ity to the attorney hereinbefore mentioned to examine the title, and told him this attorney had examined it and that this attorney "was a regular attorney here." Heidelberger then asked him if Mrs. Brigham ever saw the deed she was to get, and who examined that? Judy replied, "We examined that for her." Heidelberger also testified that there was another paper shown him signed by Mrs. Brigham, which authorized the Judy Investment Company to close the transaction whenever the attorney who examined the abstract had passed on the title. This paper, however, was not produced by defendants, and does not appear in evidence. Heidelberger asked Judy why all the hurry, and Judy replied that he knew the real estate business and the time to close a real estate transaction was when you had the opportunity; that everything was absolutely regular, etc. he may name as soon as agent is in position At one of his visits to plaintiff's home, Hendrickson obtained her signature to a paper, dated July 19, 1913, reciting that she had the abstract to the flat, "and after having it examined hereby agree to accept the title in its present condition." authorized the placing on record of the deed conveying the flat to her and the turning over of her deed to the farm. The document It also Heidelberger, when shown the contract, saw that Washburn was the man who had signed it as second party and, as his office was in the same building, he and Mrs. Brigham went to see him about it. Washburn expressed surprise that they were dissatisfied, that he knew everything was regular, that it was a simple transaction, that he was getting $1,550 of the money, and that he would help them all he could to get the matter straightened out. Just how he would help them or how they could get it "straightened out" by mere investigation is not clear; and the utter futility and hopelessness of such an effort becomes more apparent when it is known that, as hereinafter stated, plain-contained this further remarkable sentence: tiff's farm was never deeded to Washburn, nor did he obligate himself in any way until he had secured a purchaser out in Kansas for the farm, and, when the deal was closed, the farm had gone to the Kansas purchaser who knew nothing at all of the transactions with plaintiff, and who was therefore an innocent purchaser for value, of which Washburn was well aware at the time he promised to do all he could to help them straighten things out. The evidence shows that Washburn told Judy Investment Company or anybody in con"I hereby release G. T. Hendrickson, T. D. nection with this deal from any claims whatsoever in this transaction." On Tuesday, July 22d, Johnson, the Kansas purchaser of the farm, came to Kansas City and met Washburn, Judy, and Hendrick son. Matters were then in this situation: They had the deed to the farm from plaintiff to Lulu M. Smith. Washburn had Lulu M. Smith's mortgage for $7,000 on the flat, and doubtless also the deed to the flat from him to her. He sent Hendrickson out to his house Hendrickson to get a deed from the plaintiff, to get Lulu M. Smith's signature to a deed to and that he gave Hendrickson the abstract Johnson conveying the farm to him. When of title to take with him when he went to this was obtained, the four men met in the see plaintiff to get her to make the contract; Bank of Commerce and Johnson paid his that Hendrickson showed her the abstract $2,000, and the deeds were all placed of recand pointed out to her a deed of trust there-ord and the deal closed. At the very time in for $7,000. He also showed her other conveyances wherein the consideration was $15,000 subject to said $7,000 deed of trust. As a matter of fact, however, said deed of trust had been released, and there was no deed of trust on the property. The evidence shows that at some time after Mrs. Brigham signed the contract to convey her Kansas farm, Hendrickson inserted in said contract this clause, "Warranty deed to above land being put up on this contract to be turned over by agent to second party or any one this was being done, plaintiff and her attorney were trying to get Hendrickson and Judy to turn over the abstract for examination and let plaintiff's attorney see the contract she had signed. The deed to plaintiff conveying the flat to her subject to the $7,000 mortgage was placed on record before she knew that such a deed was made, and she did not know that the deal had been closed until her attorney discovered it for her the next morning, Wednesday, July 23d. The moment Johnson paid over the money sufficient evidence to authorize the jury to believe and find that Hendrickson, Judy, and the investment company were all one and the same, and that they conspired together to entrap plaintiff and despoil her of her property, and succeeded in doing so. As to the defendant Washburn, his position is that Hendrickson was not his agent; that he had nothing to do with defrauding plaintiff and knew nothing of it; that Hendrickson, as plaintiff's agent, tried to trade him the farm for the flat, but that he would not trade until Hendrickson suggested the farm could be sold for cash, and that he then agreed to trade, provided that could be done; and that Judy was