Leimkuehlerv.Wessendorf

Supreme Court of Missouri, Division OneJun 7, 1929
323 Mo. 64 (Mo. 1929)
323 Mo. 6418 S.W.2d 445

June 7, 1929.

1. FRAUD AND DECEIT: Exchange of Properties: Concealment: Joint Fraudfeasors. Where the evidence shows that all five defendants acted in concert; that all assumed to act for plaintiffs in making an exchange of their farm for other properties; that all studiously concealed from plaintiffs facts which plaintiffs were entitled to know at their hands; that all participated in the fraudulent concealment and shared equally in the fruits of the fraud, all, whether or not all were employed as agents to make the exchange, are liable as joint fraudfeasors for the value of the properties thus by them fraudulently retained and appropriated.

2. ____: ____: ____: ____: Retention of Property by Agents: Participation: Instruction: Assuming Fact. An instruction which permits a finding against no defendant who did not wrongfully, intentionally and knowingly participate in the fraud of concealing and withholding and retaining property put in the exchange by its owners for plaintiffs' farm, but declares that each and every defendant "so participating in the retention and concealment of said property, if any, is liable to plaintiffs, in damage, in such sum as you find and believe from the evidence was the reasonable market value of said property, if any, on the day said exchange was made, so withheld and retained from plaintiffs," does not assume fraud on the part of the defendants, or any of them, but properly and accurately declares the law of fraud and deceit.

3. ____: Instruction: Measure of Damages: Agents: Participation. An instruction which does not undertake to authorize a recovery on the ground that all five defendants were plaintiffs' agents, but on the ground that all intentionally practiced fraud and deceit upon plaintiffs, whether they participated in the exchange of properties on behalf of plaintiffs, or merely assisted the duly authorized agents of plaintiffs in making the exchange, does not state a wrong measure of damages.

4. ____: ____: Agents: Liability of Participant. If a third person fraudulently induces an agent to deceive his principal, to the damage of the principal and to his own benefit, such third person is liable for any damage the principal may suffer. It is the plain duty of agents, employed to exchange properties, to fully disclose to their principals whatever knowledge they possess that the other parties to the exchange are willing to give and are giving other property in the exchange, in addition to the property of which their principals are placed in possession; and if other defendants aid the agents in concealing that fact from the principals and share in converting and appropriating the properties thus concealed and retained, they are liable for the fraud to the same extent as are the authorized agents. And an instruction should authorize a recovery against all guilty participants.

5. ____: ____: ____: ____: Different Capacity: Conspiracy. All persons who engage in the perpetration of a fraud are liable for the damages occasioned thereby. Nor is it necessary that there be any privity of contract between the fraudfeasor and the person defrauded. If the instruction requires the jury, before they can find the five defendants or any of them liable in damages for fraud and deceit, to find that such defendants participated "in the fraud of wrongfully, intentionally and knowingly concealing and withholding and retaining said property, if any, with knowledge that the same in said exchange was to go to plaintiffs," it is not erroneous in not defining a conspiracy, or in not requiring the jury to find what ones of the defendants were agents and what ones were not. It is immaterial whether some of the defendants were plaintiffs' authorized agents, or whether they voluntarily attempted to induce the plaintiffs to make the exchange, or merely injected themselves into the transaction; all who knowingly and intentionally participated in the fraud are liable for the damage to plaintiffs defrauded of property intended for them.

6. ____: ____: Commingling Causes of Action. If plaintiffs' agents were guilty of practicing fraud and deceit upon their principals, all other defendants who knowingly and intentionally participated therein are likewise liable for damages, and an instruction which so declares does not commingle two causes of action, one against the authorized agents and one against the other participants.

7. ____: Instructions: Read Together. All instructions must be read together, and when one instruction fully and fairly tells the jury what things it is necessary to find in order to hold defendants liable for fraud and deceit, another instruction cannot be held defective on the theory that it does not advise the jury what was essential and necessary for fraud and deceit.

8. ____: Instruction: Measure of Damages. An instruction which authorizes the jury to assess damages alike against plaintiffs' authorized agents and all other defendants who knowingly and intentionally participated in the fraud does not state a wrongful measure of damages.

9. ____: ____: Peremptory. An instruction which does not direct a verdict for any one is not a peremptory instruction to find for plaintiffs.

10. ____: ____: Right to Retain Property. An instruction telling the jury that certain defendants had no right to retain certain property intended by the exchange for plaintiffs, if they were acting for and on behalf of plaintiffs, or in connection with and in assistance to others who were acting in such matters in plaintiffs' behalf, states the law, and applies to all defendants similarly situated.

11. ____: ____: Fidelity of Agent: Applicable to Facts: Abstraction. An instruction for plaintiffs in an action for fraud and deceit, telling the jury that "an agent is held to the most perfect faith in his dealings with his principal, and if he acts adversely to his employer in any part of the transaction or omits to disclose any interest which would naturally influence his conduct in dealings with the subject of his employment it amounts to fraud on the part of the agent" is a fair statement of the law, and is not a mere abstraction, or inapplicable to the facts, where the petition charges, and the evidence tends to prove, that the defendants, acting for plaintiffs in the exchange of properties, received, retained and appropriated properties intended, and given into their hands, for plaintiffs.

12. ____: ____: Added Words: Retention by Others Than Agents. The addition to defendants' instruction, in the action for fraud and deceit, of words requiring the jury to find that property received for plaintiffs in exchange for their farm was "wrongfully concealed from plaintiffs," that its possession was "wrongfully withheld from plaintiffs" and that in its division "defendants' knowingly and wrongfully participated," is not erroneous on the asserted ground that the added words make plaintiffs' authorized agents liable if they participated in the division of the property concealed and appropriated, regardless of how it may have been acquired by the other defendants, but under the facts pleaded and proven, which tend to show that all the defendants knowingly and intentionally participated in the concealment, conversion and division of the property, was a proper declaration of law.

13. FRAUD AND DECEIT: Instruction: Defense: Voluntary Participants: Agents. Where three of the defendants, in the action for fraud and deceit, wherein it was charged that properties intended for plaintiffs in the exchange of their farm were retained and concealed from them, defended on the claim that they actually made the trade pursuant to an option contract which expressly authorized them to retain the very properties which all the defendants did jointly retain, and evidence was produced from which the jury might reasonably infer that these three were ostensibly acting for plaintiffs in making the exchange, they cannot be heard to assert that a modification of their instruction was error because there was no evidence from which the jury could reasonably infer that they were agents for plaintiffs.

14. ____: ____: Option Contract: Acting for Plaintiffs. In an action for fraud and deceit, brought by plaintiffs against real estate agents, in which they charge that, in the exchange of properties, the other parties turned over to defendants certain properties which defendants concealed, retained and appropriated, and in which defendants have asked an instruction telling the jury that if they find that said third parties entered into a contract with one of the defendants by which they agreed to transfer and convey to said defendant all of the properties and said defendant, in consideration therefor, agreed to convey or cause to be conveyed to said third parties plaintiffs' farm, and did cause said farm to be conveyed to said third parties, then whatever part of the properties of said third parties said defendant did not use in procuring the deed to said farm did not become the property of plaintiffs and they are not entitled to recover the value thereof, the court properly added to said instruction a proviso that the jury further find from the evidence that said defendant was at no time acting for and in behalf of plaintiffs or in connection with others who were acting for them in making said exchange. To have given the instruction as requested would have deprived plaintiffs of their pleaded theory that said defendant knowingly aided their agents and the other defendants in the perpetration, and participated in the fruits, of the alleged fraud.

15. ____: ____: Disposal of Agents' Commissions. In an action for fraud and deceit, wherein plaintiffs charge that, in the exchange of their farm for other properties, defendants received, concealed, appropriated and sold valuable properties intended for them, an instruction telling the jury that if the authorized agents of plaintiffs had no agreement or understanding prior to the exchange to divide their commission with other agents, then what they did with their commission after the consummation of the exchange "is wholly immaterial" and the verdict must be for said agents, is properly refused, where there is substantial evidence that the agents promptly divided their commissions and the proceeds of the sale of the properties retained equally with the other defendants; for such evidence tends to show a prior agreement and concerted action among all the defendants to obtain possession of the retained properties, sell them and divide the proceeds. If such an instruction were given, the jury could not return a verdict for plaintiffs, even though they found that the authorized agents appropriated the concealed and retained properties and participated in the proceeds of the sale thereof, in addition to receiving the commission paid.

16. ____: ____: False Representation by Agents: Omitting Element of Concealment. In an action of fraud and deceit, based on a charge that defendants, acting for plaintiffs in the exchange of their farm for other properties, received, concealed and appropriated valuable properties intended for plaintiffs, an instruction for defendants relating to false representations made to plaintiffs by their authorized agents, from which is omitted the active element of concealment, is properly refused.

17. ____: ____: Participants. Whether or not some of the defendants were agents of the plaintiffs in the exchange of their farm for other properties, if they knowingly and wrongfully seized and retained properties that belonged to plaintiffs they were guilty of fraud, and an instruction asked by them, telling the jury that if they were neither agents nor representatives of the plaintiffs, directly or indirectly, prior to the consummation of the exchange, the verdict must be for them, is properly refused.

18. ____: ____: ____: False Representations: Omitting Element of Concealment. An instruction for defendants telling the jury that the burden of proof is upon plaintiffs to prove that the associates of their authorized agents falsely represented to them that no more property could be procured in exchange for their farm than what was actually received by them, and that such representations were false and known to be false, from which is omitted the active element of concealment pleaded and shown, is properly refused. Such an instruction directing a verdict for said associates, unless said false representations had been proved as the inducing cause of the conveyance by plaintiffs, would not have permitted a verdict for plaintiffs even though the evidence showed that their authorized agents actually made the fraudulent representations.

19. ____: Evidence: Prior Negotiations. In an action for fraud and deceit, evidence that defendants had tried to trade to plaintiffs other lands for their farm, and had endeavored to induce them to trade their farm for another farm, is competent, not for the purpose of showing agency in the particular transaction out of which arose the action for fraud and deceit, but to show that defendants had been previously negotiating with plaintiffs to sell or exchange their farm.

20. ____: ____: Misrepresentations as to Value of Property Received in Exchange. In an action for fraud and deceit growing out of an exchange of properties, wherein plaintiffs sue for the value of properties intended for them, but received, concealed and appropriated by defendants, acting for plaintiffs, evidence of misrepresentations, made by defendants to plaintiffs, as to the quality of the soil of a farm, and as to the invoice price and the value of a stock of goods, received by plaintiffs in the exchange, is competent, to show all the circumstances and the part defendants took in the entire transaction.

21. ____: ____: Reading Contract: Terms. Where it appears that a contract relating to the exchange of properties was signed by certain parties at one place, and later by other parties at another place, and that certain changes in it were made between the first and second signing, it is proper to permit a witness whose name appeared on it to testify whether he read it over before signing it. And under such circumstances the witness may likewise testify whether certain terms and conditions were in the contract when he signed it.

22. ____: ____: Division of Proceeds of Fraud. In an action for fraud and deceit, based on a charge that defendants, acting for plaintiffs in the exchange of properties, received, concealed and appropriated valuable properties intended for plaintiffs, evidence that the agents for plaintiffs and the agents for the other parties to the exchange pooled their commissions and the proceeds of the properties wrongfully appropriated, and divided the whole among themselves and other defendants participating in the fraudulent transaction, is competent, without proof of a prior agreement to so pool and divide the commissions and proceeds of sale.

23. ____: ____: Objection. A general objection to the admission of evidence often does not call for a ruling.

24. FRAUD AND DECEIT: Evidence: Hearsay: Harmless. Testimony by one of the parties to the exchange of properties, to the effect that his agent said he had a contract with plaintiffs and asked him to go and look at their farm, is not prejudicial.

25. ____: ____: Property Exchanged. In an action for fraud and deceit, in which plaintiffs sue for the value of valuable properties intended for them, but received, concealed and appropriated by defendants acting for them, testimony by the other parties to the exchange as to what properties they traded and turned over to defendants is properly admitted.

26. ____: ____: Supplying Name of Transferee. Where in a bill of sale the name of the transferee is left blank, it is competent for the transferor to testify that he did not know that the name of the transferee was left blank, and to whom he intended to transfer the property described in the bill of sale.

27. ____: ____: Contents of Contract: Oral Proof: In Presence of All Defendants. Testimony by the owners of the properties conveyed and to be conveyed, of the contents of the contract of exchange which plaintiffs claim was made between such owners and one of the defendants, as agent for plaintiffs, and retained by him and not produced, is competent and admissible, where all the defendants were present at the time it was made and thereafter assisted in practically every step leading up to the exchange of some of the properties of said owners for plaintiffs' farm and in the retention of the rest.

28. ____: ____: Forced to Bring Suit. Testimony by a witness that one of the five plaintiffs told him that he was forced by the others into bringing the suit is properly excluded, where such plaintiff is still a party of record and there is no showing that he is mentally incompetent.

