Trimble v. Stewart, Wilson & Bland , 35 Mo. App. 537 ( 1889 )

Smith, P. J. — This

case comes here by appeal from the circuit court of Randolph county.

The petition alleges that the plaintiff entered into an agreement with defendants, who were engaged in the business of . real estate brokers and in furnishing abstracts of title to real estate in the county of Randolph, whereby he employed them for the consideration of one hundred dollars to purchase for him certain real estate and to examine and prepare an abstract of the title thereto ; that pursuant to said employment they did purchase said real estate and furnish him an abstract of the title thereof which showed there were no unpaid taxes thereon which plaintiff believed and relied upon / that the said abstract was false in that there were five years’ taxes due and unpaid on said real estate which plaintiff was compelled to discharge, etc.

The petition, denuded of all the surplus and extraneous matter with which it is encumbered, is substantially as we have stated it to be.

The answer was a general denial.

The cause was tried before the court, a jury being waived. The evidence disclosed that the abstract which defendants furnished plaintiff did not show that there were any taxes or tax charges against said real estate. It wholly omitted to show that there were any taxes of any kind due or charged against said real estate. The uncontradicted evidence showed that there were at the time defendants furnished their said abstract several years’ taxes charged against said real estate which were unpaid.

The plaintiff himself, however, testified that “I relied on Wilson's, a defendant's, statement, that the title was clear and that all taxes were paid. 1 believed his statement to be true, I did not examine the abstracts or have a lawyer to examine them." At the conclusion of the plaintiff’s evidence the defendants interposed a demurrer thereto, which was overruled.

The finding of the court was for the plaintiff.

After an unsuccessful motion to set the same aside, judgment was rendered thereon and from which defendants appealed.

I. The question which we have to decide is whether the circuit court erred in its ruling on the demurrer to the evidence. It is quite manifest that there is a fatal lack of correspondence between the allegation of the petition and the proof. The petition charges • that defendants furnished plaintiff a false abstract of title upon which he relied and in consequence of which he suffered damages.

The plaintiff’s own testimony was that he did not examine said abstract himself or have a lawyer to do it for him, but that he relied entirely upon the statement of defendant Wilson that the title to said real property was clear and that all taxes had been paid. The facts of this case bring it within the principle announced in that class of cases of which Greely v. Railroad, 93 Mo. 447, is among the most recent. The plaintiff pleaded one cause of action and recovered upon another. This is not permissible. Murphy v. Bedford, 18 Mo. App. 279; Clements v. Yates, 76 Mo. 623; Cabanne v. Skinker, 56 Mo. 357; Field v. Railroad, 76 Mo. 614.

There was no allegation in the petition under which the plaintiff ’ s evidence was admissible.

The defendants’ demurrer was improperly overruled. Judgment reversed and cause remanded with leave to plaintiff to amend his petition if he chooses to do so.

All concur.