Opinion
November 20, 1934.
1. APPEAL AND ERROR: Assignment of Error: Motion for a New Trial. Where the trial court granted defendant a new trial on the ground that the evidence offered by plaintiff failed to sustain the issues presented, that did not mean that the new trial was granted because the verdict was against the weight of evidence especially where the motion assigned the latter ground in another point.
2. FRAUD: Damages. In an action for damages to plaintiff caused by the alleged fraud of defendants in inducing her to convey her real estate in exchange for worthless stock, the evidence was sufficient to sustain a verdict of the jury on the theory that defendant committed fraud.
3. FRAUD: Conspiracy. In an action by plaintiff for damages caused by fraud in inducing her to convey her property, where her petition charged a conspiracy on the part of defendants, although the plaintiff failed to prove conspiracy, the trial court did not err in submitting the case on the issue of fraud.
A number of persons charged with having perpetrated a fraud, on proof of the fraud, would be liable even though the conspiracy charged was not proven.
Where plaintiff could have sued the appealing defendant alone for perpetrating the fraud and a verdict in her favor would have been sustained by the evidence, the Supreme Court may treat the charge of conspiracy in such case as surplusage.
4. FRAUD: Instructions. In an action by plaintiff for fraud in causing her to convey her property for worthless stock, an instruction authorizing a verdict for plaintiff correctly required a finding that the representations of defendant induced plaintiff to part with her property and that defendant was actuated by fraudulent intent, and such instruction was not open to the objection that the instruction submitted immaterial representations and issues not submitted in the pleadings and an erroneous measure of damages.
While the instruction did not in so many words require the jury to find that defendant was actuated by fraudulent intent, it was sufficient in that it did require the jury to find the facts which were equivalent to such finding.
5. FRAUD: Measure of Damages. In an action for fraud by which plaintiff was induced to exchange her real estate for stock and notes in a corporation, an instruction on the measure of damages authorizing the jury to find for plaintiff in a sum equal to the value of plaintiff's property, less the value of the stock and notes she received, was not prejudicially erroneous.
While plaintiff in such case was entitled to damages measured by the difference between the actual value of the stock and notes received and its value as represented, she could forego the benefit of her bargain and collect only the difference between the price paid for the property and the value of the property received.
6. ACTIONS: Statute of Frauds. In an action for damages caused to plaintiff on being induced to convey her real estate for an inadequate consideration, defendant not having pleaded the Statute of Frauds in the trial court nor in any manner raised the question, he waived his right to present it in the Supreme Court.
Appeal from Circuit Court of City of St. Louis. — Hon. Frank Landwehr, Judge.
REVERSED AND REMANDED ( with directions).
Stout Spencer and George F. Wise for appellant.