29. ____: ____: Contents of Contract: Failure to Produce. A witness should not be permitted to testify to the contents of an option contract with one of the defendants which he says he wrote, where he testifies it was lying on the table in said defendant's house when he last saw it, and defendants have made no effort to produce it at the trial.

30. ____: ____: Impeachment of Witness. It is not error to exclude testimony offered for the purpose of impeaching a witness, where no foundation has been laid for the attempted impeachment.

31. ____: Participant: Separate Demurrer. In an action for fraud and deceit, based on the charge that defendants failed to disclose all the properties that had been given by other persons in exchange for plaintiffs' farm, and had concealed, withheld and converted a valuable part thereof to their own use, it is not necessary for plaintiffs to prove that each of the defendants was their authorized agent or that they were deceived by fraudulent representations made by each; but where there is substantial evidence that a defendant not only had a part in practically every step leading up to the exchange, but was an active and knowing participant in the concealment, retention and conversion of the property intended for and withheld from plaintiffs, his separate demurrer should be overruled, and he held liable as a joint fraudfeasor of the authorized agents, and of the other defendants who voluntarily assumed, or were invited or permitted by the agents, to participate in the fraudulent transaction.

Corpus Juris-Cyc. References: Agency, 2 C.J., Section 369, p. 714, n. 92; Section 574, p. 885, n. 9; Section 737, p. 966, n. 44. Appeal and Error, 4 C.J., Section 2952, p. 969, n. 56; p. 972, n. 62; Section 3000, p. 1017, n. 48. Evidence, 22 C.J., Section 704, p. 611, n. 78. Fraud, 27 C.J., Section 120, p. 9, n. 66; Section 181, p. 50, n. 23; p. 51, n. 28; Section 219, p. 78, n. 15, 17; Section 220, p. 79, n. 24; Section 239, p. 90, n. 37; p. 91, n. 40. Trial, 38 Cyc., p. 1378, n. 3; p. 1611, n. 7; p. 1620, n. 39; p. 1633, n. 12; p. 1720, n. 39; p. 1721, n. 52; p. 1778, n. 73; p. 1779, n. 75. Trover and Conversion, 38 Cyc., p. 2093, n. 57. Witnesses, 40 Cyc., p. 2719, n. 18.

Appeal from Saline Circuit Court. — Hon. Robert M. Reynolds, Judge.

AFFIRMED.

James Shook, Com P. Storts, W.H. Meschede and Lyons Ristine for appellants.

(1) The court erred in giving the plaintiffs' instruction number one, which purported to cover the entire case and direct a verdict for the plaintiffs. (a) Because if said instruction is an instruction authorizing the plaintiffs to recover because of the fraud and deceit of the defendants, it does not properly declare the law applicable to fraud and deceit, but rather assumes fraud on the part of the defendants. Lindsay v. Mining Co., 244 Mo. 438, 453; Allen Estate Assn. v. Boeke Son, 300 Mo. 575; Green v. Edmonds, 245 S.W. 378. (b) Because if said instruction purports to authorize a recovery for the plaintiffs against the defendants on the ground that the defendants were agents for the plaintiffs and made a secret profit, then the measure of damages is wrong, because the measure of damages in such case would be the amount actually received by the plaintiffs less whatever commission the plaintiffs had received. Herron v. Smith, 285 S.W. 544; Busse v. White, 302 Mo. 672; Degonia v. Railroad, 224 Mo. 564. (c) Because said instruction authorizes a recovery against all of the defendants if they assisted Wessendorf and Ehlers in said exchange, regardless of what capacity they were working in, and, of course, the defendants, Burgard, Doughty and Roberts would not be liable to the plaintiffs as agents if they were volunteers, or if they were acting for their own benefit, or if they were acting for the owners of the Garden City property, or if they were acting for the agents of the Garden City people, although, they might assist in the trade or exchange. Land Lumber Co. v. Chrisman, 204 Mo. 371; Devero v. Sparks, 189 Mo. App. 505. (d) Because said instruction makes the act of each defendant the act of the other defendants without requiring the jury to find that they were all agents for the plaintiffs or that they conspired together, and does not define what fact would constitute a conspiracy or concerted action. Menx v. Haller, 179 Mo. App. 472. (e) Because said instruction confused and intermingled two causes of action, namely, a cause of action for fraud and deceit and one on the theory that defendants were agents of the plaintiffs, and does not require the jury to find all of the essential facts on either theory, but improperly commingles the two theories. Wade v. Boone, 184 Mo. App. 88; Herron v. Smith, 285 S.W. 546. (f) Because under the pleadings it was admitted that Wessendorf and Ehlers were agents of the plaintiffs, and denied that defendants Burgard, Roberts and Doughty were agents, and the instruction does not properly declare the facts which the jury must find in order to constitute the defendants Burgard, Doughty and Roberts agents of the plaintiffs and liable as such. Hodkinson v. Machinery Co., 161 Mo. App. 87; Menx v. Haller, 179 Mo. App. 472. (g) Because the second amended petition pleads fraud and deceit of the defendants, and this instruction is at variance with the pleadings and proof in the case. Green v. Edmonds, 245 S.W. 378. (2) The court erred in giving the plaintiffs' instruction number two, which purported to cover the entire case and direct a verdict for the plaintiffs. (a) Because said instruction is in conflict with instruction one given by the plaintiffs. Shepard v. Transit Co., 189 Mo. 373; Porter v. Ry. Co., 199 Mo. 82. (b) Because said instruction does not properly define what is essential and necessary for fraud and deceit. Brown v. Ry. Co., 187 Mo. App. 104; Allen Estate Assn. v. Boeke Son, 300 Mo. 575; Lindsey v. Mining Co., 244 Mo. 453. (c) Because said instruction is contrary to and in conflict with the plaintiffs petition and the evidence in the case, because the petition doesn't plead and the proof doesn't show that any of the defendants were employed by the plaintiffs to effectuate an exchange of their farm to Kauffman, Mosser and Brasfield. Matlack v. Paregoy, 188 Mo. App. 95. (d) Because said instruction assumes that there was property wrongfully and intentionally concealed from the plaintiffs and assumes that said property was intended to be conveyed to the plaintiffs without requiring the jury to find such fact. Kansas City v. Woerishoeffer, 249 Mo. 1. (e) Because said instruction authorizes a finding against all of the defendants if the jury find that one or more were employed by the plaintiffs as their agents, merely because the others may have assisted in some way in effecting the exchange, without defining what kind of assistance would make them liable. Devero v. Sparks, 189 Mo. App. 505; Moran v. Railroad Co. (Mo. App.), 255 S.W. 331. (f) Because the measure of damages in said instruction is erroneous and wrong. Herron v. Smith (Mo. App.), 285 S.W. 544. (3) The court erred in giving plaintiffs' instruction number three, because it does not properly declare the law covering the measure of damages in this case. Boyd v. Wahl, 175 Mo. App. 181; Herron v. Smith, 285 S.W. 544. (4) The court erred in giving the plaintiff's instruction number five, because it wholly disregards the testimony of the defendants and is practically a peremptory instruction to find for the plaintiffs, contrary to the law and the evidence in the case, and because it doesn't properly define what it is necessary for the jury to find, in order to find that the defendants were agents of the plaintiffs, and because the same law applicable to agency would not apply equally against the defendants Wessendorf and Ehlers, who by their pleadings admitted they were agents of the plaintiffs, and the defendants Burgard, Doughty and Roberts. Devero v. Sparks, 189 Mo. App. 500, 505; Smith v. Southern, 210 Mo. App. 288. (5) The court erred in giving plaintiff's instruction number seven, because said instruction is an abstract statement which is not applicable to the facts in this case and does not instruct the jury what facts they must find in order to charge the defendant or defendants with fraud. Moran v. Railroad Co. (Mo. App.), 255 S.W. 335; Welsch v. Gleiforst (Mo. App.), 259 S.W. 852; Borowski v. Biscuit Co. (Mo. App.), 229 S.W. 428; Flood v. Busch, 165 Mo. App. 142; Gass v. Evans, 244 Mo. 329; McCaw v. O'Malley, 298 Mo. 401. (6) The court erred in adding to the defendants' given instruction number three before giving the same to the jury, because that which was added to said instruction does not properly declare the law applicable to this case, because it assumes that if any of the defendants other than Wessendorf and Ehlers received any property in exchange for plaintiffs' real estate and retained the same, the retention thereof was wrongful, without defining what facts would constitute a wrongful concealment and detention of such property, and because it makes the defendants Wessendorf and Ehlers liable if they participated in the division of such property, regardless of how it may have been acquired by the other defendants. Deunison Co. v. Aldrich, 114 Mo. App. 709; Smith v. Southern, 210 Mo. App. 288. (7) The court erred in adding to the defendants' given instruction number four, because there was no testimony from which the jury might reasonably infer that Burgard, Doughty and Roberts were agents for the plaintiffs, and the part added by the court to said instruction was not justified by the evidence. Smith v. Southern, 210 Mo. App. 288. (8) The court erred in adding to the defendants' given instruction number six, because the defendants' instruction number six, without said addition, properly declared the law, and the addition of the court rendered said instruction absolutely worthless and totally useless to the defendants, because by said addition the court says that, even though Doughty and his associates had a contract with Brasfield, Mosser and Kauffman, by which they could retain any part or all of the Cass County property as their own, provided they procured a conveyance of the Brockway Island, and a mortgage on the same, if they did anything towards accomplishing that end, then they couldn't avail themselves of that contract. This is not the law and is a gross misdirection to the jury. Smith v. Southern, 210 Mo. App. 288. (9) The court erred in refusing to give the defendants' requested instruction number two, because it properly declares the law applicable to the defendants Wessendorf and Ehlers. Dennison Co. v. Aldrich, 114 Mo. App. 709; 2 C.J. 714, sec. 368. (10) The court erred in refusing to give the defendants Wessendorf and Ehlers' requested instruction number four, because it properly declares the law applicable to an action for fraud and deceit. Lindsey v. Mining Co., 244 Mo. 453. (11) The court erred in refusing to give the defendants Burgard, Doughty and Roberts' requested Instruction five, because it properly declared the law applicable to the facts involved in this case, because if said defendants were not the agents of the plaintiffs there was no liability under the law and the evidence in this case. Devero v. Sparks, 189 Mo. App. 505. (12) The court erred in refusing to grant, the defendants Burgard, Doughty and Roberts requested instruction number seven, because said instruction correctly declares the law with respect to said defendants applicable for an action for fraud and deceit. See cases under 12. (13) The court erred in admitting incompetent, irrelevant and prejudicial evidence for the plaintiffs and against the defendants over the objections and exceptions of the defendants, as follows, to-wit: (a) The court permitted the plaintiff, Ritterbusch and plaintiffs' witnesses to testify that the defendants, Wessendorf, Ehlers, Burgard, Doughty and Roberts tried to trade a farm in Miller County for the plaintiffs' farm for the purpose of proving the defendants in this case were agents for the plaintiffs in trading their farm for the Garden City property. They also proved that the defendants tried to induce the plaintiffs to trade their farm for Mrs. Meng's farm south of Marshall for the same property. Dillen v. Ry. Co., 294 S.W. (Mo. App.) 442. (b) The court permitted the plaintiff Ritterbusch and plaintiffs' witnesses to testify as to misrepresentations about the quality of the soil of the farm in Cass County and to the invoice price or value of the hardware stock, when no such issue was within the pleadings. State ex rel. v. Ellison, 270 Mo. 645, 654; Degonia v. Railroad, 224 Mo. 564; Lorton v. Trail, 216 S.W. 56. (c) The court permitted the plaintiff Ritterbusch to testify that the contract which he signed wasn't read over to him, when there was no allegation of fraud or deceit practiced in procuring his signature and no claim that the contract didn't correctly state the agreement. Lorton v. Trail, 216 S.W. 56; State ex rel. v. Ellison, 270 Mo. 645. (d) The court permitted plaintiff Ritterbusch and the plaintiffs' witnesses to testify that subsequent to the closing of the deal for the exchange of properties, the various real estate agents pooled their commissions and interests and divided the same among themselves, without requiring the plaintiffs to prove or show that such an agreement existed prior to the consummation of the contract for the exchange of properties. Dennison Co. v. Aldrich, 114 Mo. App. 709. (c) The court permitted the plaintiffs' witnesses to testify as to what was in plaintiffs' contract marked "Exhibit A" when they signed it the first time, and as to what wasn't in there, and as to what was later put in, and as to whether or not they read it when they signed it or whether or not someone else read it to them, and there was no issue or controversy about any of those matters and not even any claim that the contract wasn't correctly and properly written. State ex rel. v. Ellison, 270 Mo. 645. (f) The court permitted plaintiffs' witnesses to testify as to conversations between Hoey and Clements and Brasfield, Kauffman and Mosser. This was hearsay testimony. Exter v. Kramer (Mo. Sup.), 291 S.W. 472. (g) The court permitted plaintiffs' witnesses Brasfield, Kauffman and Mosser to testify as to what Garden City property was exchanged for, to-wit, the Brockway Island, when Hoey negotiated the transaction for them. This was hearsay testimony. Exter v. Kramer (Mo. Sup.), 291 S.W. 472. (h) The court permitted statements made by Burgard outside of the presence of other witnesses, for the purpose of binding all of the defendants. Holt v. Williams, 210 Mo. App. 470. (i) The court permitted plaintiffs' witnesses Kauffman and Mosser to testify that they intended to convey certain personal property mentioned in plaintiffs' "Exhibit E" to the owners of the Brockway Island, when said bill of sale was made out in blank and delivered to the defendant Burgard. (j) The court permitted plaintiffs' witness. Brasfield to testify as to the contents of a contract which they claimed was made between Brasfield, Mosser and Kauffman on the one hand and Wessendorf, as agent for the plaintiffs, on the other hand, as evidence against the defendants Burgard, Doughty, Roberts and Ehlers. (14) The court erred in excluding material, competent and relevant testimony on behalf of the defendants over the objections and to the prejudice of the defendants, as follows: (a) The court would not permit one of the defendants' attorneys to testify that one of the plaintiffs, Mr. Leimkuehler, told him that the others forced him into bringing this lawsuit. (b) The court would not permit the defendant Roberts to testify as to the contents of a contract which he wrote at Wessendorf's house, after the plaintiffs had been permitted to testify as to the contents of that document. Reed v. Steward, 240 S.W. 206. (c) The court would not permit defendants to prove by Roberts, for the purpose of impeaching plaintiffs' witness Brasfield, that in a conversation at Wessendorf's house Brasfield testified that the optional contract written there was merely reducing a previous oral agreement to writing. Denhler v. Rys. Co., 195 Mo. App. 658.