merely his agent to convert the farm into cash; and that neither he nor Judy had anything to do with Hendrickson in getting plaintiff to trade. Of course, if this be true, then, if any fraud was perpetrated upon plaintiff, it was Hendrickson alone who did it, and he alone would be liable to plaintiff. The jury, however, did not believe these contentions. And there is substantial testimony to justify the jury in rejecting them. and the deal was closed by the delivery of to go to the jury. Undoubtedly there was the deeds, Washburn, for the first time, signed the contract which plaintiff had signed at the outset, dated July 11, 1913, in which the parties agreed to exchange properties. The only explanation given as to why he should sign the contract after the deal provided for therein had been fully closed was that it was desired that everything should be regular. Out of the $2,000 Washburn got from Johnson for the farm, he paid Judy over $300, and also certain expenses and taxes, leaving $1,550 for himself. And on the same day the deal was closed, July 22, 1913, he signed a paper acknowledging the receipt of $1,550 in cash being his price in full, after deducting mortgage, for the farm for which he traded Sarah F. Brigham a flat located at 410 Wabash avenue, "hereby releasing T. D. Judy Investment Company or any one else connected with this deal from any claims whatsoever." When this paper was introduced in evidence the words "or any one else interested" had a pen line drawn through them, and Washburn testified he drew a line through them at the time he signed the paper. [1] There was testimony amply tending to show that the flat was worth very little more than the $7,000. The net result to plaintiff of the transaction, therefore, was that she deeded away the equity in her farm and got nothing in return. The result to defendant Washburn was that he got the old lady's equity in the farm and also kept the value of the flat in the shape of a $7,000 mortgage thereon. And this was done without Washburn's name appearing in the transaction at all, except in the papers signed and kept by his codefendants. Washburn was a real estate man of 30 years' experience, and he undoubtedly knew the value of his flat, and that when he sold it subject to a $7,000 mortgage he was conveying nothing of value. He says Hendrickson was not his agent, and yet he let Hendrickson have the abstract to the flat when Hendrickson went to plaintiff at the outset to get her to sign a contract. He says he had no idea of trading until after he learned he could sell the farm for cash, and yet on the evening of the same day that Hendrickson obtained the contract, Hendrickson, in obedience to Washburn's suggestion that he get a deed, goes to plaintiff with a deed made out to Washburn's negro cook, the person Washburn had selected to make the transfer of title. When The theory on which plaintiff's case was tried was that Hendrickson, Judy, and the Judy Investment Company were all one and the same; that Hendrickson and Judy were the active agents of the corporation; that Hendrickson went to plaintiff at the start it they had Washburn's flat for sale or exchange; and that the defendants conspired together to obtain plaintiff's property by having Hendrickson obtain her confidence and secure her consent to act as her agent and then tie her up with the various contracts and secure her property in the manner hereinbefore set forth. The separate answer of the defendant Washburn as well as the separate joint answer of the defendants T. D. Judy, the T. D. Judy Investment Company, and G. T. Hendrickson were general denials. The jury found a verdict for plaintiff and against all defendants,, and assessed her actual damages at $5,000, and punitive damages at $5,000. The trial court, before overruling the motions for new trial, made the plaintiff enter a remittitur of all punitive damages, and judgment was entered in plaintiff's favor for her actual damages in the sum of $5,000. All three of the defendants have appealed. It is contended by all of them that the was to show her Washburn's flat and he showed her no other property. He was endeavoring to trade this before he obtained a contract from plaintiff. Everything done was in Washburn's interest and he could not fail to know this. Washburn claims that he would have nothing to do with the trade until he learned he could dispose of the farm for cash. Doubtless he did not care to close any deal unless this could be done and in the manner it was done, but there is evidence which would authorize the jury to believe that as soon as the contract was signed by plaintiff Washburn himself endeavored to find a purchaser in Kansas for the farm. He claims that Hendrickson took him down to see Judy to get the latter to see if he could sell the farm for cash. His office was on the next floor above that of Judy's, and as both had been in the same business for years it is inconceivable that they were not acquainted with each other. And there is evi Washburn also claims that his agreement to trade was only on condition that the farm could be sold for cash. And yet the written authority given Judy (but addressed to the T. D. Judy Investment