered defendant a profit of $2.50 an acre for the land, which defendant refused. To relate all of the acts of fraud charged against plaintiff as the result of Bartlett’s conduct would require too much space, but conceding for the purpose of this opinion that plaintiff is responsible for all Bartlett did and said, we can give no clearer idea of the fraud charged than to quote from respondent’s brief wherein the matters relied on here are condensed thus: “The testimony shows that appellant advertised its lands, of which the lands in controversy had been, and was a part, as the richest soil on earth, twenty to eighty feet deep and exhaustless in fertility; that it was supplied with pure water; that it was high, well-drained bottom land, and, in fact, the cream of the continent; that it was the land of promise and fulfillment ; that it was the land of big bargains and bigger crops; that the land produced two. crops yearly, and sometimes more; that it was the best farm proposition ever offered to a farmer, renter or investor; that it would yield yearly fifteen to twenty-five per cent profit in crops, and the like amount in advanced values, with no risk to the purchaser, that for every dollar the pur — 243 — eliaser invested, it would loan him three at five per cent only, and guarantee his title; that the purchaser would thus he able to read twenty-five to forty per cent profit on every four dollars, or better than 100 per cent on his actual investment, and that if the purchaser was a home builder he could pay for his lands from the crops thereon; that the natural drainage of said land was unusually good, the water passing easily quickly down in case of heavy rainfall, and that all the strata were sufficienty fine to bring up water by capillary attraction when it was needed, and that the climatic conditions, and pure water, made it truly a land of health- good alike for man, beast and crops,” As to the alleged' misrepresentation that the land was supplied with pure water the following occurred in the trial, which is a specimen of the disposition that prevails throughout the case on defendant’s part: “Q. What, if anything did Bartlett say to you about the supply of pure water on this forty acres of land? A. He said it was the best that could be got. Q. What was the truth about it? A. Well, the deep wells — . Q. First, how did you get water?” Then the testimony goes off into the method of driving down pipes to get surface water, which, of course, was not good. The adroit interruption of the witness when he was about to proceed to show that there was a good run of water convinces me that there is nothing in this charge. While the representations of plaintiff and Bartlett of this land was not what appeals to the conscience of every man as a commendable method of attracting attention to salable lands, yet in the absence of the wicked' design to defraud I am convinced that there is no authority to hold them liable for-fraud or deceit. [Wilson v. Jackson, 167 Mo. 135, 66 S. W. 972; Adams v. Barber, 157 Mo. App. 370, 392 and 393, 139 S. W. 489; South Missouri Pine Lumber Company v. Crommer, 202 Mo. 504, 521, 101 S. W. 22; Kilpatric v. Wyler, 197 Mo. 123, 159 and 160, 95 S. W. 213; Brown v. South — 244 — Joplin Lead and Zinc Co., 194 Mo. 681, 700, 92 S. W. 699; Cornwall v. McFarland Real Estate Co., 150 Mo. 377, 383, 51 S. W. 736; Peters v. Lohman, 171 Mo. App. 465, 156 S. W. 783.] The case of Stonemets v. Head, 248 Mo. 243, 154 S. W. 108, relied on by respondents presents an entirely different state of facts than are prevalent here. In that case a wicked design was prominent in every act of the party against whom complaint was made. We cannot find in the case at bar that there was present in the representations of plaintiff or Bartlett any evil intent. A reading of the above cited cases will disclose that the law does not brand as fraudulent the mere ‘‘vague laudatory flourishes” of a seller; ordinarily and in this case, representations as to value are mere expressions, of opinion, and there is gr'eat doubt if the values were over stated. The statements as to probable profits, depth of soil, no risk to purchaser, and like assertions were nothing more than the statement of the opinion of the seller. It is also evident that defendant did not when he had the letter of July 23, 1912, written, consider that he had been swindled, because in that letter he bases his claim on the grounds of the default of Bartlett under the contract of purchase, although Bartlett had offered to comply therewith, with the exception of the variation in the installment notes as above mentioned. And, as before stated, after writing this letter defendant proceeds with the improvements thereon. In the letter he charges for clearing three acres of land and at the trial he testified that twelve acres were cleared; thus he must have cleared nine acres after writing the letter instead of two as he testified at the trial. He proposed to retain possession of the land until December 31, 1912, and to pay as rental for the cleared land-from April 3, 1912, to that time $2.50 per acre and this for land, as he testified, worth only ten dollars per acre. — 245 — Convinced, as I am, that defendant is entitled to no relief, either at law or in equity, the judgment in his behalf will be reversed and the cause remanded with directions to set aside the judgment as it now stands and to enter one in behalf of plaintiff in the same form and substance and as of the date of the present one and against the defendant on his answer and counterclaim. Sturgis, J., concurs in result and filed separate opinion.. Farrington, J., dissents and files separate opinion.