James James for appellant E.P. Roberts.

(1) The court erred in giving plaintiffs' instruction number one over the objection of the defendant Roberts. This instruction is especially vicious and prejudicial with reference to the defendant Roberts. It makes this defendant liable if he participated in the trade or exchange of this property on behalf of the plaintiffs or assisted Wessendorf and Ehlers, plaintiffs' agents, in the exchange. According to it. Roberts would be liable for any service whatever that he might have rendered Wessendorf and Ehlers in this matter, regardless of his intent, purpose, knowledge, or what he did. Under it if Roberts, as a notary public, took an acknowledgment or affidavit, or wrote a contract or did any clerical work for Wessendorf and Ehlers in furtherance of this trade, or if he furnished his automobile to them for transportation, he would be liable. Certainly merely assisting plaintiffs' agents, regardless of the particular service rendered and regardless of intent or knowledge of the purpose and intent of the agents, could not make Roberts liable for any fraud or deceit or secret profits made by the agents themselves. Before the defendant, could be held liable it must be shown that he not only participated in the trade, but that he had actual knowledge of all the facts and circumstances under which the trade was made and that be himself was a party to the fraud and concealment and acted as agent for the plaintiffs. (2) This instruction is further erroneous in that it assumes that the defendants concealed and withheld from the plaintiffs certain property. The words "that the defendants, or any of them, concealed and withheld from the plaintiffs any of the property so agreed to be given and given in said exchange" assume the very facts that are disputed and were in issue on the trial. Laughlin v. Gorman, 209 Mo. App. 692. Even though plaintiffs' other instructions do not assume such facts this does not cure the error. Martin v. Investment Co., 206 Mo. App. 33, 226 S.W. 650; Comer v. Taylor, 82 Mo. 347. (3) The above instruction is further erroneous and prejudicial in the conclusion that "all of said defendants participating in the fraud of wrongfully, intentionally and knowingly concealed and withheld and retained said property, etc." This portion of the instruction assumes that a fraud was committed without defining what constitutes a fraud and without defining just what is meant or is included in the word "participating," and is further erroneous and prejudicial in assuming that this property was concealed and withheld. (4) This instruction is further erroneous in that the plaintiffs' case is based on the allegation that the defendants were plaintiffs' agents and this instruction which is intended to cover the entire case eliminates from the consideration of the jury the question of agency so far as the defendant Roberts is concerned. The petition alleges that all of the defendants were plaintiffs' agents. This instruction states that if the plaintiffs employed only Wessendorf and Ehlers as plaintiffs' agents and makes no reference whatever to the agency of the defendant Roberts. (5) In the conclusion of this instruction it further assumes that certain property was withheld and retained from the plaintiffs by stating that the measure of damages was the reasonable market value of the property so withheld and retained from the plaintiffs. (6) This instruction authorizes a recovery for the value of "an undertaking business" and "furniture store," That portion of the petition referring to these items describes these items as "The Undertaking Establishment, including fixtures and equipment" and "stock of furniture, fixtures and equipment." The value of a stock of goods and fixtures may be and generally is quite different from the business. "Business" is defined to be that which busies or occupies the time, attention and labor as his chief concern; that which one does for a living; occupation, employment; as, his business is that of a merchant, Cent. Dict. In purchasing a business its principal value may be determined by its long establishment as a going concern with a good reputation. Good-will also constitutes a valuable part of the business. Whereas, the value of a stock of goods and fixtures is not merely the actual market value of the particular items at the place where they are located. This instruction would authorize the jury to take into consideration not only the actual value of the merchandise and fixtures, but also the good-will, location and value as a live going concern. (7) The second instruction given by plaintiffs which purports to cover the entire case is also erroneous and prejudicial to this defendant Roberts. The instruction says, "If the jury find the plaintiffs employed one or more of the defendants as their agents." The plaintiffs' evidence is that they employed only Wessendorf and Ehlers as their agents, and the defendants Wessendorf and Ehlers admit in their answer that they were the agents and so employed by the plaintiffs, and there is no evidence whatever authorizing the court to submit the issue to the jury as to whether the defendant Roberts was an agent of the plaintiff, when both Roberts himself and the plaintiffs deny that he was their agent. (a) This instruction fails to designate what real estate or personal property in Cass County was exchanged or traded for. (b) It authorizes a recovery from the defendant Roberts if Wessendorf and Ehlers engaged, employed or permitted the defendant Roberts to assist them in this trade. (c) It assumes that there was property wrongfully and intentionally concealed from the plaintiffs, and assumes that some property was intended to be conveyed to the plaintiffs and no such property is described or referred to, and it further assumes that if the defendants did not get all of the property that the Cass County parties authorized to be conveyed to them the defendant Roberts was guilty of a fraudulent concealment, regardless of whether he had any knowledge of such fact. (d) This instruction also assumes that if the plaintiffs did not get all the property that was intended for them, it was wrongfully and intentionally concealed from the plaintiffs, regardless of who may have been guilty of such concealment. (e) This instruction would authorize a recovery against Roberts if he merely assisted Wessendorf and Ehlers in some way to make this trade and Wessendorf and Ehlers wrongfully and intentionally concealed any property from the plaintiffs without any knowledge upon the part of Roberts. In other words, making him liable for an innocent act on his part without any knowledge, purpose, desire or intent to defraud the plaintiffs in any manner. (8) Plaintiffs instruction number three assumes that property was withheld from the plaintiffs which is a fact that was at issue and disputed on the trial of the case and under the authority of the case of Laughlin v. Gorman heretofore cited this instruction is clearly erroneous.

R.H. Duggins, W.D. Summers, C.A.O. Leimbrock and Perry S. Rader for respondents.

