Reynolds v. Davis. ment or statements, he should have requested such instructions. III. It is next contended that the trial court erred in permitting plaintiffs to introduce testimony showing what the value of the said farm would have Damages. been, if it had been as represented, because, as it is said, the petition does not state any facts authorizing the introduction of such testimony. For the same reason, similar complaint is made of Instruction Two. In a case of this sort and under proper pleading, a defrauded plaintiff may be awarded such damages as will enable him to receive not only the difference between the actual market value of the property and the price which he paid therefor, but something over and above such damages, if any, represented by the difference between the price actually paid by him for such property and what its value would have been if it had been as represented. Such damages enable a defrauded party to obtain "the benefit of his bargain." Recovery of such damages is authorized in Missouri, as is clearly shown by the following cases, which we find in respondent's brief: Kendrick v. Ryus, 225 Mo. 1. c. 165; Morrow v. Franklin, 233 S. W. 1. c. 232; Ryan v. Miller, 236 Mo. 1. c. 508; Addis v. Swofford, 180 S. W. 1. c. 555; Bank v. Byers, 139 Mo. 627; Boyce v. Gingrich, 154 Mo. App. 1. c. 204; Boyd v. Wahl, 175 Mo. App. 181. Pleading Appellant does not contend that damages, as for the benefit of the bargain made, cannot be recovered, but insists that such damages are special and must be pleaded to authorize a recovery thereof, and further contends that respondent was not entitled to recover such special damages in this case because they were not pleaded. and Proof. The sufficiency of the petition to support such recovery is therefore the real question to be considered under this assignment. If it is sufficient, both proof and instructions touching damages covering the benefit of the bargain were proper. If such petition is not suffi Reynolds v. Davis. cient to support such recovery, both the admission of such testimony and the giving of Instruction Two were error. Instruction two is as follows: "If the jury find the issues for the plaintiffs, they will assess their damages at such sum, if any, as represents the difference between the actual value of the interest in the Bert West farm, purchased by plaintiffs, and what such interest would have been worth if it had been as represented by defendant (if you find it was represented by him) not to exceed the sum of twenty-five thousand dollars." Respondents insist that their petition is sufficient to indicate that they sought to recover as damages the difference between the real and the represented value of the land. It may be they are correct in this. We will not consider it from that angle, as we prefer to dispose of the assignment upon broader grounds. In none of the Missouri fraud cases cited in the briefs does there appear to have been any discussion of the question of pleading with reference to the recovery of damages for the benefit of the bargain. It is the general rule that such damages may be recovered. In 27 Corpus Juris, at page 92, it is said: "The measure of the damages sustained by the purchaser where a purchase has been induced by fraud, is, according to the weight of authority, the difference between the real value of the property purchased and the value which it would have had had the representations been true." As appears from the cases previously cited, the Missouri rule is in line with the weight of authority. It needs no citation of authorities to demonstrate that, if the measure of damages is the difference between the real and the represented value, the difference between the price paid and the value as represented constitutes merely a part of the usual and ordinary damages and does not constitute special or unusual damages and is recoverable as general damages, within the limit of damages claimed in the petition, without being specially pleaded, 303 Mo. Sup.-28. Reynolds v. Davis. just as the difference between the real value of the property purchased and the price paid therefor is included in such general damages. Expressed differently, the measure of damages, where property has been purchased under actionable fraudulent representations, is the difference between the real value and the value. as represented, and this is made up of two elements, the difference between the real value and the price paid, plus the difference, if any, between the price paid and the value as represented. The two parts constitute the whole and conversely the whole is greater than and necessarily includes its parts. Broadly sketched, the petition charged the making by defendant and his agent Bower of certain representations for the purpose of inducing plaintiffs to purchase the land in question and that plaintiffs relied thereon and, by reason of said representations, they paid two-thirds of the purchase price of $41,000 therefor; that said representations were false, etc., and prayed for damages in the sum of $25,000. Proof of what the value of said land would have been, if it had been as represented, was offered by plaintiffs and admitted by the trial court. We think the pleading and proof were sufficient to authorize the giving of Instruction Two and the recovery as damages of the difference between the real and the represented value of the land. IV. Further complaint is made of Instruction Two, above set out, on the ground that it authorized the jury, in determining what the value of the land would have been if it had been as represented, to take Representations to be Considered. into consideration "all of the statements and representations claimed to have been made by Davis and did not confine the jury to the statements and representations claimed to have been made by defendant as to the value of wheat produced during the year 1917 and as to the ore body through which the shaft passed and the per cent of recovery thereof, and the showing of the drill holes near the shaft.' Reynolds v. Davis. The trial court submitted the case only on the representations mentioned, and, at the request of defendant, gave an instruction telling the jury upon what representations the case was submitted. Defendant asked no instruction withdrawing other statements and representations from the consideration of the jury. This attack upon Instruction Two in this court is without merit. Value at Instruction two is further criticized because it did not limit the jury to any particular time in fixing the value to be placed upon said land. The testimony as to such value was all directed to the time the land was purchased and we do not think the jury could have been misled by the instruction. Defendant asked no instruction on the point, except as the time was fixed in defendant's refused Instruction A, which is discussed hereafter. While it is undoubtedly true that the value must be that of the sale date, we do not think this omission, on the record before us, constitutes reversible error. Error is assigned to the giving of Instruction Three. It reads as follows: "The court instructs the jury that if you find and believe from the evidence that prior to the time of the sale from defendant to plaintiffs the plaintiffs had been interested and associated with the said C. M. Bower in Personal business transactions, and that they reposed trust and confidence in him, and if you further find that the defendant, knowing this, employed the said C. M. Bower to assist him in making the said sale, and that the defendant and the said Bower in furtherance of said attempt concealed from the plaintiffs the fact that the said Bower was being paid a commission for making said deal, and falsely represented to the plaintiffs and led them to believe that the said C. M. Bower was purchasing an undivided one-third interest in said real estate, covered in said purchase; and if you further find that by reason of said deception practiced by the defendant and the said Bower, they were led to believe and did believe that the said Bower was pur Reynolds v. Davis. chasing an interest in said real estate on equal terms with them; and if you further find that the plaintiffs were, by reason of said deception and fraud, induced to enter into the contract and purchase said real estate, then the court instructs you that defendant cannot rely upon the fact that plaintiffs did not make further investigation as to the truthfulness of the representations made to them, if any, by the said C. M. Bower and by the defendant." The first point made against the instruction is that "it does not require the jury to find from the evidence that plaintiffs, by reason of the fact that they and Bower had been associated in business transactions and that they reposed trust and confidence in Bower by reason thereof, believed and relied upon the fact that Bower was purchasing an interest in said real estate on equal terms with them. If the business transactions theretofore had between plaintiffs and Bower did not cause them to rely upon the truth of the statements made by Bower, then the rule of caveat emptor applies. The evidence shows that Bower and respondent Lusk had previously been associated together in a common enterprise, of which Bower was at that time the manager. The criticism of the instruction that it failed to require the jury to find that plaintiffs reposed confidence in Bower because of such previous business relations is purely technical and without substance. The natural inference from a finding that such previous business relations existed and that plaintiffs reposed confidence in Bower is that such confidence grew out of such previous business relations. Again, appellant contends there is no evidence of such business relations between Bower and either Lusk or Reynolds as would authorize them to rely upon his statements. We think there is substantial evidence of business relations between Bower and Lusk of a confidential nature, because Bower was shown to have been managing some common enterprise. We do not understand appellant to contend that such business relations must have existed between Bower and all the purchasers. |