Company) was not to sell the farm, but to trade his flat for the farm. And the trade was not conditioned upon Judy's being able to sell the farm, but the authority merely provides that Washburn was to have $1,550 cash at the closing of the deal, "providing you can sell the farm to net me the above." [2, 3] But, as we have stated, the evidence amply tends to show that Hendrickson, Judy, and the Judy Investment Company were all one and the same; that all three were actively working together to ensnare and overreach the plaintiff; that not only Judy and the Judy Investment Company, but Hendrickson also, were agents of Washburn. This being so, then since the transaction was brought about by the fraud of Washburn's agents, and he has reaped the benefit of that fraud, he is liable in damages to plaintiff because of that fraud, even though he did not actually participate therein or know of it himself. He cannot reap the benefits of his agent's fraud and then escape by saying he 'was not personally cognizant of any fraud. It will not do to say that plaintiff cannot recover in this case because it was the fraud of her own agent that deceived her. Because, as a matter of fact, the fraud was perpetrated by getting her to choose one of them as her agent, and then in that guise and by that method deceiving and overreaching her. [4, 5] It is claimed that plaintiff has lost her right to proceed herein because she elected to pursue one of two inconsistent remedies, in that she brought a suit in Kansas to disaffirm the trade and recover her farm. This defense is based upon the doctrine of equitable estoppel, and therefore, to be available, must be pleaded in the answer. Stones v. Richmond, 21 Mo. App. 17; Kansas Moline Plow Co. v. Wayland, 81 Mo. App. 305. The only reference in the record to any other suit on the part of plaintiff is contained in the original and first amended petition filed in this case. No other evidence or mention thereof appears anywhere in the Whether a suit, after being brought in Kansas, was dismissed as soon as the facts were case. ascertained does not appear. It has been held that the bringing of a suit which was dismissed before trial is not such an election as will prevent the bringing of another suit to enforce a different remedy. Otto v. Young, 227 Mo. 193, 219, 127 S. W. 9; Steinbach v. Murphy, 143 Mo. App. 537, 128 S. W. 207; Johnson-Brinkman Com. Co. v. Missouri Pacific R. Co., 126 Mo. 344, 28 S. W. 870, 26 L. R. A. 840, 47 Am. St. Rep. 675. In the original petition filed in this case, after stating a portion of the same facts as in the second amended petition on which the case is tried, plaintiff, in enumerating her damages, says she has been put to great trouble and expense in employing attorneys to procure cancellation of the deeds to her farm, and will be put to further expense in regard thereto in the future. In the first amended petition, after likewise alleging some of the same facts as herein, she says it has become necessary to bring suit in Kansas to cancel the deeds on her farm, and that she has incurred and will have to incur in the future large expense in connection therewith. This is all the reference there is in the case to any election on the part of plaintiff herein. In the second amended petition on which this case was submitted, no reference is made to any expense incurred or to be incurred in bringing suit in Kansas, but the allegation is made that the Kansas farm is "wholly lost to plaintiff." If the defense of inconsistent election had been pleaded, the opportunity may have been given to show what were the facts as to the alleged bringing of such suit in Kansas; but since that defense was not pleaded, we need not go into it. [6, 7] However, defendants say plaintff submitted her case to the jury upon a rule of damages outside of her pleading. They claim her last petition measured her damages in terms of the value of the equity in her farm and of the loss she sustained by reason of the deprivation of the same. Whereas, the court instructed the jury that if they found for plaintiff the measure of her actual damages "is the difference between the actual value of the Wabash flat at the time it was exchanged by defendant Washburn to plaintiff and what would have been its actual value if it had been as represented to plaintiff by defendant G. T. Hendrickson." This was the correct rule. Hawman v. McLean, 139 Mo. App. 429, 122 S. W. 1094; 20 Cyc. 132. Now the petition contained all the averments necessary to present the question of damages under that rule. It alleged that the flat was not worth over $7,000, but that it was fraudulently represented to her to be worth $15,000, and that relying upon said representations and believing them to be true, she agreed to trade, and that the transfer was made in the manner hereinabove indicated. It is true she avers that she lost the equity in the Kansas farm, but this was not alleged as an enumeration of her damages, but only as to how plaintiff was affected by the fraudulent conduct alleged. She alleged she was actually damaged in the sum of $10,000, which was far more than the equity in her farm. Besides, evidence was offered by both sides throughout