(1) The first instruction given on behalf of the plaintiffs is not erroneous. (a) It specifically required the jury to find and believe from the evidence that Brasfield, Mosser and Kauffman "were willing to, agreed to and did exchange all of their property set out in this instruction, to said plaintiffs for their real estate described in the evidence," that "the other defendants or any of them participated in the trade or exchange of said properties on behalf of the plaintiffs, or assisted Wessendorf Ehlers in said exchange," that "the defendants or any of them concealed and withheld from the plaintiffs any of the property so agreed to be given and given in said exchange for their said real estate," and it permitted a finding against no defendant who did not wrongfully, intentionally and knowingly participate in the fraud of concealing and withholding and retaining said property, if any, with knowledge that the same in said exchange was to go to the plaintiffs, but it did declare, and properly, that each and every defendant "so participating in the retention of said property, if any, is liable to the plaintiffs, in damage, in such sum as was the reasonable market value of said property, retained from the plaintiffs." Said instruction was within the allegations of the petition, and was clearly supported by the evidence. (b) A fiduciary relation exists between an agent and his principal. An agent cannot speculate off of his principal in the subject-matter of his employment. He cannot place himself in a situation where self-interest impels him to overreach his principal. He may not seize benefits with both hands, coming as well as going. And where an agent wrongfully appropriates property which rightfully belongs to his principal, the courts will strip him of all benefits acquired at the expense of his principal and which should inure to the principal's advantage under the terms of his employment. Harrison v. Cravens, 188 Mo. 591; Norris v. Tayloe, 49 Ill. 17; Miller v. Railroad Co., 83 Ala. 274. (c) Concealment by defendants from plaintiffs that Brasfield, Kauffman and Mosser had agreed to give and did give the furniture, undertaking stock, tin shop and the store buildings for the island farm, was a fraud. Fraudulent concealment is the suppression of something the agent is bound to disclose. Kerr on Fraud and Mistake, 95. Concealment by the agent from his principal of facts which are material to the principal and by which an undue advantage is taken of him in a deal for real estate, is a fraud on the part of the agent. Paving Co. v. Investment Co., 309 Mo. 665; Derby v. Donahue, 208 Mo. 699. The agent "is bound to the exercise of the most perfect good faith, and to keep his principal informed of facts coming to his knowledge affecting his rights and interests. If after receiving instructions to sell property on certain specified terms, the agent learns that other and more advantageous terms can be obtained, it is his plain duty, and he is under every legal and moral obligation, to communicate the facts to the principal, that he may act advisedly in the premises." Holmes v. Cathcart, 88 Minn. 216; Hegenmeyer v. Marks, 37 Minn. 6; 21 R.C.L. 828, sec. 12; Door v. Camden, 55 W. Va. 226. The agent cannot, either directly or indirectly, have an interest in the sale of the property of his principal which is within the scope of his agency, without the consent of his principal, freely given, after full knowledge of every matter known to the agent which might affect the principal. That is to say, the defendants, without informing the plaintiffs that the furniture, undertaker's stock, tin shop, fixtures and the store buildings had been turned over to them to be traded for the island farm, could have no interest in those properties. Tyler v. Sanborn, 128 Ill. 136; Montgomery v. Hundley, 205 Mo. 138; Meek v. Hurst, 223 Mo. 698; Stove Co. v. Wilcox, 64 Conn. 122; Fechheimer v. Baunn, 37 F. 177. "An agent employed to sell his principal's property, whether it be real or personal, cannot, without the principal's full knowledge and consent, sell it to himself. And what he cannot do directly, he will not be permitted to do indirectly." 2 Mechem on Agency (2 Ed.) sec. 2131; Eldridge v. Walker, 60 Ill. 230; Hughes v. Washington, 72 Ill. 84. (d) The relation between the principal and agent being fiduciary and confidential, it is the duty of the agent to make full disclosure of all material facts to his principal and any concealment by the agent of material facts is a fraud, and the same principle applies where another aids in the agent's fraud by which the profits were made. It was the duty of Wessendorf Ehlers to make full disclosure to plaintiffs that Brasfield, Kauffman and Mosser were willing to give and were giving the furniture, undertaking stock, tin shop and the stores, in addition to the hardware and the 170-acre farm, for plaintiffs' farm, and Burgard, Roberts and Doughty, who aided Wessendorf Ehlers in concealing that fact from plaintiffs and shared in the appropriation of the properties thus concealed and withheld from plaintiffs, are liable for the fraud to the same extent as are Wessendorf and Ehlers. Ess v. Griffith, 128 Mo. 62; Zahn v. McMillin, 179 Pa. 155; 1 Mechem on Agency (2 Ed.) secs. 114, 115; Clark Co. v. Bank of Wheeling, 17 Pa. 322; Watterbury v. Barry, 145 N.Y. App. Div. 773; Pommerinke v. Bate, Saskatchewan L.R. 417; 2 Mechem on Agency (2 Ed.) p. 1714; Ashley v. Schmalinski, 46 La. Ann. 499; Guernsey v. Davis, 67 Kan. 378; 2 Mechem on Agency (2 Ed.) sec. 2051; 2 Mechem on Agency (2 Ed.) sec. 2137. "Clearly it is the law of England, and I think it is also law in this country, that if a third person fraudulently induces an agent to deceive his principal, to the detriment of the latter and to his own benefit, then he is liable for any damages which the principal may suffer" quoted from Nathan v. Blakes, (1904), Transv. L.R.S.C. 626, in footnote to Sec. 2137, 2 Mechem on Agency (2 Ed.) p. 1711. Plaintiffs are entitled to recover damages from Burgard, Doughty and Roberts, who, as is shown by their own testimony and the testimony of every witness, participated and concerted and colluded with Wessendorf and Ehlers, at every step, from the inception of the trade to the final distribution of the money obtained for the properties fraudulently and jointly appropriated by all of them. (e) The defendants were guilty of that form of conversion denominated trover. 38 Cyc. 2005. They appropriated $18,000 or $19,000 worth of property which Brasfield and Kauffman traded for plaintiffs' island farm, and turned over to the defendants with the intention that it should go to the owners of the island and which therefore belonged to plaintiffs, and these properties defendants "reduced to cash" and divided the cash equally among themselves and three other joint conspirators. This was clear conversion. Allen v. McMonagle, 77 Mo. 478; Warnick v. Baker, 42 Mo. App. 439; McLachlin v. Barker, 64 Mo. App. 511. The appropriation of the blank deed conveying the lots and stores, and of the blank bill of sale of the furniture, undertaking stock and tin shop, was criminal conversion. Secs. 3319, 3327, R.S. 1919. And in appropriating the properties described in the deed and bill of sale to their own use defendants were likewise guilty of criminal conversion. Sec. 3329, R.S. 1919; State v. Crosswhite, 130 Mo. 359. (f) It matters not whether this be denominated an action for fraud and deceit or an action on the case, for in either case the plaintiffs are entitled to recover the value of the property wrongfully appropriated by defendants and converted to their own use. The acts of the defendants in withholding and retaining property belonging to plaintiffs, and selling it and appropriating the money for which it was sold, was conversion, and in conversion, where defendant has sold the property wrongly appropriated to innocent purchasers and thus made it impossible for plaintiffs to recover the specific property, plaintiffs are entitled to recover damages, and the damages recoverable is the value of the property thus wrongfully appropriated, at the time it was appropriated. The petition states an action on the case, by stating the facts, as the statute requires. Sec. 1220, R.S. 1919; 20 Cyc. 86-90; 6 Cyc. 689; Kujek v. Goldman, 150 N.Y. 176; Cole v. High, 173 Pa. 590; Benjamin v. Mattler, 3 Colo. App. 231. It therefore makes no difference whether this action is denominated an action on the case or an action for fraud and deceit, the petition alleges sufficient facts to constitute an action for fraud, and the measure of damages is the value of the property at the time the defendants converted it to their own use. By selling it to Brasfield and Kauffman, under the false representation that they had bought it from the plaintiffs, they made it impossible for the plaintiffs to maintain trover for the recovery of the property, and all the authorities agree that under such circumstances plaintiffs may maintain suit for damages, and that the measure of their damages is the value of the property at the time defendants appropriated it. Construction Co. v. Hayes, 191 Mo. 251; Rosencranz v. Dry G. Co., 175 Mo. 518; Grant v. Hathaway, 118 Mo. App. 604; Morse v. Bates, 99 Mo. App. 560; Mfg. Co. v. Huff, 62 Mo. App. 124. And all defendants who participated in the fraud are liable. 20 Cyc. p. 84; Barnett v. Ground, 304 Mo. 593; Lee v. Lemert, 26 Kan. 111; Burnham v. Leetz, 8 Kan. App. 361; Patten v. Gurney, 17 Mass. 182; Moore v. Fryman, 154 Iowa 534; Guerney v. Tenny, 197 Mass. 457; Mercantile Co. v. Stiefel, 82 Kan. 7; Brucker v. Kairn, 89 Neb. 274; Wichita Falls Compress Co. v. Moody, 154 S.W. 1032; Bauman v. Bowles, 51 Ill. 380; Weatherford v. Fishback, 4 Ill. 170; First Nat. Bank v. Steele, 99 N.W. 786; Chester v. Dickerson, 52 Barb. (N.Y.) 349. "A joint action lies against two or more persons participating in a fraud whereby another is injured, although there was no previous conspiracy." 20 Cyc. 95, sec. 2; Koontz v. Kaufman, 31 Mo. App. 415; Bobbs v. Boatright, 195 Mo. 694; Miller v. John, 111 Ill. App. 56. (g) The evidence shows a studied concealment, and concerted action among all the defendants, and a combination between them and Hoey to deceive and mislead both plaintiffs and Brasfield and Kauffman, and to conceal from all the principals their joint fraudulent scheme. But it was not necessary either to allege or prove conspiracy. The gravamen of the action is the fraud and damage, and not the combination. Proof of the conspiracy is only evidentiary of the fraud Miller v. John, 111 Ill. App. 56; Brackett v. Griswald, 112 N.Y. 454; Butter v. Duke, 79 N.Y.S. 419; Epp. v. Duckett, 284 Mo. 133. (h) It is immaterial whether Roberts, Doughty and Burgard were employed as agents by the plaintiffs, or voluntarily attempted to induce plaintiffs to make the exchange or impertinently injected themselves into the transaction. The gist and essence of the action is fraud, and all the defendants participated in the fraud and in appropriating to their own use properties which did not belong to them, and which were not only intended by Brasfield and Kauffman to be turned over to plaintiffs for their island farm, but were actually turned over by Brasfield and Kauffman to the agents of plaintiffs and these three other defendants for the use of the plaintiffs, who had conveyed their island farm to Brasfield, Mosser and Kauffman by a deed obtained by the concerted acts of all the defendants. The facts make all the defendants joint fraudfeasors, and all are jointly and severally liable for the value of the property deceptively and fraudulently obtained and wrongfuly concealed and retained by the concerted acts of all the defendants and equally divided among them. The evidence clearly shows that all the defendants were joint fraudfeasors, and where that fact is established it is wholly immaterial whether all of them were employed agents. The fact that three of the defendants combined with the two employed agents to appropriate property which did not belong to them will not excuse their fraud. 12 R.C.L. p. 402, sec. 150; Ferrall v. Bradford, 2 Fla. 508. Burgard, Doughty and Roberts adopted as their own the fraud and conversion of Wessendorf and Ehlers and it certainly will not be contended that those two employed agents were not guilty of fraud. 21 R.C.L. 833, par. 15; 31 Cyc. 1470, par. 4. All of the defendants participated in the concealment and distribution, and all are severally and jointly liable for the conversion. Milton v. Johnson, 79 Minn. 170. The conversion of his principal's funds renders the agent liable in tort, and every person participating in the conversion is a fraudfeasor and jointly and severally liable. Reeside v. Reeside, 49 Pa. 322; Nading v. Howe, 23 Ind. App. 690; 38 Cyc. 2054, par. 4; Laughlin v. Barnes Parrott, 76 Mo. App. 262; Stallings v. Gilbreath, 146 Ala. 484 (6); Clark v. Whitaker, 10 Conn. 320; Ballentine v. Joplin, 135 Ky. 70; Hill v. Campbell Com. Co., 54 Neb. 59; Mcloon v. Read, 73 N.H. 153; West. Union Tel. Co. v. Construction Co., 70 N.H. 37; Clarkson Home v. Railroad, 182 N.Y. 47. (i) The evidence that Roberts was a joint fraudfeasor, in the concealment, in the appropriation of the properties and in the final distribution of the money for which they were sold, was substantial, and the verdict of the jury is conclusive of the issue. A sale of another's property is evidence of conversion. Koch v. Blanch, 44 Mo. 542; Mfg. Co. v. Huff, 62 Mo. App. 124. Roberts may not have sold the property, but he shared in the money for which it was sold by Doughty and Burgard, and he is as much a fraudfeasor in the eyes of the law as they are. It would be to disregard the facts of this case and the law as well, to rule that there is no substantial evidence to support a verdict finding Roberts to be a joint fraudfeasor with the rest. (2) Plaintiffs' instruction numbered two is not erroneous. It correctly hypothesized the facts which authorized the jury to return a verdict against all the defendants as joint fraudfeasors. (a) Appellants do not point out wherein said instruction conflicts with instruction numbered one. To destroy a judgment so thoroughly just as this, it is scarcely to be expected that the court or respondents will labor to discover conflicts which appellants are unable to discover for themselves. (b) Plaintiffs' instruction numbered one had correctly defined fraud and deceit. It required the jury to find that defendants had "concealed and withheld from the plaintiffs property agreed to be given and given in said exchange for their said real estate," and then told the jury that all of said defendants participating in the fraud of wrongfully, intentionally and knowingly concealing and withholding and retaining said property, if any, with knowledge that the same in said exchange was to go to the plaintiffs, are liable to the plaintiffs in damages. That was a sufficient definition of the "essential and necessary" elements of fraud and deceit. Instruction numbered two accepted this definition of fraud, and makes liable those defendants who assisted and aided in the concealments of defendants Wessendorf and Ehlers and, by their connivance, permission and engagements, participated in negotiating said exchange and shared in the proceeds of the property wrongfully and intentionally concealed from the plaintiffs. The instruction fitted the facts alleged and proved, and fully set forth the acts which constituted the fraud. (c) Appellants' contention that the court erred in giving said instruction numbered two "because the petition doesn't plead and the proof doesn't show that any of the defendants were employed by the plaintiffs to effectuate an exchange of their farm to Kauffman, Mosser and Brasfield," is not to be reconciled with the answer of Wessendorf and Ehlers in which they "admit that they were the agents of the plaintiffs in the exchange of the said Saline County property for the property in Cass County, Missouri, which was obtained by the plaintiffs." Such being the answer, it was not necessary to prove that Wessendorf Ehlers were the agents of the plaintiffs in making such exchange — although it was proved. (d) Said instruction does not assume that there was property wrongfully and intentionally concealed from the plaintiffs, and does not assume that said property was intended to be conveyed to the plaintiffs without requiring the jury to find such fact. The instruction told the jury that "if . . . you find from the evidence that all of those so participating in negotiating said exchange shared in the proceeds of the property wrongfully and intentionally concealed from the plaintiffs, if any, and which was intended to be conveyed to the plaintiffs," etc. Instruction numbered one had already required the jury to find that the defendants had "concealed and withheld" from the plaintiffs property agreed to be given and given in exchange for their real estate. All instructions must be read together, and when these two are read together, it is clear that the jury were required to find as a fact that property was wrongfully and intentionally concealed, and that such property was intended to be conveyed to the plaintiffs. Besides, every one of the defendants who testified at all said that he never, at any time, told any one of the plaintiffs that the furniture, undertaking stock, tin shop and stores were placed in the hands of defendants and were acquired by defendants in the trade, but Kauffman's testimony that Burgard, who after the trade was in charge of these properties for himself and the other defendants, told him that Burgard and the other defendants had bought these properties from the plaintiffs, went undenied by any defendant, and it was denied by no one, but admitted by all the defendants who testified, that these defendants took possession of these properties immediately after the trade, sold them and divided the proceeds among themselves. Even if this instruction had assumed that defendants concealed these properties, and that it was the intention of Brasfield and Kauffman to convey them to plaintiffs, it would not have been prejudicial error, for it is never error for an instruction to assume an uncontradicted fact which the evidence clearly establishes. The only thing pertaining to the concealment which it was necessary for the jury to find was that it was "wrongfully and intentionally" done, and that this instruction, and instruction numbered one, expressly required the jury to find. (e) Said instruction numbered two is not erroneous in not defining