(1) The evidence introduced by plaintiff sustained the cause of action pleaded in her petition. (a) Although a conspiracy to defraud was alleged in the petition, the allegations of conspiracy may be treated as surplusage, and the cause was established against defendant Berberich by proof of fraud on his part. 27 C.J. 43; 12 C.J. 584; Gable v. Am. Ry. Express Co., 115 S.E. 903; Humphrey v. Terry, 89 So. 608, 206 Ala. 249; Howard v. McCarson, 110 So. 296, 215 Ala. 251; Holt v. Williams, 240 S.W. 864, 210 Mo. App. 470; Brackett v. Griswold, 112 N.Y. 454, 20 N.E. 376; Shelberg v. Jones, 151 N.W. 1066, 170 Iowa 19; Foster v. O'Farrell, 225 P. 217, 75 Colo. 170; Dickson v. Young, 210 N.W. 452, 202 Iowa 378; Franklin v. Erickson, 146 A. 437, 128 Me. 181; Dickson v. Reno, 187 P. 308, 43 Nev. 413; Aronson v. Ricker, 185 Mo. App. 533, 172 S.W. 641; Hunt Simonds, 19 Mo. 583; Darrow v. Briggs, 261 Mo. 276, 169 S.W. 118; Remmers v. Remmers, 217 Mo. 555, 117 S.W. 1117. (b) Even if the case comes within the Statute of Frauds (which is not conceded), the statute was waived by defendant and he cannot now rely upon it, because he did not raise the point in his pleading or at any time during the trial. Smith v. Hainline, 253 S.W. 1049; Ott v. Stone, 29 S.W.2d 726; State v. Trimble, 28 S.W.2d 75; Large v. Frick Co., 256 S.W. 90, 215 Mo. App. 232; Schmidt v. Rozier, 121 Mo. App. 306, 98 S.W. 791; Downing v. Anders, 202 S.W. 297; Hyde v. Henman, 256 S.W. 1091. (c) Plaintiff's evidence establishes all the elements of a case of fraud, namely, that the representations were made by defendant; that they were false; that defendant knew they were false, and that plaintiff relied upon them and was damaged thereby. Gittings v. Jeffords, 239 S.W. 88, 292 Mo. 678; Remmers v. Remmers, 217 Mo. 557, 117 S.W. 1117; State v. Allen, 276 S.W. 879, 310 Mo. 378; Stoltzfus v. Howey, 54 S.W.2d 505; Ash v. Wiley, 46 S.W.2d 899. (d) Defendant's intent to defraud need not be directly proved, but is inferred from the fact that he made representations which he knew were false. Dulaney v. Rogers, 64 Mo. 201; 12 R.C.L. 327; Messerli v. Bantrup, 216 S.W. 825; Cowley v. Smyth, 46 N.J.L. 380; Benner v. Hooper, 296 P. 660; Case v. Ayers, 65 Ill. 142; Boddy v. Henry, 101 N.W. 447, 126 Iowa 31. (2) The instructions given at the request of the plaintiff correctly declared the law. (a) Plaintiff's Instruction 1 required the jury to find all the necessary elements of fraud in order to return a verdict for plaintiff. Dulaney v. Rogers, 64 Mo. 201. (b) Plaintiff's Instruction 2 correctly said that the fraudulent intent might be inferred. Dulaney v. Rogers, 64 Mo. 201; 12 R.C.L. 327; Messerli v. Bantrup, 216 S.W. 825; Cowley v. Smyth, 46 N.J.L. 380; Benner v. Hooper, 296 P. 660; Case v. Ayers, 65 Ill. 142; Boddy v. Henry, 101 N.W. 447, 126 Iowa 31.
Grimm, Mueller Roberts for respondent.
(1) The trial court committed no error in granting respondent a new trial on specification 8 of respondent's supplemental motion for new trial. (a) Appellant's evidence failed to sustain the issues presented by pleadings, i.e., appellant failed to establish her case by preponderance or weight of the evidence. Appellate courts will not disturb the granting of a new trial on the ground that the verdict is against the weight of the evidence. Cullison v. Wells, 297 S.W. 370; Fitzjohn v. Transit Co., 183 Mo. 78; Broyles v. Morris, 245 S.W. 341. (b) Appellant's evidence failed to establish her alleged cause of action as pleaded in petition. The evidence of appellant constitutes a variance and departure from the petition. Appellant cannot abandon cause of action based solely on conspiracy and proceed against respondent alone on fraud. Roger v. First Natl. Bank, 279 S.W. 1053; Darrow v. Briggs, 261 Mo. 244; Marrow v. Marrow, 61 Pa. Sup. Ct. 208; Emmerson v. Hutchinson, 63 Ill. App. 203; Aronson v. Rieke, 185 Mo. App. 534; Holborn v. Naughton, 60 Mo. App. 100; Holt v. Williams, 240 S.W. 864. The representations alleged to have been made by respondent, having to do with assurances concerning the character, conduct, credit, ability or dealings of another person, are not actionable if not in writing. Sec. 2970, R.S. 1929; Knight v. Rawlings, 205 Mo. 412; Cook v. Churchman, 104 Ind. 146; Sedgwick v. Natl. Bank, 243 S.W. 893; Williams v. Ravanna Bank, 289 S.W. 34; Weil v. Schwartz, 21 Mo. App. 372. Compliance with Section 2970, Revised Statutes 1929, requiring