Greene v. Yost

Ellison, J.

— The following petition gives a correct and plain statement of this action :

“ Plaintiff William Grreene for his amended petition against the defendant Charles C. Yost, states:
“That heretofore in the month of December, 1886, the defendant and one W. S. Carey with Lewis M. Berkley and Frank Ingram were the owners and holders of an equitable interest and estate in certain land in Jackson county, Missouri, namely :
“The northeast quarter of the northwest quarter of section 27, in township 49, of range 33, by virtue and reason of a certain contract m writing for the conveyance of said land made by George W. Warder with and in the names of Yost, Berkley, and Ingram for the benefit of themselves and said Carey.
“ That said defendant Yost owned an undivided one-fourth of said interest and said W. S. Carey owned an undivided one-fourth thereof, also :
*650“That afterwards on or about the--day of December, 1886, the defendant herein came to plaintiff at Kansas City, Missouri, and stated to him that he, the defendant, had authority as real-estate broker and agent, which plaintiff alleges was his business at said time, to sell said interest of Carey in said land and contract of purchase for one thousand dollars and asked and advised plaintiff to purchase the same and become part owner of said land with defendant, assuming'the obligations of Carey under said contract.
“ That plaintiff was then sick and unable to leave his house and relied upon the statements of the defendant.
“ That he then informed defendant and agreed with him as Carey’s agent that he would pay said sum of one thousand dollars for his, said Carey’s, interest.
“That defendant then left and went away ostensibly for the purpose of informing said Carey of plaintiff’s desire and agreement to purchase said interest in said land, which agreement plaintiff alleges would have been complied with by said Carey.
“But that, intending to deceive and defraud the plaintiff, the defendant went to said Carey, and, without informing him of plaintiff’s agreement to purchase said interest, he, the defendant, purchased the same for himself at a total cost and consideration including what he afterwards paid out on account thereof, of not more than one thousand dollars, all of which was unknown to plaintiff until after the occurrence of the facts hereinafter stated.
“ That afterwards the defendant came back to the plaintiff and falsely represented to him, intending to deceive him, that said Carey would not sell his said interest for less than fifteen hundred dollars.
“ That plaintiff relying on said false statements, and being ignorant of the contrary thereof, decided and *651agreed to pay said sum for said interest, and, afterwards, being still uninformed, as aforesaid, on the thirteenth day of January, 1887, at Kansas City, Missouri, gave to defendant said sum of fifteen hundred dollars to pay the same for plaintiff to said Carey ; and that defendant received the same with that understanding knowing that plaintiff was ignorant of the falsity of his representations as aforesaid.
“But that notwithstanding his said statements he purchased said interest for himself from Carey for one thousand dollars, or less, as aforesaid and had the land transferred directly from said Warder to plaintiff for the purpose of deceiving him (whereof he was uninformed as aforesaid), and appropriated the remaining five hundred dollars of the fifteen hundred given him by plaintiff as above stated to his own use and still retains the same, although often requested by plaintiff to return' the same to him.
“ Wherefore plaintiff was damaged in the sum of five hundred dollars for which and for costs he asks judgment.”

The trial was had without a jury, and, the finding being for defendant, plaintiff appeals.

There is no objection urged as to declarations of law and the only complaint made is as to the finding of the court under the evidence. We have examined the evidence and find that it conflicts as to the points material for plaintiff to maintain his case. The reasons need not be again stated, nor the authorities cited, to sustain the proposition so often asserted, that we will not weigh the evidence given at the trial of a cause.

The judgment is affirmed.

All concur.