what kind of assistance would make the participating defendants liable. The instruction required the jury to find that the plaintiffs employed one or more of the defendants to negotiate an exchange of their farm for real estate and personal property of Kauffman, Mosser and Brasfield located in Cass County, and then told them that if they further find that the defendants so employed engaged, employed or permitted other defendants to assist them in said exchange, and if they further find that "all those so participating in negotiating said exchange shared in the proceeds of the property wrongfully and intentionally concealed from the plaintiffs, and which was intended to be conveyed to the plaintiffs," then all those so participating and sharing "are equally liable for the damage" to the plaintiffs. That instruction, in effect, required the jury to find that Wessendorf Ehlers were employed by plaintiffs to do a definite thing, to-wit, to negotiate an exchange of plaintiffs' farm for real estate and personal property belonging to Kauffman and others; that Wessendorf Ehlers engaged, employed or permitted Burgard, Doughty and Roberts "to assist them in said exchange;" but the jury could not hold liable for damage to plaintiffs any one of the three so engaged, employed or permitted unless they further found that he participated in negotiating said exchange and shared in the proceeds of the property wrongfully and intentionally concealed. The instruction does not make liable all five of the defendants simply because only one or two of them were employed by plaintiffs. It makes liable only those who participated in negotiating the exchange. It does not make liable all those who participated in negotiating the exchange, but only those participants who shared in the proceeds of the property. If appellants thought that the instruction did not sufficiently define "what kind of assistance would make them liable" it was their duty to ask an instruction which would have more definitely specified "what kind of assistance" would not make them liable. The law throughout America is that every person is liable who participates in a fraud, by instigating, aiding or assisting another, or who benefits by its proceeds, in whole or in part. Authorities cited under division h of Point 1, supra. The measure of damage stated in said instruction numbered two is correct. It is "the reasonable market value of the property so withheld by the defendants, if any, belonging to the plaintiff." That is the accepted rule in an action at law where the defendants have appropriated the property and made it impossible for plaintiffs to recover the property itself. (3) Plaintiffs' instruction numbered three correctly stated the measure of damages. It told the jury that if their verdict was for plaintiffs it "should be for such a sum as you find from the evidence was the reasonable market value of the property withheld from the plaintiffs, if any, at the time of the closing of said deal and exchange." Appellants do not favor the court with a statement of wherein this instruction "does not properly declare the law covering the measure of damages in this case." We venture the assertion that appellants cannot find a case in America that directly or impliedly would condemn that instruction. (4) Appellants assign several grounds for their assertion that "the court erred in giving plaintiffs' instruction number five." Said instruction told the jury that neither Doughty nor Burgard had any option authorizing them to claim, receive, possess or retain any of the property belonging to Brasfield, Kauffman and Mosser which was intended by them to be included in the exchange of their property to plaintiffs for their island farm, and that neither Doughty nor Burgard had any right under any contract in evidence, to retain the furniture, fixtures, undertaking goods and equipment, the tin shop or real estate in Garden City, or to withhold the same from plaintiffs, "provided the jury further find and believe from the evidence that in the matters in evidence relating to the exchange of properties between plaintiffs and Brasfield, Mosser and Kauffman the said Doughty and Burgard were acting for and in behalf of plaintiffs or in connection with and in assistance with others who were acting in such matters in behalf of plaintiffs" these quoted words being added by the court. (a) Appellants say that this instruction "wholly disregards the testimony of the defendants and is practically a peremptory instruction to find for the plaintiffs, contrary to the law and the evidence in the case." Certainly it cannot be condemned on those grounds. It directs no finding at all for any one. It does not disregard the evidence, but if only the first part relating to the option is considered it may be a declaration of law to the effect that if the evidence of all the defendants be taken as true their evidence does not tend to show that either Doughty or Burgard had a contract with Brasfield and Mosser by which they authorized Doughty or Burgard to trade their Garden City properties to plaintiffs for their island farm. In view of the facts the court could very properly have declared that the option contract was illegal and void. Reigart v. Coal Coke Co., 217 Mo. 142; Ringer v. Holtzelaw, 112 Mo. 523. But the instruction took into consideration something more than the option. It did not declare the option contract void; it gave plaintiffs no right to recover on the theory that that pretended contract was not binding. It simply told the jury that neither Doughty nor Burgard was authorized by that contract to retain or claim any of the property intended by Brasfield and Mosser to be included in the exchange for plaintiffs' farm, and that neither Doughty nor Burgard had any right under any contract in evidence, to retain the furniture undertaking stock, fixtures, tin shop or stores, if Doughty and Burgard were acting for plaintiffs in the exchange of the properties, or in connection with and in assistance of others who were acting in such matters in behalf of plaintiffs. That certainly is the law. Neither Doughty nor Burgard could be acting in a dual capacity. They could not be acting both for themselves and as agents or subagents of plaintiffs. They could not claim these properties, intended by their owners to be given and actually given for the island farm, under their option contract and as agents for plaintiffs. This instruction does not tell them that they could not claim them under their option contract; it only tells them that they could not claim and retain them under their option if they were acting for plaintiffs, either as agents or in connection with or in assistance with Wessendorf and Ehlers in making the exchange. And that certainly is the law. Holmes v. Cathcart, 88 Minn., 216: 2 Mechem on Agency (2 Ed.) sec. 2051. (b) It is further asserted that this instruction numbered five is erroneous "because the same law applicable to agency would not apply equally against defendants Wessendorf and Ehlers, who by their pleadings admitted that they were agents of the plaintiffs, and the defendants Burgard, Doughty and Roberts." The authorities cited by appellants do not sustain any such an absurd proposition. Appellants do not point out any reason why the same law applicable to Wessendorf and Ehlers does not apply to Burgard, Doughty and Roberts. One can only conjecture what is appellants' ground for asserting that the law does not apply equally to all the defendants. The petition charges and the proof shows that all the defendants participated in the concealment and shared equally in the proceeds of the property wrongfully appropriated, and it certainly is the law that all persons, whether employed agents to sell or engaged by the agents to assist in selling or who impertinently inject themselves into the transaction, who assist in seizing and converting to their own use property which belongs to another, are joint fraudfeasors and equally liable, jointly and severally. (5) Instruction number seven given for plaintiffs is not erroneous as an abstract proposition of law. The instruction stated the law correctly as far as it went. Harrison v. Craven, 188 Mo. 591. It did not, and could not, mislead the jury. None of the cases cited by appellants condemns it. An instruction is not to be condemned as an abstract proposition of law unless it is calculated to mislead the jury or to injure the opposite party. Fillingham v. Transit Co., 102 Mo. App. 574; Burkard v. Rope Co., 217 Mo. 483. (6) Defendants' instruction numbered three as given told the jury that Wessendorf and Ehlers were not liable if they did not know that other property in addition to the hardware and 170-acre farm could be obtained for the Brockway Island, unless "said defendants knowingly and wrongfully participated" in the division of the proceeds of property received by the other defendants and wrongfully concealed and wrongfully withheld from the plaintiffs. The instruction as asked was wrong; it excused Wessendorf and Ehlers for appropriating property which they did not know at the time the deal was consummated that they might procure for plaintiffs' farm. In view of the evidence, the court might well have refused the instruction as asked. The court is not to be censured for attempting to make it conform with common honesty and the law. The words added by the court simply meant that those defendants were liable if they knowingly and wrongfully participated in the division of the proceeds of property belonging to plaintiffs which the other defendants associated with them had wrongfully concealed and wrongfully withheld from plaintiffs. Unless that is the law, conversion is lawful. (7) There was abundance of evidence from which the jury could reasonably infer that Roberts, Burgard and Doughty were voluntarily and actively associated with Wessendorf and Ehlers, aiding them and assisting them, at every step, from the time plaintiffs put their island farm in the hands of Wessendorf and Ehlers for trade, until the final distribution among the five of them of the $10,400 for which the concealed and retained properties were sold, and of the $1125 commissions paid by plaintiffs to Wessendorf Ehlers for making the trade for them. The evidence not only shows that these three were trying to get in on the deal before the employed agents and the plaintiffs left Marshall on Saturday morning for Garden City, and that they not only allied themselves with the employed agents, but that they largely took charge of the negotiations and became the active agents of plaintiffs in dealing with Brasfield, Kauffman and Mosser and their agents. (8) It would have been error to have given defendants' instruction numbered 6 as asked. Doughty, Burgard and Roberts could not have lawfully acted in a dual capacity. They could not have acted as agents of plaintiffs and claimed the retained property under their pretended option contract. The instruction did not forbid the jury from finding that they were entitled to claim the retained property under their concealed option contract, though that contract was not pleaded as a defense, but it did tell the jury that the alleged contract was no defense if the jury found from the evidence that Doughty and his associates were acting for or in behalf of plaintiffs or in connection with others who were acting for the plaintiffs, and that was proper. (9) The court properly refused defendants' instruction numbered 2. As asked it told the jury that if Wessendorf and Ehlers had no agreement or understanding prior to the exchange of the properties to divide their commissions with any other agents, then what they did with their commissions after the consummation of the exchange of the properties "is wholly immaterial and your verdict must be for defendants Wessendorf and Ehlers." What they did with the commissions paid to them by plaintiffs was a material fact bearing on the issues. That they divided their commissions with the other defendants on the same day they were paid tended to show that there was an agreement to divide with the other defendants from the outset. Proof of the prompt division of the commissions tended to prove a concerted action among all the defendants to obtain possession of the retained properties, sell them quickly and divide the proceeds equally among the eight. Besides, this instruction told the jury that if there was no agreement or understanding prior to the consummation of the trade to divide the commissions, their "verdict must be for the defendants Wessendorf and Ehlers." If given, the jury could not have returned a verdict for the plaintiffs although they found from the evidence that those two defendants appropriated the furniture, undertaker's stock, tin shop, fixtures and the stores, and each received a check for $750 from Hoey Brasfield as their portion for which those properties were sold, in addition to their commission of $1125. (10) The court properly refused defendants' requested instruction numbered 6. It entirely omitted any reference to concealment as a fraud. The books are full of cases that make concealment as heinous an element of fraud as is willful misrepresentation, and the petition charged that "the defendants did knowingly, wrongfully, fraudulently and intentionally conceal," etc., and the evidence abundantly proves that charge, and this instruction required the jury to return a verdict for Wessendorf and Ehlers unless those two defendants "fraudulently stated to the plaintiffs that no property could be procured for the plaintiffs for the exchange of properties other than the hardware and implement stock and the 170-acre farm," and permitted no verdict against these two if the other defendants fraudulently made that statement. It permitted no verdict against these two for any other fraud committed by them or the other three, although the evidence showed the five to be in collusion at every step to deprive the plaintiffs of their property, and to appropriate property which belonged to none of the defendants. It entirely excluded any consideration of the fraud made of the blank bill of sale and the blank deed, and it entirely omitted all reference to concealment, which was the active element of fraud shown by the evidence. (11) Defendants' refused instruction numbered 5 in effect would have told the jury that plaintiffs could not have recovered from Burgard, Doughty or Roberts the value of plaintiffs' property which they seized and converted to their own use, if they were not the agents or the representatives of the plaintiffs. No court has ever sanctioned that sort of dishonesty. It mattered not what sort of scheme or participation these defendants employed, they were guilty of fraud if they seized and retained property which did not belong to them. (12) Defendants' refused instruction numbered 7 omitted the element of concealment. It told the jury that unless "Burgard, Doughty and Roberts fraudulently stated to the plaintiffs that no property could be procured for the plaintiffs for the exchange of properties other than the hardware and implements and the 170-acre farm" their verdict must be for those three defendants. It permitted no verdict for plaintiffs against them if the other two defendants made that fraudulent statement. Everything we have said above under Point 10 of the kindred instruction asked for Wessendorf and Ehlers applies with equal force to this instruction. It is here proper to say that no case cited by appellants gives any support to their assignments. (13) The court committed no error in admitting or excluding evidence. (a) The court did not permit plaintiffs to prove that defendants tried to trade a farm in Miller County "for the purpose of proving the defendants in this case were agents for the plaintiffs in trading their farm for the Garden City property." Nor was it error that "plaintiffs proved that the defendants tried to induce plaintiffs to trade their farm for Mrs. Meng's farm south of Marshall for the same property." For the purpose of proving the previous acquaintance and relations of plaintiffs and defendants, plaintiffs undertook to prove these facts. No rule of law makes this evidence incompetent. Its purpose was to prove the previous acquaintance of the plaintiffs and defendants, and as stated by counsel at the time it was first offered, was offered to show that defendants had previously been negotiating with plaintiffs to sell their island, and defendants themselves testified the same facts and for the same purpose. It did no harm. (b) No objection was offered to the testimony relating to the quality of the soil of the 170-acre Cass County farm. The testimony as to what Wessendorf and Ehlers said was a part of the recital by the witnesses of the conversation at the time those agents were talking up the trade with plaintiffs. Ritterbusch and Peuster were asked to state what was said when they first went to the office of Hoey and Clements to talk over the trade, and they said that Wessendorf asked Ehlers what the hardware would invoice, and Ehlers said about $15,000 or $17,000, and Wessendorf said it would invoice $22,000. "Every one" of the defendants was present. It was not offered to prove the value of the hardware stock. The court specifically ruled that it was competent only as a part of the general conversation then had. It was competent not only for that reason, but it was competent as showing that defendants were endeavoring to induce a belief in the minds of plaintiffs that they were getting a good bargain for their farm, and as one method of inducing them to inquire for no other property. There was no error. (c) The court could very properly have refused to permit Roberts to testify to the contents of the option contract, because he testified that it was lying on the table in Wessendorf's house when he last saw it, and defendants made no effort to produce it. But the court permitted him to state what were the contents of the contract. At first the court ruled that he could not state its contents, but when he testified that he drew only one contract at that time the court permitted him to state its contents and tell all about it. (14) The facts establish fraud on the part of all the defendants, and plaintiffs' clear right to the verdict returned by the jury. There is no merit in any complaint made by appellants in their brief. The case was well tried, and no material or prejudicial error appears anywhere in the long abstract. Such being the case the statute requires that the judgment be affirmed. Sec. 1513, R.S. 1919; Mann v. Doerr, 222 Mo. 15.