the representations in question to be in writing, is a necessary element of appellant's cause of action. Williams v. Ravanna Bank, 289 S.W. 34; Sedgwick v. Natl. Bank, 243 S.W. 893. The statute need not be pleaded to be available, but may be included under general demurrer to evidence, or may be raised on motion for new trial, or on appeal. Weil v. Schwartz, 21 Mo. App. 372; Williams v. Ravanna Bank, 289 S.W. 34; Sedgwick v. Natl. Bank, 243 S.W. 893; Smith v. Hainline, 253 S.W. 1049; Downing v. Anders, 202 S.W. 297. (c) Appellant's evidence failed to establish necessary elements of fraud. Evidence fails to show that appellant relied upon alleged representations of respondent and fails to show that she was induced thereby to enter in her transaction with Thompson. Anderson v. McPike, 86 Mo. 293. Alleged representations were not shown to have been false when made. Evidence does not show that respondent made alleged representations for the purpose of inducing appellant to buy stock from George T. Thompson. 26 C.J. 1115, 1116, 1117; Brueckle v. Pechan, 21 S.W.2d 903; Gains v. Massey, 190 Mo. App. 199. (2) The trial court committed no error in granting a new trial on specification 4 of the respondent's supplemental motion for new trial. (a) The instruction given at the instance of appellant was erroneous. (b) The instruction failed to require the jury to find that the representations of defendant induced plaintiff to part with her property in exchange for her stock. Wann v. Scullin, 210 Mo. 429; Birch Tree State Bank v. Dowler, 167 Mo. App. 379. (c) The instruction fails to require the jury to find that defendant Berberich was actuated by fraudulent intent. Woods v. Letton, 111 Mo. App. 51; Stufflebean v. Peaveler, 274 S.W. 929. (d) The instruction submitted immaterial and nonfraudulent representations. Stufflebean v. Peaveler, 274 S.W. 929; Press v. Hair, 133 Ill. App. 528. (e) The instruction submitted issues not presented by pleadings. Morton Electric Co. v. Schramm, 277 S.W. 368; St. John v. Berry, 63 Kan. 775; Williams v. Hall, 230 S.W. 126. (f) The instruction submits an erroneous measure of damages. Morrow v. Franklin, 233 S.W. 224; Thompson v. Lyons, 220 S.W. 942; Adams v. Barber, 157 Mo. App. 395; Gash v. Mansfield, 28 S.W.2d 127; Busse v. White, 259 S.W. 458, 302 Mo. 672; Palmer v. Moyers, 298 S.W. 101; Addis v. Swofford, 180 S.W. 548; Zeitinger v. Steinberg, 277 S.W. 956; Brayton v. Gunby, 267 S.W. 450; Brigham v. Judy Co., 186 S.W. 15; Boyd v. Wahl, 175 Mo. App. 181; Kendrick v. Ryus, 225 Mo. 150; Wolfersberger v. Miller, 39 S.W.2d 765; Finke v. Boyer, 56 S.W.2d 372. (g) The instruction was so long and involved as to be confusing to the jury. Knapp v. Hanley, 153 Mo. App. 174; Williams v. Ransom, 234 Mo. 66; Stid v. Railroad, 236 Mo. 398. (h) Defects or omissions in instructions purporting to cover the entire case cannot be corrected or supplied by other instructions. Sec. 111, Ferris Rosskopf, Instructions to Juries; Traylor v. White, 185 Mo. App. 325.
Appellant in her petition charged that respondent and George T. Thompson and Claude C. Finley, on June 3, 1929, through fraud, secured from her certain real estate of the value of $16,500. The cause was tried before a jury and appellant was given a verdict and judgment of $14,500 and interest in the sum of $2,003.48. No service was obtained upon Thompson and the case as to him was dismissed.
The trial court sustained respondent's motion for a new trial and appellant appealed. The new trial was granted upon the fourth and eighth assignments of error in the motion, which read as follows:
"Fourth. The court erred in giving the instructions offered by the plaintiff.
"Eighth. The evidence offered by plaintiff failed to sustain the issues presented by the pleadings and failed to sustain the cause of action attempted to be pleaded in plaintiff's petition."