the trial on the value of the flat according to the rule of damages submitted, and no objection thereto was made. The petition set out the facts fully and alleged everything necessary to enable the court to submit the correct measure of damages, and it therefore became the court's duty to submit the correct rule, and the record clearly shows that the issues involved in the correct rule were litigated and no one was deceived or misled by the petition. were remitted, we need not decide the question whether such damages are properly allowable in this kind of a case. The only question is: Did the mere giving of the instruction on punitive damages constitute prej [8] Defendants insist that plaintiff did not rely upon the representations made to her. That issue was submitted to the jury, and they found that she did. The evidence clear-udicial error? It can be considered so only ly justifies their finding. Plaintiff did not rely on her son's judgment. She knew, as did he, that he knew nothing of values. [9] Neither can it be said that representations as to value will not constitute actionable fraudulent representations, under the circumstances of this case where they are made by an agent to his principal, and the latter relies on them, believing they are true. Reed v. Carroll, 82 Mo. App. 108; Van Raalte v. Epstein, 202 Mo. 173, 99 S. W. 1077. The parties were not on an equal footing, and the circumstances of this case bring the representations as to value within an exception to the general rule. Stones v. Richmond, 21 Mo. App. 17. [10] It is urged that the giving of an instruction on punitive damages constituted reversible error, even though the trial court ordered a remittitur of all such damages. In Sutherland on Damages (3d Ed.) § 1178, it is said: on the theory that it was likely to prejudice the defendants in the eyes of the jury, and thereby affect the question of actual damages. We do not think the mere giving of the instruction on punitive damages can be held to be prejudicial error affecting the award of actual damages under the circumstances of this case, and that the case ought not to be remanded on this account. It was not so held in Hoffman v. Gill, 102 Mo. App. 320, 77 S. W. 146, where the error as to punitive damages was corrected by a remittitur of the punitive damages enforced in the appellate court. Various objections are made to plaintiff's instructions, but they are without merit. The foregoing disposes of the real points in the case. The judgment is affirmed. All concur. Judge. (No. 11915.) "On the principle upon which such damages STATE ex rel. WILSON v. BURNEY, Circuit are allowed where the doctrine of punitory damages prevails, it is not easy to see how they are to be excluded as matter of law in cases of willful and deliberate fraud followed by actual damage." In 1 Sedgwick on Damages (9th Ed.) § 367, it is said: "If the injury was inflicted through fraud, this alone affords ground for exemplary damages, and so where the injury is one with corrupt motives, since in such a case the injury is necessarily malicious." (Kansas City Court of Appeals. Missouri. 1. PROHIBITION 27- REVIEW - PRESUMP TIONS. - Where a motion to quash notice to take depositions was made on two grounds, one of which was valid and the other not, it will not be assumed, in a hearing in prohibition, that it was sustained on the invalid ground. [Ed. Note. For other cases, see Prohibition, Cent. Dig. § 76; Dec. Dig. 27.1 2. PLEADING 406(1)-DEMURRER-MODE OF OBJECTION-NOTICE TO TAKE DEPOSITIONMOTION TO QUASH. A motion to quash a notice to take depositions cannot be made to do duty as a demurrer to the petition. [Ed. Note. For other cases, see Pleading, Cent. Dig. 88 1355, 1357, 13582; Dec. Dig. 406(1).] 3. VENUE 24 RIGHT TO SUE - VARIOUS COURTS OF SAME CIRCUIT. It is frequently said that punitive damages are awarded in cases where there has been willful fraud followed by damages. Albers v. Merchants' Exch., 138 Mo. 159, 39 S. W. 473, 13 Cyc. 106. In Ohio it was held that where an agent by false and fraudulent representations to his principal obtained possession of the latter's goods and converts them, exemplary damages may be allowed. Peckham Iron Co. v. Harper, 41 Ohio St. 100. Other cases hold that where the plaintiff has been made the victim of "a gross and willful fraud," punitive damages may be allowed. Platt v. Brown, 30 Conn. 342; Kelly v. Valentine, 17 Ill. App. 89; Byram v. McGuire, 3 Head. (40 Tenn.) 530; Nye v. Merriam, 35 Vt. 438; Millison v. Hoch, 17 Ind. 227; Oliver v. Chapman, 15 Tex. 400. In 20 Cyc. 142, it is said that while punitive damages will not be awarded in an ordinary action of deceit, yet such damages may be allowed "where the wrong involves some violation of duty springing from a relation of trust or confidence or [Ed. Note. For other cases, see Venue, Cent. where the fraud is gross or the case presents Dig. § 38; Dec. Dig. 24.] NONSUIT ~ 53(1) other extraordinary or exceptional circum- 4. DISMISSAL GROUNDS-UNDUE ADVANTAGE. stances clearly indicating malice and willfulSince a resident of Kansas City may sue ness." However, since the punitive damages in the Independence court, the mere fact that Rev. St. 1909, § 3995, constitutes Jackembracing Kansas City and Independence. son county as the Sixteenth judicial circuit, Laws 1905, p. 121, invested the Independence judge with all the powers of the other judges of the circuit, and authorized him for good cause shown to transfer causes to the other courts of the circuit. Such provisions were reenacted in Laws 1913, p. 211, $$ 3, 6. Rev. St. 1909, § 1751, provides that suits instituted by summons shall be brought in the county of a resident of Kansas City may sue in the Indedefendant's or plaintiff's residence. Held, that pendence court, whose jurisdiction extends to the whole county. AND he sued there to escape appointment of a com- [Ed. Note.