This was an action for fraud and deceit by Frank Leimkuehler, Henry Ritterbusch, A.C. Peuster, Christ Zimmerman and Hugo Teckemeyer, plaintiffs, against George Wessendorf, T.M. Ehlers, Roy Burgard, Lot A. Doughty and E.P. Roberts, defendants. Respondents, who were plaintiffs below, owned about nine hundred acres of land in Saline County, Missouri, known as Brockway Island, and in this action they sought to recover the value of certain properties alleged to have been fraudulently concealed and appropriated by defendants in the exchange of this land for a farm and other properties in Cass County, Missouri, owned by persons not parties hereto.

Plaintiffs went to trial on their second amended petition, which, after alleging their ownership of the Saline County land, charged that on the ____ day of May, 1923, defendants were engaged in the real estate business; that on said date they inquired of plaintiffs whether or not they would be interested in exchanging their land for property in Garden City, Cass County, Missouri, consisting of a stock of hardware, implements, fixtures and equipment, known as Garden City Hardware Company, owned by J.M. Kauffman and J.B. Mosser; that afterwards, on the ____ day of May, 1923, plaintiffs in company with defendants went to Garden City for the purpose of looking at said property, and upon their arrival were informed by defendants that a farm of one hundred and seventy acres in Cass County, owned by J.E. Brasfield and subject to a deed of trust securing an indebtedness of $15,000, could also be included in the trade; that defendants as plaintiffs' agents showed them said stock of hardware and said farm and represented that they could exchange their land for the same provided plaintiffs would secure a loan of $5,000 on their land, subject to the approval of said land by the said Brasfield, Kauffman and Mosser; that at the time defendants well knew that the said Brasfield, Kauffman and Mosser had agreed with defendants to transfer certain property for plaintiffs' land, but they did not inform plaintiffs thereof and concealed such fact from them, said property being described in plaintiffs' petition as follows:

"First, the said stock of hardware, implements, fixtures and equipment owned by J.B. Mosser, and J.M. Kauffman, known as the Garden City Hardware Co.

"Second, the said 170 acres in Cass County, Missouri, owned by J.E. Brasfield, subject to a deed of trust for $15,000.

"Third, lot 6, and the northwest forty feet of lot 5, Block 17, in Garden City, Missouri, owned by J.E. Brasfield and J.M. Kauffman.

"Fourth, tin shop contents and equipment owned by J.M. Kauffman and J.E. Brasfield.

"Fifth, the undertaking establishment, including fixtures and equipment owned by J.E. Brasfield and J.M. Kauffman.

"Sixth, stock of furniture, fixtures and equipment owned by J.M. Kauffman and J.E. Brasfield."

That after inspecting plaintiffs' land and after plaintiffs had procured a loan of $5,000 thereon the said Brasfield, Kauffman and Mosser agreed to said exchange. The following allegations also appear in plaintiffs' second amended petition:

"The plaintiffs then made a deed to the Saline County, Missouri, farm to the said Brasfield, Kauffman and Mosser, believing that they were receiving and acquiring title to all of the property included in said exchange, and the said Brasfield made a deed to the 170 acres in Cass County, Missouri, to the plaintiffs, subject to said deed of trust, and the said J.M. Kauffman and J.B. Mosser made and executed a bill of sale to the plaintiffs to the said stock of hardware, implements and equipment and at the time of the making of said deed and exchange of said properties, the plaintiffs did not know, nor had they been informed by the defendants, that the said Kauffman, Brasfield and Mosser had agreed to include all of the other property described above in said exchange, but the defendants fraudulently stated to the plaintiffs that the property being turned over to them was all that was being given in said exchange by the said Kauffman, Brasfield and Mosser, and fraudulently concealed from the plaintiffs that any other property was being turned over to the defendants, and that by reason of said false and fraudulent representations and concealments made by the defendants, the plaintiffs relying on said representations, closed the deal, and the plaintiffs were defrauded by the defendants out of said other property, which was included in said exchange. That at the time of the consummation of said exchange of properties, the defendants well knew that all of the property received by them in said exchange was the property of the plaintiffs. That at the time of the negotiations and exchange of said plaintiffs' farm the defendants did knowingly, wrongfully, fraudulently and intentionally conceal from the plaintiffs the fact that the said Brasfield, Kauffman and Mosser had agreed with the defendants to include and had included all of the property above described in said exchange owned by the said Brasfield, Kauffman and Mosser, and did fraudulently, wrongfully and knowingly and intentionally permit the plaintiffs to enter into said contract and negotiations of said farm owned by the plaintiffs, for the equity in said 170 acres of land, and stock of hardware, implements, fixtures and equipment. And that said defendants did wrongfully, fraudulently, knowingly and intentionally represent to the plaintiffs that the said Kauffman, Brasfield and Mosser had agreed to include only said equity in said farm of 170 acres, and said stock of hardware, implements, fixtures and equipment, when in fact said defendants knew that said representations were false and fraudulent, and said defendants knew that said plaintiffs were relying upon said representations so made by the defendants, when they made said contract and agreed to said exchange of said properties, and that the said plaintiffs believed when they signed said contract that they were receiving all of the property that the said Mosser, Kauffman and Brasfield had agreed to include in said exchange, and the said defendants knew at the time of the signing of said contract that said plaintiffs were being defrauded out of said property by concealing from the plaintiffs said facts."

The petition further alleged that the value of the property thus fraudulently concealed and withheld from plaintiffs and appropriated by defendants was $22,000, for which amount plaintiffs prayed judgment.

Defendants Wessendorf and Ehlers filed joint and separate answers in which they admitted that plaintiffs were the owners of the land described as located in Saline County; that they were plaintiffs' agents in the exchange of said Saline County land for the stock of hardware, implements and equipment known as the Garden City Hardware Company, owned by J.M. Kauffman and J.B. Mosser, and a farm of one hundred and seventy acres in Cass County, Missouri, owned by J.E. Brasfield; and that they were paid the sum of $1125 by plaintiffs as commission for their services in effecting said exchange, but they denied each and every other allegation in plaintiffs' second amended petition contained. The other defendants filed answer in the nature of a general denial.

The case was tried to a jury, resulting in a verdict for plaintiffs and against all of the defendants in the sum of $10,375. From the judgment rendered thereon all of the defendants except Lot A. Doughty have appealed. Since the appeal was taken A.C. Peuster has died and John Peuster, his administrator, has been substituted as a party respondent.

There was evidence tending to show that plaintiffs put their land in the hands of Wessendorf and Ehlers, real estate agents, upon their representation that they could trade it for a stock of hardware and implements: that on the morning of May 19, 1923, three of the plaintiffs went to Slater where they were joined by Wessendorf and Ehlers, and all five proceeded to Marshall, where they stopped in front of defendant Roberts' office; that Wessendorf said that defendant Burgard, Doughty and Roberts were in on the trade and were going with them to help make the deal; that the three last-named defendants joined the party and all proceeded to Garden City; that Doughty told Ritterbusch that there was a farm of 170 acres which, in addition to the hardware and implements, could be had for plaintiffs' land; that Brasfield and Kauffman had authorized their agents Hoey Clemens to trade their furniture, undertaking stock, tin shop, lots and store, as well as their farm, hardware and implements, for plaintiffs' land, and defendants had knowledge of this fact; that defendants never at any time employed either Burgard, Doughty or Roberts as their agent or authorized them or any one of them to represent them, although from that time on all five of the defendants were present and assisted in practically every step of the negotiations until the final consummation thereof, and at the same time concealed from plaintiffs the fact that the owners of the farm, hardware and implements had authorized the exchange of their furniture, undertaking business, tin shop, lots and stores, as well as the farm, hardware and implements for plaintiffs' land; that they retained and appropriated all of the Garden City people's said property except the farm, hardware and implements, which were delivered to plaintiffs, and finally converted the same into cash, and the proceeds thereof, amounting to $10,400, together with $1500 commission paid Hoey Clemens by the Garden City people, and $1125 commission paid by plaintiffs to Wessendorf and Ehlers, were divided equally between eight parties, to-wit, defendants, and Hoey, Clemens and William Wessendorf.

Respondents contend that the evidence shows that "all the defendants acted in concert; that all assumed to act for plaintiffs in making the trade; that all studiously concealed from plaintiffs facts which plaintiffs were entitled to know at their hands; and that all the defendants participated in the fraudulent concealment, and shared equally in the fruits of the fraud, and all are liable as joint fraudfeasors for the value of the properties thus fraudulently retained and appropriated."

Defendants Roberts, Burgard and Doughty testified that prior to the time the properties were exchanged defendants Wessendorf and Ehlers did not know that it was possible to get more than the hardware and implement stock and the 170-acre farm for plaintiffs' land, and that Brasfield had assured them that the Garden City people didn't care how much they got out of the deal, provided they secured something that suited them. Burgard and Doughty claimed that they were really entitled to all of the excess Garden City property because of Brasfield's statement to them, and because of an alleged option contract which was not produced at the trial, but was said to have been executed pursuant thereto at Slater, Missouri, at Wessendorf's home, whereby the Garden City people agreed to convey to them, or such person as they might designate, all of the property which they were willing to exchange, provided they would procure a conveyance of plaintiffs' land. Burgard and Doughty further claimed that they had employed defendant Roberts to aid them in effecting an exchange of the properties. Appellants insist that under the evidence they are not liable either as plaintiffs' agents or as fraudfeasors. The record before us is quite voluminous and further reference will he made thereto where necessary in ruling upon the errors assigned.

The errors here complained of relate to the giving and refusing of instructions and the admission and exclusion of evidence.

I. Appellants first insist that the court erred in giving plaintiffs' requested instruction number one, which is as follows:

"The court instructs the jury that if you find and believe from the preponderance of the evidence, First, that J.B. Mosser, J.E. Brasfield, and J.M. Kauffman employed Hoey Instruction. Clemens of Garden City, Missouri, to negotiate a sale or exchange of 170 acres of real estate in Cass County, Missouri, a furniture and fixture stock belonging to Brasfield Kauffman, and a hardware and implement business belonging to Kauffman Mosser, and an undertaking business, tin shop and furniture store belonging to Kauffman Brasfield, and second, you find from the evidence that the plaintiffs employed Wessendorf Ehlers as their agents to negotiate a sale or exchange of their real estate in Saline County, Missouri, known as the Brockway Island, third, that you find and believe from the evidence that the said Brasfiled, Mosser Kauffman were willing to, agreed to and did exchange all of their property set out in this instruction to said plaintiffs for their real estate described in evidence, fourth, and you further find and believe from the evidence that the other defendants or any of them, participated in the trade or exchange of said properties on behalf of the plaintiffs, or assisted Wessendorf Ehlers in said exchange, and fifth, if you find and believe from the evidence that said exchange was made, and you further find and believe from the evidence that the defendants or any of them concealed and withheld from the plaintiffs any of the property so agreed to be given and given in said exchange for their said real estate, then all of said defendants participating in the fraud of wrongfully, intentionally and knowingly concealing and withholding and retaining said property, if any, with knowledge that the same in said exchange was to go to the plaintiffs in this cause, then each and every defendant so participating in the retention of said property, if any, are liable to the plaintiffs in damage, in such sum as you find and believe from the evidence was the reasonable market value of said property, if any, on or about May 23, 1923, so withheld and retained from the plaintiffs, and your verdict should be for the plaintiffs, against such defendants, in such sum."

Appellants make seven specifications of error as to this instruction. They say:

1. That "it does not properly declare the law applicable to fraud and deceit but rather assumes fraud on the part of the defendants," citing Lindsay v. Mining Co., 244 Participation. Mo. 438, l.c. 453; Allen Estate Assn. v. Fred Boeke Son. 300 Mo. 575; and Green v. Edmonds, 245 S.W. 378. This instruction specifically required the jury to find from the evidence that Brasfield, Mosser and Kauffman "were willing to, agreed to and did exchange all of their property set out in this instruction, to said plaintiffs for their real estate described in the evidence," that "the other defendants or any of them participated in the trade or exchange of said properties on behalf of the plaintiffs, or assisted Wessendorf Ehlers in said exchange," and that "the defendants or any of them concealed and withheld from the plaintiffs any of the property so agreed to be given and given in said exchange for their said real estate." It permitted a finding against no defendant who did not wrongfully, intentionally and knowingly participate in the fraud of concealing and withholding and retaining said property, if any, with knowledge that the same in said exchange was to go to the plaintiffs, but it did declare, and properly so, that each and every defendant "so participating in the retention of said property, if any, is liable to the plaintiffs, in damage, in such sum as you find and believe from the evidence was the reasonable market value of said property, if any, on or about May 23, 1923, so withheld and retained from the plaintiffs." Said instruction was within the allegations of the petition, and was clearly supported by the evidence.

2. That "if said instruction purports to authorize a recovery for the plaintiffs against the defendants on the ground that the defendants were agents for the plaintiffs and made a secret profit, then the measure of damages is wrong." The Agents. instruction does not undertake to authorize a recovery on the ground that all of the defendants were plaintiffs' agents, but on the ground that they all practiced fraud and deceit in the manner specified upon plaintiffs whether they participated in the exchange in behalf of plaintiffs or merely assisted their duly authorized agents therein. The authorities cited are not in point and the objection is overruled.

3. That "said instruction authorizes a recovery against all of the defendants if they assisted Wessendorf and Ehlers in said exchange regardless of what capacity they were Capacity of working in." It is mainly upon this principle Fraudfeasors. involved in the instruction that appellants and respondents split. We think it was proper to so instruct the jury under the evidence in this case. It was plainly the duty of Wessendorf and Ehlers as plaintiffs' agents to make full disclosure to them if they knew that Brasfield, Kauffman and Mosser were willing to give and were giving the furniture, undertaking stock, tin shop, lots and stores, in addition to the hardware and the one-hundred-and-seventy-acre farm: and if Burgard, Roberts and Doughty aided them in concealing that fact from plaintiffs and shared in converting and appropriating the properties thus concealed from plaintiffs they were liable for the fraud to the same extent as were plaintiffs' agents Wessendorf and Ehlers. The doctrine here applicable is this stated in 2 Mechem on Agency (2 Ed.):

"Sec. 2051. The profits, benefits and advantages resulting from the agency belong to the principal. To secure them to him was the object for which the agency was created, and it is therefore his right, not only as against the agent, but as against third persons who have dealt with the agent as such, to obtain and enjoy them.

"Sec. 2137. . . . But where the third person conspires with the agent to perpetrate a fraud upon the principal, he is undoubtedly liable. So where the third person, by surreptitious dealing with the agent, or by corrupting him or leading him astray from his duty, has obtained the property of the principal, . . . the defrauded principal, if he acts promptly and before the rights of innocent third parties have intervened, is entitled to recover his property, or . . . to have such other adequate relief as a court of equity may be able to render under the circumstances. The principal in such a case may recover damages, or, where the agent could be charged as a trustee, may recover from the third person what by such collusion he has received from the agent."

Footnote on page 1711, quoting from Nathan v. Blakes, Transv. L.R.S.C. 626:

"Clearly it is the law of England, and I think it is also law in this country, that if a third person fraudulently induces an agent to deceive his principal, to the detriment of the latter and to his own benefit, then he is liable for any damages which the principal may suffer."

This objection is also ruled against appellants.

4. "Because said instruction makes the act of each defendant the act of the other defendants without requiring the jury to find that they were all agents for the plaintiffs or that they conspired together, and does not define what fact would constitute a conspiracy or concerted action." This Conspiracy. is but an amplification of the proceeding objection. Before the jury could find defendants or any of them liable in damages to plaintiffs they must under this instruction first find that such defendants participated "in the fraud of wrongfully, intentionally and knowingly concealing and withholding and retaining said property, if any, with knowledge that the same in said exchange was to go to the plaintiffs." It is immaterial whether Roberts, Doughty and Burgard were plaintiffs' authorized agents, or voluntarily attempted to induce plaintiffs to make the exchange, or merely injected themselves into the transaction. The gist of the action is fraud and all defendants who participated therein are liable. In 20 Cyc. 84, it is said:

"All persons who are engaged in the perpetration of a fraud are liable for the damages occasioned thereby. Moreover it is not necessary that there be any privity of contract between the person guilty and the person defrauded." Also, see Barnett v. Ground, 304 Mo. 593.

Again, in 20 Cyc. 95, sec. 2, it is said: "A joint action lies against two or more persons participating in a fraud whereby another is injured, although there was no previous conspiracy." Also, see Hobbs v. Boatright, 195 Mo. 695. Also, in 1 Bigelow on Fraud, page 109, it is said: "In regard to defendants the rule at law is that all persons concerned in fraud, whether by preconcert or conspiracy or not, may be joined."

This objection must also be ruled against appellants.

5. That said instruction improperly commingles the theory of fraud and deceit on the one hand, and the theory that defendants were the agents of plaintiffs on the other. If there Commingling was an improper commingling of two causes of action Causes. in the petition the defect should have been raised by motion, but apparently such was not done. There is no commingling of two causes of action in this instruction. The one cause of action instructed upon is fraud and deceit. Two of the defendants admitted that they were plaintiffs' agents. If they practiced fraud and deceit upon their principals they were liable to respond in damages and all defendants who participated therein were likewise liable to respond in the same manner. The jury were properly so instructed.

6. That "under the pleadings it was admitted that Wessendorf and Ehlers were agents of the plaintiffs and denied that defendants Burgard. Roberts and Doughty were agents, Separate and the instruction does not properly declare the Capacity of facts which the jury must find in order to Defendants. constitute the defendants Burgard, Doughty and Roberts agents of the plaintiffs and liable as such." The instruction sufficiently declares the facts and this objection is overruled.

7. That "the second amended petition pleads fraud and deceit of the defendants and this instruction is at variance with the pleadings and proof in the case." Appellants do not Variance. elaborate on this point and we are unable to detect any substantial variance.

II. Appellants also assign error in the giving of instruction number two for the following reasons: (1) it is in conflict with instruction numbered one; (2) it does not properly All define what is essential and necessary for fraud Instructions. and deceit; (3) it is in conflict with the petition and evidence in the case, "because the petition doesn't plead and the proof doesn't show that any of the defendants were employed by the plaintiffs to effectuate an exchange of their farm to Kauffman, Mosser and Brasfield;" (4) it "assumes that there was property wrongfully and intentionally concealed from the plaintiffs and assumes that said property was intended to be conveyed to the plaintiffs without requiring the jury to find such fact;" (5) it "authorizes a finding against all of the defendants if the jury find that one or more were employed by the plaintiffs as their agents, merely because the others may have assisted in some way in effecting the exchange, without defining what kind of assistance would make them liable;" and (6) "the measure of damages in said instruction is erroneous and wrong." The instruction is as follows:

"The court instructs the jury that if you find from the evidence that the plaintiffs employed one or more of the defendants as their agents to negotiate a trade and exchange of the farm of plaintiffs described in the evidence, for real estate and personal property of J.M. Kauffman, J.B. Mosser and J.E. Brasfield located in Cass County, Missouri, and you further find from the evidence that the defendants so employed, if any, engaged, employed or permitted other of the defendants to assist them in said exchange, and you find from the evidence that all those so participating in negotiating said exchange shared in the proceeds of the property wrongfully and intentionally concealed from the plaintiffs, if any, and which was intended to be conveyed to the plaintiffs, then you are instructed that they are all equally liable for the damage, if any, to the plaintiffs by said fraudulent concealment of said property from the plaintiffs, if any, in such sum as you find and believe from the evidence to be the reasonable market value of the property so withheld by the defendants, if any, belonging to the plaintiffs."

It is apparent at a glance that some of these objections are repetitious, but we do not think that the instruction is open to any of them. Appellants do not indicate and we have been unable to discover wherein it conflicts with instruction number one. Participation in negotiating the exchange of property and sharing in the proceeds of the property fraudulently concealed and withheld from plaintiffs by defendants are things the jury were required to find before they could hold defendants liable, and when read in connection with instruction number one, which correctly defined fraud and deceit, the jury were fully advised as to what was "essential and necessary for fraud and deceit" under the pleadings and proof in this case. The instruction does not conflict with the petition and proof because not only does it appear from the petition and evidence that some of the defendants were employed by plaintiffs to effectuate an exchange of their land to Kauffman. Mosser and Brasfield, but the answer of defendants Wessendorf and Ehlers admits that they were so employed. All instructions must be read together and when this instruction is read with instruction number one it is clear that the jury were required to find as a fact that property was wrongfully and intentionally concealed and that such property was intended to be conveyed to plaintiffs. As we have heretofore indicated the law holds every person liable who participates in a fraud by instigating or aiding another, or who benefits by its proceeds, in whole or in part, and this instruction is not erroneous in failing to define what kind of assistance would make the participating defendants liable. The accepted measure of damages in an action at law where defendants have appropriated property and made it impossible for plaintiffs to recover the property itself, is the reasonable market value of the property so withheld, and it was so stated in this instruction. The objection is overruled.

III. Appellants also say that instruction number three "does not properly declare the law covering the measure of damages in this case." The instruction is as follows:

"The court instructs the jury that if you find from the evidence that the plaintiffs are entitled to recover damages from the defendants, or one or more of them, as defined in other instructions, then your verdict should be for such Measure of sum as you find from the evidence was the reasonable Damages. market value of the property withheld from the plaintiffs, if any, at the time of the closing of said deal and exchange, on or about the 23rd day of May, in the town of Garden City, Missouri, not to exceed the sum of $19,000."

Appellants do not indicate wherein this instruction is deficient. The cited cases. Boyd v. Wahl, 175 Mo. App. 181, and Herron v. Smith, 285 S.W. (Mo. App.) 544, shed no light on the objection raised. We have just approved the use of similar language in instruction number two, and this objection is overruled.

IV. Appellants say that instruction number five is erroneous "because it wholly disregards the testimony of the defendants and is practically a peremptory instruction to find for the plaintiffs, contrary to the law and the evidence in the case, and because it doesn't properly define what it is Peremptory necessary for the jury to find, in order to find Instruction. that the defendants were agents of plaintiffs, and because the same law applicable to agency would not apply equally against the defendants Wessendorf and Ehlers, who by their pleadings admitted they were agents of the plaintiffs, and the defendants Burgard. Doughty and Roberts." The instruction is as follows:

"The court instructs the jury that under the law and evidence in this case, neither the defendant, Lot A. Doughty, nor the defendant, Roy Burgard, had any option authorizing them to claim, receive, possess or retain any of the property belonging to J.E. Brasfield, J.B. Mosser and J.M. Kauffman, or the Garden City Hardware Company, or Brasfield Kauffman, that was intended by them to be included in the exchange of said property to the plaintiffs for the real estate of plaintiffs described in evidence, in Saline County, Missouri, and you are further instructed that neither said defendant, Lot A. Doughty or Roy Burgard, had any right under any contract in evidence, to retain the furniture, fixtures, undertaking goods and equipment, real estate in Garden City, Missouri, or tin shop, described in evidence, and to withhold the same from the plaintiffs [words following in quotation added by the court] — provided the jury further find and believe from the evidence that in the matters in evidence relating to the exchange of properties between plaintiffs and Brasfield, Mosser Kauffman, the said Doughty and Burgard were acting for and in behalf of plaintiffs or in connection with and in assistance of others who were acting in such matters in behalf of plaintiffs.'"

This cannot be condemned as a peremptory instruction because it directs no finding for any one, nor is it contrary to or in disregard of the evidence. It simply told the jury that neither Doughty nor Burgard was authorized by the so-called option which they claim to have received to retain or claim any of the property intended by Brasfield, Mosser and Kauffman to be included in the exchange for plaintiffs' land, or by any other contract in evidence to retain or claim the furniture, fixtures, undertaking goods and equipment, real estate in Garden City, or tin shop, provided they found they were acting for plaintiffs in the exchange of the properties or in connection with and in assistance of others who were acting in such matters in plaintiffs' behalf. This was clearly the law and would apply alike to all defendants who were found to be similarly situated.

V. Appellants say that instruction number seven "is an abstract statement which is not applicable to the facts in this case and does not instruct the jury what facts they must find Applicable in order to charge the defendant or defendants with to Facts. fraud." The instruction is as follows:

"The court instructs the jury that an agent is held to the most perfect faith in the dealings with his principal, and if he acts adversely to his employer in any part of the transaction or omits to disclose any interest which would naturally influence his conduct in dealings with the subject of the employment, it amounts to fraud on the part of the agent."

This was a fair statement of the law and in view of the pleadings and evidence in the case it was not a mere abstraction. Appellants do not state wherein it was prejudicial or could have misled the jury, and we rule that it was not reversible error to give it. [Burkhard v. Rope Co., 217 Mo. 483.]

VI. Appellants say that the court erred in adding to defendants' given instruction number three, because it makes the defendants Wessendorf and Ehlers liable if they Division of participated in the division of such property, Property. regardless of how it may have been acquired by the other defendants. The addition required the jury to find that the receipt of this property was "wrongfully concealed from plaintiffs," that its possession was "wrongfully withheld from plaintiffs," and that in its division "defendants knowingly and wrongfully participated." This was a proper declaration of the law on the facts pleaded and proved, and it was not error to give the instruction.

VII. Appellants also say that the court erred in adding to defendants' given instruction number four, because there was no testimony from which the jury might reasonably infer Agents for that Burgard. Doughty and Roberts were agents for Plaintiffs. plaintiffs, and the part added to said instruction was not justified by the evidence. These three appellants defended on the claim that they actually made the trade in pursuance of an option contract which expressly authorized them to retain the very properties which all the defendants did jointly retain. There were facts in evidence from which the jury might reasonably infer that these three defendants were ostensibly acting for plaintiffs.

VIII. Appellants say the court erred in adding to defendants' given instruction number six. The instruction is as follows:

"The court instructs the jury that, if you find and believe from the evidence that Brasfield and Mosser, acting for themselves and Kauffman, entered into a contract by the terms of which they agreed to turn over to L.A. Doughty, or Option such person as he might designate, all of the Cass Contract. County property mentioned in the pleadings, in consideration for which said L.A. Doughty agreed to convey or caused to be conveyed to said Kauffman, Brasfield and Mosser the Brockway Island in Saline County, Missouri, free from incumbrances and agreed to loan or cause to be loaned to said parties $5000 on said island, and that said Doughty and his associates, Burgard and Roberts, did cause to be conveyed to said parties, said Brockway Island, free from incumbrance, and caused to be loaned to said parties $5000 thereon, then whatever part of the Cass County properties which said Doughty and his associates did not use in procuring said deed and loan to the Brockway Island, became and was the property of the said L.A. Doughty and his associates and did not belong to the plaintiffs herein, and the plaintiffs are not entitled to recover from any of the defendants herein for any part thereof [following words in quotation added by the court], `provided the jury further find and believe from all the evidence herein that neither said Doughty or any of his associates were at such time, or times, acting for or in behalf of plaintiffs or in connection with others who were acting for the plaintiffs.'"