The eighth assignment presents two questions for our review. These, however, are somewhat commingled. They are: First, did appellant adduce sufficient evidence to sustain the issues presented, one of the issues being fraud; second, even though there was sufficient evidence of fraud did it sustain the cause of action as pleaded? Respondent contends that plaintiff wholly failed to prove any conspiracy as pleaded in the petition, therefore, plaintiff was not entitled to a verdict.
Respondent argues that the eighth assignment also covers the point that the verdict was against the weight of the evidence and, therefore, the action of the trial court in granting a new trial should not be reviewed. This contention is untenable. There is nothing in the assignment, even if liberally construed, that presents that point. Furthermore, that question was specifically raised in the first assignment of the motion as follows:
"First. The verdict of the jury is against the evidence presented at the trial, and is against the weight of the evidence and is against the law and the evidence."
This latter assignment was not mentioned in the court's order granting a new trial. The point is, therefore, ruled against respondent.
The petition charged that the defendants in 1928, organized the George T. Thompson Hotel Corporation, which corporation acquired the Marquette Hotel in St. Louis, Missouri; that George T. Thompson was its president and treasurer; that in April, 1929, Berberich purchased $15,000 worth of capital stock of the corporation and in May, 1929, advanced money to it. The petition then alleged that the defendants conspired and planned whereby defendants might be reimbursed for the money advanced to and invested in the corporation; that in furtherance of this conspiracy they falsely and fraudulently misrepresented material facts to plaintiff to induce her to purchase capital stock in the corporation. The petition recited in detail the fraudulent representations made as to the financial condition of the corporation, and further the representation that this corporation owned all of the stock of the Interstate Hotel Company, which corporation owned leases on hotels at St. Charles and Cape Girardeau, Missouri, and elsewhere. The petition then charged that the George T. Thompson Hotel Corporation was insolvent; that it did not own any of the stock of the Interstate Hotel Corporation, as had been represented, and did not have an interest in any hotel except the Marquette Hotel in St. Louis, Missouri; that the defendants owned a controlling interest in the Interstate Hotel Company. The petition then stated that appellant relied upon the representations so made and believing them to be true was induced to transfer title to her four-family flat, at 4044 Russell Boulevard, of the value of $16,500, to said corporation in exchange for forty shares of common and seventy-five shares of preferred stock of the Thompson corporation, $1,000 in cash and four $1,000 notes. The petition also charged that appellant was to receive treasury stock, but instead and unbeknown to her she received stock that was owned by defendant Berberich; that title to the property was not taken in the Thompson Hotel Corporation, but in the name of George T. Thompson and was later transferred to Berberich in exchange for stock of the corporation. The petition then charged that through various maneuvers and transactions respondent Berberich became practically the sole owner of the Marquette Hotel. More details of these transactions will be stated in the course of the opinion.
The evidence in the record discloses that many of the facts pleaded in the petition are not in dispute. We will state what we assume to be undisputed.
George T. Thompson Hotel Corporation owned the Marquette Hotel in St. Louis, Missouri, subject to a first mortgage and back taxes aggregating about $1,000,000. This corporation had no interest direct or indirect in any other hotel. It did not own any of the stock of the Interstate Hotel Corporation, which corporation owned the hotels at St. Charles and Cape Girardeau and had interests elsewhere. On the entrance door of the Marquette Hotel in St. Louis appeared the following: "Interstate Hotels, George T. Thompson Hotel Corporation." The Thompson Hotel Company was insolvent in May, 1929. During this month respondent Berberich, because of financial difficulties of the hotel company, indorsed a note for the corporation in the sum of $8,000, about one-half of which he was later forced to pay. In April, 1929, Berberich bought $15,000 worth of stock in the corporation. This stock was purchased to help Thompson and Finley, who represented to Berberich that they needed money to operate the hotel. Berberich later in the year, during July or August, advanced $12,000 in cash to the corporation. In December, 1929, Berberich bought a note of $180,000, secured by a second deed of trust on the hotel property, executed by the Thompson Hotel Corporation, for which he paid $23,500. This deed of trust was subject to the prior deed of trust and taxes aggregating $1,000,000. The trustee, under the first deed of trust, had at this time taken charge of the hotel and had commenced foreclosure proceedings.