-For other cases, see Dismissal and The transfer of a cause for good cause shown, being discretionary with the trial judge, his order will not be reviewed in the appellate court, in a proceeding in prohibition or even on appeal, unless there was an abuse of discretion, or the cause shown was not good; the presumption in favor of his ruling being very strong. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3836: Dec. Dig. 965; Prohibition, Cent. Dig. §§ 20-22; Dec. Dig. 5(1).] 6. PROHIBITION 27-SCOPE OF REVIEW PRESUMPTIONS. Where a motion for transfer of a cause from one court to another of the same circuit alleges good grounds. it must be presumed, in a proceeding in prohibition, that the order of transfer, though it fails to state the grounds on which it was made, was supported by proof of good cause. [Ed. Note. For other cases, see Prohibition, Cent. Dig. § 76; Dec. Dig. 27.] 7. COURTS 486-TRANSFER OF CAUSE "FOR GOOD CAUSE SHOWN." Under the statute providing for transfer of causes for good cause shown, the phrase "for good cause shown" embraces causes relating to facilitation of court business, convenience of parties, and those which the court in its discretion may regard as essential to the orderly, fair, and just progress of cases, so that, where all parties having knowledge of the facts are residents of another city in the same circuit, the cause may be transferred thereto. [Ed. Note. For other cases, see Courts, Cent. Dig. §§ 1299-1305; Dec. Dig. 486.] 8. DEPOSITIONS 49-RIGHTS OF PARTIES. Plaintiff, who gave notice to take depositions in a division of the circuit to which Rev. St. 1909, § 6390, requiring the appointment of a commissioner for that purpose, did not apply, acquired no vested right to take depositions before a notary of his own selection. [Ed. Note. For other cases, see Depositions, Cent. Dig. §§ 72-80; Dec. Dig. 49.] 9. COURTS 486 TRANSFER OF CAUSE GROUNDS-GOOD CAUSE. Where plaintiff, to avoid appointment of a commissioner to take depositions, sued in a court of the circuit to which Rev. St. 1909, § 6390, requiring the commissioner, did not apply, a finding that justice and fairness required a commissioner would be good cause for transfer to another division, where the commissioner might be appointed. [Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 1299-1305; Dec. Dig. 486.] 10. PROHIBITION 5(1)-GROUNDS-DISCRE TIONARY Orders. The discretionary order transferring a cause for a good cause shown will not be disturbed, in prohibition or on appeal. [Ed. Note.-For other cases, see Prohibition, Cent. Dig. §§ 20-22; Dec. Dig. 5(1).] (Mo. appointment of a commissioner to take deposiRev. St. 1909, § 6390, providing for the who moves to take depositions to procure a commissioner, and he may proceed to take them tions in cities of 50,000, does not require one sires a commissioner, and applies to the court where the suit is pending for his appointment. before a notary, unless the adverse party de[Ed. Note. For other cases, see Depositions, Cent. Dig. §§ 72-80; Dec. Dig. 49.] 13. DEPOSITIONS 8 RIGHT TO TAKE STATUTES-CONSTRUCTION. Under Rev. St. 1909, § 6384, providing that any party to a suit pending in any court used in such suit, conditionally, the right to may obtain the deposition of any witness to be take it is not conditional, but only the right to use it. Cent. Dig. §§ 8, 10; Dec. Dig. 8.] 14. COURTS 488(1)-TRANSFER OF CAUSE- take depositions given in the first court was Dig. §§ 1316, 1317, 1319, 1320; Dec. Dig. 15. PROHIBITION 3(2) — GrouNDS OTHER It is not the purpose of the extraordinary writ of prohibition to correct errors of the trial remedies, such as appeal or writ of error, would court, for the correction of which the ordinary is that, where the judicial action complained of afford adequate relief, and the general rule was within the jurisdiction of the court, prohibition will not lie, however erroneous the action may be which the superintending tribunal is asked to prohibit. [Ed. Note. For other cases, see Prohibition, 16. PROHIBITION [Ed. Note. For other cases, see Prohibition, tions is extra jurisdictional; and subject to [Ed. Note. For other cases, see Prohibition, 11. COURTS 488(1)-TRANSFER OF CAUSE-18. PROHIBITION 13-FUNCTION OF WRITDIVISIONS OF COURT-EFFECT. Where a cause is transferred from one COMPLETED ACTS. division of a circuit court to another for good exceeding the jurisdiction, but, though the act Prohibition will lie, not only to prevent For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |