Lewis v. Brookdale Land Co.

Sherwood, J. From the finding of facts in this case already set forth, it is apparent that that portion of the agreement between plaintiff and defendant relative to the sale of ten thousand front feet of lots had been made in good faith and in fulfillment of that contract, and the evidence certainly tends to support that finding. But the evidence and the finding only show that some $30,000 had been paid by the defendant company to the Steel Car Company and only about $29,500 of this sum was derived from the cash payments received upon the land contracts. And as found by the court and as is plainly evident from the defendant company’s contract with the Steel Car Company, the former was not bound to pay any more money to the latter than $50,000, and only such portions of such sum as should be realized from the sale of lots, and then but to the extent of $5 per front foot of lots sold. The contract made between plaintiff and the defendant company reiterates the idea of the source whence the $50,000 was to come. Upon this basis of facts and of findings the question arises whether the lower court was warranted in entering a decree for the defendant company. 1. It is contended that plaintiff is interested in the contract entered into between the car company and the defendant land company, and in the maintenance and operation of the car company’s works for the term of five years. But this is an obvious error. To the con [685] tract between the two companies plaintiff was a mere stranger, and was not in privity with either of the contracting parties in that contract. The contract was not made for his benefit, nor was he named therein, and the mere fact that he in common* with all other citizens of St. Joseph might derive benefits incident to the completion and operation of the large works then in contemplation, did not and could not alter his. status towards the two contracting parties. Insurance Co. v. Trenton Water Co., 42 Mo. App. 118; Howsmon v. Trenton Water Co., 119 Mo. 304, and cases cited; Kansas City ex rel. v. O'Connell, 99 Mo. 357; Land Co. v. Pitt, 114 Mo. 139; Nickerson v. Hydraulic Co., 46 Conn. 24. Under these authorities it is very plain that plaintiff can not rely in any degree on the contract between other parties.' Whatever ground for redress and relief he has must rest and be founded on the contract to which he himself was a party, and on its terms alone. Plaintiff has no contractual relations, with the car company, and that company owes him no duty, nor is bound to him by any form or manner of obligation. See authorities, supra. 2. But granting that plaintiff’s contract with defendant has not met with literal compliance, either by the sale of the requisite number of lots, or as to the payment of the $50,000, what then? Is he therefore entitled to the relief he seeks? It is by no means clear that he is, and for this reason: \ The evidence shows that the car company’s works were secured and located as required; were built and in actual operation for two months. and a half and until they were consumed by fire. Now, considering the situation of the parties hereto and to the litigated contract and the terms thereof, it seems to be evident that the ultimate object in view, the cap sheaf oí the contract was the securing of the location of the car company’s [686] works at the point designated; the other portions of the instrument were but subsidiary to that end. That this was the construction placed by plaintiff himself, on the contract, is shown by his testimony on cross-examination, where he says: 11 If they (the car company) had rebuilt their works I would not have brought this suit.” The authorities cited by defendant abundantly support the position that if the end to be attained has been secured, if the contract has substantially been performed, minor matters and measures conducing thereto, which were but means and conduits to that end, although they remain to some extent unperformed, will be disregarded. And this is especially the case where, as here, the .lot purchaser derived no benefit whatever from the per-f orinan ce of the minor conditions, except as they caused the location of the car works. Conn v. McCollough, 12 Mo. App. 356; Railroad v. Tygard, 84 Mo. 264; People ex rel. v. Holden, 82 Ill. 93; Bridge Co. v. Pomroy, 15 Pa. St. 151; Courtright v. Deeds, 37 Iowa, 503; Railroad v. Stockton, 51 Cal. 334; State ex rel. v. Hastings, 24 Minn. 78: Holmes v. Oil Co., 21 Atl. Rep. 231. 3. There is no pretense in the petition that any fraud was practiced, or misrepresentations made, in securing from plaintiff the land contract, but the petition alleges that defendant falsely represented to plaintiff that the Steel Car Company had received at its buildings its machinery sufficient for its manufactory, etc., and that defendant had already sold ten thousand front feet of its lots, etc., and paid the Steel Car Company $50,000, whereupon, relying solely upon these representations, plaintiff paid defendant the further sum of $183.33 and executed his two notes and secured the same by his deed of trust, etc. Thq evidence, however, shows that this payment, etc., was on the [687] tenth day of August, 1889, when the works had been in active operation for one month and ten days. This being the case, it was but a matter of common prudence for plaintiff to have pursued such investigations as would have led to the ascertainment of the truth or falsity of such representations before he closed the matter by taking a deed, giving his notes and executing his deed of trust. The means of investigation and information were open to plaintiff and he should have made use of them. On this topic it is said by an eminent jurist and author: “Where ordinary care and prudence are sufficient for full protection, it is the duty of the party to make use of them. Therefore, if false representations are made regarding matters of fact, and the means of knowledge are at hand and equally available' to both parties, and the party, instead of resorting to them, sees fit to trust himself in the hands of one whose interest it is to mislead him, the law, in general, will leave him where he has been placed by his own imprudent confidence.” Cooley on Torts [2 Ed.], 570, and cases cited. . This case is not like one where confidential relations exist; for here the parties dealt at arm’s length, and the means of knowledge were near at hand and readily obtainable. These remarks apply, even if the representations are to be conceded to be false, something scarcely reconcilable with the court’s finding of facts. 4. Other considerations tend toward the same conclusion as that reached by the lower court. Granting that there was fraud practiced on plaintiff as claimed in his petition, yet how can it avail him anything in the circumstances presented by this record? The rule in such cases is that upon discovery of the fraud, promptly the party must repudiate the fraud and [688] rescind or offer to rescind all the instruments and obligations which bind him to the obnoxious transaction. Estes v. Reynolds, 75 Mo. 563; Taylor v. Short, 107 Mo. 384; Hart v. Handlin, 43 Mo. 171, and other cases. Now, plaintiff instituted the present proceeding something over two years after making the land contract; eighteen months after his contract was closed up by passing deeds, and six months after he knew of the facts alleged in his petition. 5. Moreover, even if fraud was practiced on plaintiff inducing him to give his notes and execute a deed of trust, it does not appear that this resulted to his injury, and if our construction of this land contract made with plaintiff is correct, then he was not injured, having secured the location of the car works where desired, which was the main thing contracted for. And with the maintaining of those works when located, he had no concern, and, of course, if he had not, it could not possibly operate to his injury that the ten thousand feet of lots were not sold, nor the $50,000 produced by such sale paid to the ear company. If this be true, then plaintiff has not been injured, even if the charge of fraud be held as proved, because it requires the concurrence of loth fraud and injury to warrant equitable relief. A party must not only be misled by false representations, but he must be misled to his injury before he can successfully seek equitable interposition. State ex rel. v. West, 68 Mo. loc. cit. 232; Lenox v. Harrison, 88 Mo. loc. cit. 496. The foregoing reasons, without adverting to others, afford ample grounds on which to say we affirm the decree of the circuit court. All concur.