Berberich in December, 1929, formed a corporation for the purpose of going into the hotel business. At the foreclosure sale in January, 1930, Eugene Cronk purchased the hotel and a few weeks later Cronk in turn sold the hotel to the corporation formed by Berberich, the consideration being that the Berberich Hotel Corporation assume the first mortgage and the taxes.
In September, 1929, Berberich became the owner of the property formerly owned by appellant. Respondent's testimony with reference to this transaction reads as follows:
"Q. When did you become the owner of that property? A. Some time in October, 1929.
"Q. And from whom did you acquire the property at 4042 and 4044 Russell? A. George T. Thompson and wife.
"Q. What was the nature of that deal whereby you acquired that property? A. I was after Mr. Thompson to take up some of these notes, to keep some of his promises of refunding me some of the money I had loaned him; he claimed to have had a flat out there he had some equity in; he said, `It is mortgaged, but there is still some equity in it,' and he said, `I will turn that over to you,' or give his stock, and I didn't think so much of the stock — I didn't think much of the stock — so I give him $6000 worth of stock back. The flat had a $6000 first mortgage and $2700, I think, second mortgage on it."
In September, 1929, appellant purchased $2700 worth of stock in the Thompson Hotel Corporation. Later in April and May a stock salesman frequently solicited appellant to purchase additional stock. These solicitations resulted in appellant transferring, on June 3, 1929, her property on Russell Boulevard for stock in the corporation. The value was placed at $16,500. The income from this property was about $1800 per year. Appellant received in return for her property preferred stock valued at $7,500, common stock valued at $4,000, $1,000 in cash and four notes of the Thompson Corporation of $1,000 each. Only one of these notes was paid.
Thompson and Berberich were jointly interested in the Interstate Hotel Corporation. In the spring and summer of 1929, they made trips together to St. Charles, Cape Girardeau, Jackson, West Virginia and other places.
Respondent Berberich was listed as being the vice president of the Thompson Corporation, by Dunn and Bradstreet and the Better Business Bureau of the City of St. Louis. The record does not disclose that he was ever elected or that he ever served in that capacity. Berberich testified that when he learned he had been so listed he immediately gave notice to the concerns that they were in error.
As to the main disputed facts the record discloses appellant testified that during the time the stock salesman was endeavoring to persuade her to purchase additional stock in the Thompson Corporation she sent her daughter to respondent Berberich for the purpose of ascertaining if he was the vice president of the corporation and to ascertain its financial standing. The daughter of appellant testified that pursuant to the instructions of her mother she went to respondent's office and made the inquiry. Her testimony reads in part as follows:
"Q. All right. Now, will you tell the jury, please, of your trip down to see Mr. Berberich, and what you said to him, and what he said to you? A. Well, I went in some time just around noon at his place of business at Thirteenth and Shenandoah and he happened to be in, and he said to me the company owned the Marquette Hotel down in Cape Girardeau, and the St. Charles Hotel out in St. Charles, and the Marquette in St. Louis; was in good financial standing; he had his own money in it, and he was an officer and director, and it was a good, safe investment for my mother to put her money in, and I was glad to hear it and I went and told my mother, and we went ahead with the deal. . . .
"The Witness: He said it owned the Marquette down in Cape Girardeau; the St. Charles out in St. Charles; and the Marquette in St. Louis, Missouri, and it had other leases, one in Springfield, Missouri; Hermann, Missouri; and Belleville, and one down in Jackson, West Virginia.
"Q. One in West Virginia? A. Yes.
"Q. Now, let's get this clear: He told you that the George T. Thompson Hotel Corporation owned these other things; is that correct? A. Yes, when you bought in the Marquette in St. Louis you bought into the Inter-State with the others. You couldn't buy Inter-State. It was Inter-State on the door, and George T. Thompson, president, on the door."
On cross-examination she testified as follows:
"Q. After Mr. Berberich told you that did you make any investigation to determine whether or not Mr. Berberich was telling you the truth? A. No, I took his word for it.
"Q. What was the purpose of you calling on Mr. Berberich? A. To find out what the salesman had told us, if that was true; and what Mr. Wolken had said, if that were true.
