Miller v. Rankin , 136 Mo. App. 426 ( 1909 )

ELLISON, J.

This is an action for fraud and deceit in the sale of hogs by defendant to plaintiff which it is charged were infected with a fatal disease known as hog cholera. The verdict was for the defendant in the trial court. A motion for new trial was sustained and defendant has appealed from that order.

The motion was sustained on the ground stated by the court that error had been committed in the omission of the words “or had good reason to believe,” at the place where they appear in brackets in the following instructions given at the request of defendant:

“2. Unless the jury believes from the evidence that, at the time of the sale of the hogs to plaintiff, they were diseased with cholera or some other disease and that defendant knew (or had good reason to believe) that they were diseased, and knowing such fact, falsely represented to the plaintiff that they were sound and healthy or free from disease, with a view to induce the plaintiff to buy such hogs, and unless the jury, further believe that the plaintiff relied upon such representations, believing them to be true, and so relying and believing, and not relying upon his own judgment, bought said hogs, and suffered loss on account of such disease, then in such case plaintiff cannot recover.

“3. Before the plaintiff can recover on account of fraud and deceit charged as to soundness of hogs as charged in his petition, he must show that the hogs purchased from defendant were, at the time of the purchase, afflicted with a disease known as hog cholera or some other infectious or contagious or other disease, that defendant had knowledge of such fact (or had good reason to believe it), that the defendant, intending to deceive and defraud the plaintiff, falsely represented to plaintiff that such hogs were free from hog cholera or other infectious or contagious or other disease, that plaintiff, not knowing that such hogs were diseased, relied upon such false representations, believing them to be true, and so relying upon them, purchased said hogs, and that he afterwards suffered damages from death of such hogs and other hogs because of such disease.”

Plaintiff asked and obtained an instruction which contained those words, substantially, and the question is, did the court err in concluding that they should have been inserted in defendant’s instructions which we have set out. The decisions on the subject of whether one shall not only have reason to believe, but shall actually know his representations are false, appear on the surface to be out of harmony. This is mostly in appearance and not reality.

If one makes a representation when he has no knowledge whether it is true or false, he affirms its truth and is guilty of fraud if it be false. This is well-understood law. If he malíes a representation and believes it to be false he is really guiltier in degree than if he merely knew nothing about it. So if he makes a representation as a fact when he has good reason to believe it is false, he cannot know it to be true and in that instance, also, he is guilty of a fraud in asserting it was a fact. It is true that there might be a condition where a party would make a false representation which he believed to be true and yet good reasons existed, though unknown to him, why he should not have believed it. In such case he would not be guilty of fraud in this sort of action. But if when he makes the representation there, is then in his mind good reason to believe it is false, he is undoubtedly guilty of a fraud. The latter condition or hypothesis is what the court rightly concluded should be in the instructions by inserting the words if “he had good reason to believe.” In such instance it is proper speech to say that if one knew, or had good reason to believe his assertion to be false, he is liable to an action. And so we find that mode of stating the grounds for an action is used in many of the decisions of our Supreme Court. [Dulaney v. Rogers, 64 Mo. 201, 203; Caldwell v. Henry, 76 Mo. 254; Hamlin v. Abell, 120 Mo. 188, 200; Brokerage Co. v. Gates, 190 Mo. 391, 406; Serrano v. Commission Co., 117 Mo. App. 185, 200.] It is stated in Cooley on Torts (side page 500), (italics ours), that “there is no doubt that an action on the case will lie, founded on representations made by the defendant, whenever it can be made to appear that he believed or had reason to believe the representations were false, and that the plaintiff relied upon them, to his injury.”

The cases cited by appellant are not opposed to what we ha've written. The point in controversy here was not involved or referred to. It was asserted in argument that Halliwell v. Stewart, 103 Mo. App. 182, announced that “had good reason to believe” the representation was false, would not support the action. That was not the decision. The close of the opinion was intended merely as a criticism on an instruction as applied to the particular evidence in that case. The evidence there showed belief, if anything, and there was nothing upon which to .base the idea of reason to believe.

The order or judgment granting the new trial will be affirmed.

All concur.