It would have been improper to have given this instruction as requested by defendants, because it would have deprived plaintiffs of their theory that defendants aided in the perpetration and participated in the fruits of the alleged fraud. It was properly amended by the court.

IX. Appellants insist that the court erred in refusing to give their requested instruction number two because it properly declared the law applicable to defendants Wessendorf and Ehlers. This instruction told the jury that if Wessendorf Division and Ehlers had no agreement or understanding prior of Agents' to the exchange of the properties to divide their Commission. commission with any other agents then what they did with their commission after the consummation of the exchange "is wholly immaterial and your verdict must be for defendants Wessendorf and Ehlers." What they did with their commissions was a material fact bearing on the issues. Proof that these defendants promptly divided their commissions with the other defendants on the day they were paid tended to show a prior agreement and concerted action among all the defendants to obtain possession of the retained properties, sell them quickly and divide the proceeds equally among the eight. Furthermore, if this instruction had been given the jury could not have returned a verdict for the plaintiffs even though they found from the evidence that those two defendants appropriated the furniture, undertaker's stock, tin shop, fixtures, lots and stores, and each had participated in the proceeds of the sale thereof in addition to receiving his part of their commission of $1125. The instruction was properly refused.

X. Appellants say the court erred in refusing to give defendants' requested instruction number four, because it properly declared the law applicable to an action for fraud and deceit. It is as follows:

"The court instructs the jury, that the burden of proof in this case is upon the plaintiffs to show by a preponderance of the credible testimony in the case, that the Omitting defendants, Wessendorf and Ehlers, fraudulently Concealment. stated to the plaintiffs that no property could be procured for the plaintiffs for the exchange of properties other than the hardware and implement stock and the 170-acre farm in Cass County, Missouri, and that at the time of said fraudulent representations the said defendants knew that said representations were false and made said representations for the purpose of deceiving the plaintiffs and inducing them to act thereunder, and that the plaintiffs, relying upon said representations, and being ignorant of the falsity thereof, were induced to convey the said Brockway Island to the said Brasfield, Kauffman and Mosser, and that the said plaintiffs were injured and damaged thereby, and unless the plaintiffs have so proven their case by the preponderance of the credible testimony in the case, then your verdict must be for the defendants, Wessendorf and Ehlers."

This instruction entirely omitted any reference to concealment which was the active element of fraud shown by the evidence. The instruction was properly refused.

XI. Appellants say that the court erred in refusing to give instruction number five requested by defendants Burgard, Doughty and Roberts, because if said defendants were not Joint the agents of plaintiffs there was no liability Fraudfeasors. under the law and the evidence in this case. The instruction is as follows:

"The court instructs the jury, that, if you find and believe from the evidence, the defendants, Burgard, Doughty and Roberts, were not the agents nor the representatives of the plaintiffs, either directly or indirectly, prior to the consummation of the deal, whereby the plaintiffs exchanged the Brockway Island for the hardware and implement stock and the 170-acre farm in Cass County, Missouri, then your verdict must be for the defendants, Burgard. Doughty and Roberts."

Whether or not these defendants were plaintiffs' agents, if they knowingly and wrongfully seized and retained property that belonged to plaintiffs they were guilty of fraud, and this instruction was properly refused.

XII. Appellants also say that the court erred in refusing to give instruction number seven requested by Ignoring defendants Burgard, Doughty and Roberts, because Concealment. said instruction correctly declares the law with respect to said defendants applicable in an action for fraud and deceit. The instruction is as follows:

"The court instructs the jury that the burden of proof in this case is upon the plaintiffs to show by a preponderance of the credible testimony in the case, that the defendants, Burgard, Doughty and Roberts, fraudulently stated to the plaintiffs that no property could be procured for the plaintiffs for the exchange of properties other than the hardware and implements and the 170-acre farm in Cass County, Missouri, and that, at the time of said fraudulent representations, the said defendants knew that said representations were false and made said representations for the purpose of deceiving the plaintiffs and inducing them to act thereunder and that the plaintiffs, relying upon said representations, and being ignorant of the falsity thereof, were induced to convey the said Brockway Island to the said Brasfield, Kauffman and Mosser, and that the said plaintiffs were injured and damaged thereby, and unless the plaintiffs have so proven their case by a preponderance of the credible testimony in the case, then your verdict must be for the defendants, Burgard, Doughty and Roberts."

This instruction was properly refused and with more reason than we have assigned for refusal to give a similar instruction asked by defendants Wessendorf and Ehlers. Not only did it ignore the fraudulent concealment pleaded and evidence tending to prove the same, but it would not have permitted plaintiffs to recover even if it had been shown that Wessendorf and Ehlers actually made such fraudulent statement.

XIII. Appellants insist that the court erred in admitting incompetent, irrelevant and prejudicial evidence as follows:

1. That plaintiffs' witnesses were permitted to testify that defendants tried to trade a farm in Miller County, Evidence Missouri, for plaintiffs' land, and that they tried to Admitted. induce plaintiffs to trade their land for Mrs. Meng's farm south of Marshall, all for the purpose of proving that defendants in this case were agents for plaintiffs in trading their land for the Garden City property. Prior This testimony was not offered for the purpose of Negotiations. proving agency, but to show, as was stated by plaintiffs' counsel when it was first offered, that defendants had previously been negotiating with plaintiffs to sell their land. Defendants themselves testified to the same facts. The evidence was not prejudicial and the court did not err in admitting it.

2. That plaintiffs' witnesses were permitted "to testify as to misrepresentations about the quality of the soil of the farm in Cass County and to the invoice price or Misrepresentations. value of the hardware stock, when no such issue was within pleadings." These conversations were competent for the purpose offered, namely, to show all the circumstances and the part defendants took in the entire transaction.

3. That plaintiff, Ritterbusch, was permitted "to testify that the contract which he signed wasn't read over to him when there was no allegation of fraud or deceit practiced in procuring his signature and no claim that the contract didn't correctly state the agreement." It appeared in evidence that certain Reading parties signed this contract in Garden City on a Contract. certain day and others signed it later at another place, and certain changes were made therein between the first and second signing. Under these circumstances it would have been proper for the witness to have stated whether or not the contract was read over to him before he signed it. However, he replied that he was not positive about that. Obviously the evidence admitted was harmless.

4. That plaintiffs' witnesses were permitted "to testify that subsequent to the closing of the deal for the exchange of properties, the various real estate agents pooled their commissions and interests and divided the same among themselves, without requiring the plaintiffs to prove or show Pooling that such an agreement existed prior to the Commissions consummation of the contract for the exchange of and Proceeds. properties." This evidence was properly admitted for reasons we have already stated in connection with the court's refusal of defendants' requested instruction number two.

5. That the court "permitted plaintiffs' witnesses to testify as to what was in plaintiffs' contract marked Exhibit `A,' when they signed it the first time, and as to what wasn't Terms of in there, and as to what was later put in and as to Contract. whether or not they read it when they signed it or whether or not someone else read it to them, and there was no issue or controversy about any of those matters and not even any claim that the contract wasn't correctly and properly written." For the reasons above stated in assignment number three this evidence was competent.

6. That plaintiffs' witnesses were permitted "to testify as to conversations between Hoey and Clemens and Brasfield, Kauffman and Mosser. This was hearsay testimony." This criticism Hearsay. is based in part upon the following objection made by defendants' counsel on the examination of witness Kauffman: "We object to what the real estate men said."

Such an objection is too general. Counsel, in behalf of defendant Wessendorf, also objected as hearsay to any conversation between witness Brasfield and Mr. Hoey, while the latter was negotiating the exchange of properties, had outside the presence and hearing of Wessendorf. The witness was permitted to testify that Hoey "said he had a contract with these fellows whereby we agreed to go over and look within a certain number of days; he said, `Is that all right'? and I said, `Yes, we will go and look,' and we did go and look." Defendants were not prejudiced thereby.

7. That the court permitted "plaintiffs' witnesses, Brasfield, Kauffman and Mosser, to testify as to what Garden City property was exchanged for, to-wit, the Brockway Island, when Property Mr. Hoey negotiated the transaction for them. This Exchanged. was hearsay testimony." The only objections cited are those made on the examination of Mr. Kauffman, who was permitted to testify not to conversations had but as to the property traded by him and the property turned over to the agents. This testimony was properly admitted.

8. That "the court permitted statements made by Burgard outside of the presence of other witnesses, for the purpose of binding all of the defendants." An examination of the record Statements discloses that the court's ruling was quite to the by One contrary. The court several times indicated that the Defendant. statements said to have been made by Burgard would not go against any of the defendants who were not present at the time they were made.

9. That "the court permitted plaintiffs' witnesses, Kauffman and Mosser, to testify that they intended to convey certain personal property mentioned in Plaintiffs' Exhibit Supplying `E' to the owners of the Brockway Island, when said Name of bill of sale was made out in blank and delivered to Transferee. the defendant Burgard." The only objection cited in point is one made on the examination of witness Kauffman. He testified that he did not know that the name of the grantee was left blank in the bill of sale. He had already testified as to the property put up and with whom the trade was being made, and the court properly permitted him to state to whom he was intending to transfer the property by this bill of sale.

10. That "the court permitted plaintiffs' witness, Brasfield, to testify as to the contents of a contract which they claimed was made between Brasfield, Mosser and Kauffman on the one hand and Wessendorf, as agent for the plaintiffs, on the other hand, as evidence against the defendants, Burgard, Doughty, Roberts and Ehlers." In view of the fact that there was evidence that all defendants were present at the time and thereafter assisted in practically every step leading up to an exchange of the properties the court properly admitted this evidence.

XIV. Appellants finally say that the court erred in Evidence excluding material, competent and relevant testimony Excluded. on behalf of defendants, as follows:

1. That one of defendants' attorneys was not permitted "to testify that one of the plaintiffs, Mr. Leimkeuhler, told him that the others forced him into bringing this Forced to lawsuit." This plaintiff was still a party of record Bring Suit. to the proceeding, there was no showing that he was mentally incompetent and the inquiry was clearly improper.

2. That defendant Roberts was not permitted "to testify as to the contents of a contract which he wrote at Wessendorf's house, after the plaintiffs had been permitted to testify as Contents to the coutents of the document." The court might of Written well have refused to permit this witness to testify Contract. as to the contents of the alleged option contract, because he said that it was lying on the table in Wessendorf's house when he last saw it, and defendants made no effort to produce it at the trial. However, the court finally permitted him to state its contents, and there is no basis for appellants' complaint.

3. That defendants were not permitted "to prove by Mr. Roberts, for the purpose of impeaching plaintiffs' witness Brasfield, that in a conversation at Wessendorf's house Brasfield testified that the optional contract written there was merely Impeachment. reducing a previous oral agreement to writing." An examination of the record discloses that the court correctly ruled that no foundation had been laid for the attempted impeachment, and hence the evidence offered was properly refused.

XV. In separate brief and argument filed in behalf of defendant E.P. Roberts it is contended that unless it was shown that Roberts was the agent of plaintiffs or that he made Participant. fraudulent representations that misled them his demurrer to the evidence should have been sustained. As we have already observed, this was an action for fraud and deceit and it was not necessary for plaintiffs to prove that each of the defendants was their authorized agent, or that they were deceived by fraudulent representations made by each. The active element of fraud in the case consisted of a failure to disclose all of the property that the Garden City people were offering to exchange for plaintiffs' land, and a withholding and conversion of a part thereof by defendants to their own use. Not only did Roberts have a part in practically every step leading up to the exchange, but there was substantial evidence that he was an active knowing participant in the concealment, retention and conversion of the property wrongfully withheld from plaintiffs. His wife was in the furniture store, he went down to Garden City the first week after the trade was made, he and his wife were in and out of the store, he received from George Wessendorf a check for $140.60, being one-eighth of the commission paid Wessendorf and Ehlers by plaintiffs, he also received $750 from Hoey and Brasfield, being one-eight of the $6,000 paid for the furniture stock and stores, and Burgard testified without contradiction that out of the commissions and proceeds pooled Roberts got the same as each of the other seven participants.

Counsel for Roberts also criticise plaintiffs' given instructions one, two and three, but the criticisms are sufficiently met in our above analysis and discussion of these instructions.

In order to cover appellants' somewhat discursive presentation of the errors assigned we have extended this opinion beyond usual bounds. Having found no reversible error the judgment is affirmed.

All concur, except Frank, J., not sitting.