"Q. In other words, you didn't want to take the word of Mr. Wolken, and you didn't want to take the word of the salesman; is that correct? A. No, that is right.
"Q. But you say that after Mr. Berberich made these statements you believed them? A. Sure."
Respondent emphatically denied having made any representations to appellant or her daughter with reference to the Thompson Hotel Corporation or any other company. He testified that he did not know appellant or her daughter and did not see them until long after appellant had bought the stock in the Thompson company; that he had no conversation whatever with either appellant or her daughter until after he became the owner of the property on Russell Boulevard; that he did not know of her purchasing the stock and that he, respondent, had no connection whatever with that transaction nor did he conspire with anyone to defraud appellant. A bookkeeper, employed by respondent at the Marquette Hotel, gave evidence tending to impeach the testimony of appellant and her daughter. This testimony was to the effect that appellant and her daughter did not know respondent until after he became the owner of the property on Russell Boulevard.
Viewing the evidence from the standpoint of respondent all of his transactions with the Thompson corporation are consistent with innocence. We may add that we are favorably impressed with his theory of the case. However, it is not our function to pass upon the weight of the evidence. That was the province of the jury that tried the case.
Many of the facts and circumstances also coincide with appellant's theory. Berberich was interested in the Thompson corporation. He was closely associated with Thompson. Berberich and Thompson controlled the Interstate Hotels. The name of Interstate Hotels appeared upon the door of the Marquette Hotel when in fact the Interstate Hotel Corporation had no interest whatever therein. The property obtained from appellant was valued at about $16,000. While the title was in Thompson's name he placed two deeds of trust on the property, through which he obtained about $8,000. The property was then transferred to Berberich, subject to the liens, in exchange for stock of the Thompson corporation, which stock was known to be worthless at the time. The stock appellant received was also known to be worthless. At the very time appellant was being solicited to purchase stock the corporation, through its officers, was appealing and receiving aid from Berberich. Berberich testified that Thompson transferred the Russell Boulevard property to him to repay part of the money advanced to the corporation. Berberich was interested in the Thompson corporation. He was benefited financially by the transaction with appellant. If the testimony of appellant and her daughter be taken as true then Berberich knowingly misrepresented the financial condition of the Thompson corporation and these representations were relied upon by appellant and induced her to transfer her Russell Boulevard property in exchange for the stock of the Thompson corporation. The evidence, therefore, justified a finding that Berberich was guilty of fraud. The instructions of the court submitted the case to the jury on the theory of a fraud perpetrated by Berberich. The question of conspiracy was not submitted to the jury. We believe the evidence was ample to support the verdict of the jury on the hypothesis that respondent committed a fraud.
Respondent argues that appellant in her petition attempted to state a case of conspiracy and that conspiracy was the foundation of the cause of action; that having failed to prove the conspiracy appellant failed to make a case for the jury; that, therefore, the case was erroneously submitted on the question of fraud. There are cases to be found wherein it is essential to prove a conspiracy in order to afford any remedy in the case. [Hughes v. Kansas City Motion Picture Mach. Operators, Local Number 170, 282 Mo. 304, 221 S.W. 95, l.c. 99 (1); State ex rel. v. Assurance Co. of America, 251 Mo. 278, 158 S.W. 640; Lohse Patent Door Co. v. Fuelle, 215 Mo. 421, 114 S.W. 997.]
However, the case before us is not such a case. Respondent contends that appellant wholly failed to prove the conspiracy as pleaded. The rulings on the admission of evidence and the instructions indicate that the trial court was of that opinion. We are writing this case on the theory that the evidence did not justify a finding of conspiracy. We are not saying, however, that as a matter of law a jury would not be authorized to so find. But assuming that a conspiracy was not proven, did the trial court err in submitting the case to the jury on the issue of fraud? We think not. The gist and essence of appellant's cause of action was fraud. A number of persons were charged with having perpetrated a fraud upon appellant and with having entered into a conspiracy to accomplish such fraud. If the evidence in such a case showed that any one or more of such persons were guilty of perpetrating the fraud, then such person or persons would be liable even though the conspiracy was not proven. The rule of decision is well stated in 12 Corpus Juris, 584, section 104.
"As a general rule averment and proof that the acts were done in pursuance of a conspiracy do not change the nature of the action or add anything to its legal force and effect. If a plaintiff fails in the proof of a conspiracy or concerted design, he may yet recover damages against one or more of defendants shown to be guilty of the tort without such agreement. The charge of conspiracy where unsupported by evidence will be considered mere surplusage not necessary to be proved to support the action."
See cases there cited and also Diver v. Miller (Del.), 148 A. 291; Franklin v. Erickson (Me.), 146 A. 437; Dickson v. Young (Iowa), 210 N.W. 452. This is the rule in Missouri. [See Hunt v. Simonds, 19 Mo. 583.] This Missouri case has been overruled on another point. [State ex rel. v. Assurance Co. of America, 251 Mo. 278, 158 S.W. 640, l.c. 645 (1).] The case, however, has been cited with approval on the question now under consideration. In the course of the opinion the court said: "`In an action on the case in the nature of a conspiracy, the gist of the action is not the conspiracy (as it is in an indictment, and was in the old writ of conspiracy), but the damage done to plaintiff.' The only use in charging the conspiracy is, to make the defendants responsible for the acts of each other, done in pursuance of the common design." This was approved in Darrow v. Briggs, 261 Mo. 244, 169 S.W. 118, l.c. 125 (4); Epps v. Duckett, 284 Mo. 132, 223 S.W. 572, l.c. 575 (4). The Hughes case, supra, 282 Mo. 304, 221 S.W. 95, l.c. 103, makes reference to Hunt v. Simonds and Darrow v. Briggs, supra, and criticizes the holding of nonliability in those cases; this, upon a principle of law with which we are not now concerned.
In the case at bar appellant could have sued respondent alone for perpetrating a fraud and a verdict in her favor would have been sustained by the evidence as we find it in the record. We may treat the charge of conspiracy as surplusage. [27 C.J. 43, sec. 167 and cases there cited.] The trial court, therefore, did not err in submitting the case to a jury on the issue of fraud. There was ample evidence to support the verdict. It was error for the trial court to sustain the motion for a new trial on the eighth assignment in the motion.
This leaves the question of the correctness of the instructions. Respondent in his brief asserts that the principal instruction given for appellant failed to require the jury to find, first, that the representations of the defendant induced plaintiff to part with her property in exchange for the stock; second, that Berberich was actuated by a fraudulent intent; third, that the instruction submitted immaterial and nonfraudulent representations; fourth, that the instructions submitted issues not submitted by the pleadings; fifth, that the instructions submitted an erroneous measure of damages.
We do not find the instruction subject to the criticisms made. It required the jury to find, as a prerequisite to returning a verdict for appellant, that appellant's daughter informed respondent that her mother had sent her to respondent for the purpose of ascertaining the true facts with reference to the financial condition of the corporation for the reason that appellant was considering buying stock; that respondent made certain representations; that these representations were false and at the time known to be false by respondent, or that respondent represented that he knew such facts to be so when in fact they were not so; that appellant relied upon such representations not knowing them to be false; that appellant exchanged her property for stock of the corporation and that respondent profited by or intended to profit by the transaction. These requirements fully covered the questions of reliance upon the representations made and whether appellant parted with her property because of these representations. While the instruction did not in so many words require the jury to find respondent was actuated by a fraudulent intent, it did require the jury to find facts which were equivalent to such a finding. [27 C.J. 79, 80, secs. 220 to 223, inclusive; Stufflebean v. Peaveler, 274 S.W. 926, l.c. 929 (2, 3); Dulaney v. Rogers, 64 Mo. 201.] In addition to this the trial court gave, at respondent's request, a number of instructions specifically covering these points.
The clause in the instruction "or that the defendant Berberich represented that he knew such facts to be so when, in fact, they were not so" may be justly criticized. The instruction should also have required a finding that respondent represented he knew such facts when in fact he had no knowledge thereof. A person may honestly make representations, not true, without any fraudulent intent. In the case before us, however, the respondent's contention was not that the representations if made were honestly made, but that no representations of any kind were made, by him, to appellant or her daughter. Under respondent's own evidence, if the representations were made at all they were known by respondent to have been false at the time. The defect in the instruction was, therefore, harmless error.
There is no merit in respondent's contention that the instruction submitted immaterial and nonfraudulent representations or that it submitted issues not presented by the pleadings. The instruction correctly enumerated the specific representations pleaded in the petition. This practice was approved in Osborne v. Simmons, 23 S.W.2d 1102, l.c. 1104 (3).
On the measure of damages the jury were instructed that if they found for plaintiff it should be in a sum equal to the value of plaintiff's property at the time of exchange, less the real value of the stock and notes of the George T. Thompson Hotel Corporation at the time of their purchase, less $2,000 actually paid. Respondent contends the true measure of damages to be the difference between the actual value of the stock and such value if it had been as represented. In Missouri this measure of damages, as contended for by respondent, has been held to be correct. [Busse v. White, 259 S.W. 458, 302 Mo. 672; Gash v. Mansfield, 28 S.W.2d 127, l.c. 132.]
This court, however, has said that while a plaintiff in a fraud case is entitled to damages as measured by the rule contended for by respondent, a defendant cannot complain if a plaintiff chooses to forego the benefit of his bargain and to collect only the difference between the price paid for the property and the value of the property received. We have so recently reviewed this question that we deem it unnecessary to reconsider it at length. In Finke v. Boyer, 331 Mo. 1242, 56 S.W.2d 372, l.c. 376, 377 (9, 10), the subject was given full consideration and in the course of the opinion we said:
"In the Kendrick case, the trial court gave an instruction on the measure of damages according to the `benefits of the bargain' rule and the defendant complained, but this court held that plaintiffs were entitled to those benefits. In the instant case, the instruction seems to be more in accord with the Federal rule than with the Missouri rule. But if that be error it is not prejudicial to appellant, because the Federal rule favors defendants while the Missouri rule tends to enhance the damages of plaintiffs." [See, also, Reynolds v. Davis, 303 Mo. 418, 260 S.W. 994, l.c. 997; Kendrick v. Ryus, 225 Mo. 150, 123 S.W. 937, l.c. 939, 135 Am. St. Rep. 585.]
Respondent also relies upon the Statute of Frauds. Section 2970, Revised Statutes 1929. This question was not presented to the trial court in any form. It was not pleaded. No objection was made to the admission of evidence and it was not mentioned in the instructions or the demurrer to the evidence. Respondent has, therefore, waived the statute if indeed it had any application to this case. In 27 Corpus Juris, page 368, section 446, we read: "It is well settled that the party seeking to avail himself of the benefits of the statute must distinctly call it to the attention of the court, in some manner, by his pleadings or otherwise, or it will be considered as waived." Many cases are cited in support of the text from various states, including Missouri. [See, also, McKee v. Rudd, 222 Mo. 344, 121 S.W. 312, l.c. 319, 320 (4); Smith v. Hainline (Mo.), 253 S.W. 1049, l.c. 1052 (3); Condit v. Maxwell, 142 Mo. 266, l.c. 275, 44 S.W. 467, l.c. 469 (1).] In Smith v. Hainline, supra, this court, after reviewing the question, concluded as follows:
"From all of which it follows that the defense of the statute being an affirmative one it is, under the circumstances at bar, waived unless distinctly asserted as stated, which was not done (Heath v. Beck (Mo. App.), 231 S.W. 657), and that it is too late to raise it in the motion for a new trial (Ewart v. Young, 119 Mo. App. 483, 96 S.W. 420; Young v. Ledford, 99 Mo. App. 565, 74 S.W. 443)." (Italics ours.)
The trial court gave a number of instructions, requested by respondent, which fully instructed the jury as to every defense presented by respondent and on respondent's theory of the case. The case was fairly tried and submitted to the jury by proper instructions. It follows that the order of the trial court, granting a new trial, must be set aside and the cause remanded with directions to reinstate the verdict of the jury and enter a judgment for appellant. It is so ordered.
The foregoing opinion by WESTHUES, C., in Division Two, is adopted as the opinion of the Court en Banc. All concur.