Welch v. Reeves
| Decision Date | 14 August 1942 |
| Docket Number | 31450. |
| Citation | 5 N.W.2d 275,142 Neb. 171 |
| Parties | WELCH et al. v. REEVES et al. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. "It is a general rule of law that, in order to obtain redress or relief from the injurious consequences of deceit it is necessary for the complaining party to prove that his adversary has made a false representation of material facts that the complaining party was ignorant of its falsity, and believed it to be true; that it was made with intent that it should be acted upon; and that it was acted upon by the complaining party to his damage." Omaha Electric Light & Power Co. v. Union Fuel Co., 88 Neb. 423, 129 N.W 989.
2. "In cases where there has not been a rescission, the remedy is damages for the fraud; the burden in such cases is on the person alleging fraud to prove both the fraud and the amount of his damages, and the measure thereof is the difference between the article or thing if it had been as represented and its actual value." Rankin v. Bigger, 128 Neb. 800, 260 N.W. 202.
3. When a certain theory as to the measure of damages is relied upon by the parties in the trial court as the proper one, it will be adhered to on appeal whether it is correct or not.
4. Here plaintiffs, did not plead interest as an element of their damages; the trial court did not include interest as an element of damages in his instructions to the jury; the plaintiffs made no objection to the instructions by motion for a new trial and have not cross-appealed on that matter to this court. Under such circumstances this court cannot consider interest as an element of damages in determining the correctness of a remittitur order.
A. A. Rezac, of Omaha, for appellants.
Arthur C. Pancoast, of Omaha, for appellees.
Heard before SIMMONS, C. J., ROSE, EBERLY, PAINE, CARTER, and YEAGER, JJ., and ELLIS, District Judge.
In this action plaintiffs sought to recover damages based on misrepresentations as to the construction of a house which plaintiffs purchased from defendants. Defendants appeal from a judgment against them.
The plaintiffs in their amended petition alleged that the defendants were the owners of the property consisting of a parcel of ground and a brick veneer house with finished attic; that the plaintiffs negotiated for the purchase of the property between October 6, 1940, and the date of the purchase on November 19, 1940; that they paid $9,000 therefor; that the defendants as an inducement to the plaintiffs to purchase the property represented (1) that the house was entirely and completely insulated including ceiling and side walls; (2) that the house was completely weather stripped; (3) that the floors in the downstairs rooms were in first-class condition; (4) that the joists under the first floor were 12-inch joists of select lumber and in first-class condition; (5) that the heating plant was adequate to heat the whole house at a cost of about $100 a year; that each of said representations was false and made as a positive statement of known facts; that the falsity of the representations was not discovered until after the plaintiffs purchased and entered into possession; that they were representations of material facts which were not apparent but concealed; that plaintiffs believed said representations to be true, relied thereon and purchased the property, and would not have purchased the property had they known its true condition; that plaintiffs suffered damages as follows: $590 necessarily expended in order to insulate said house, $107 which it will be necessary to expend for weather stripping of doors and windows, $300 to refinish and make the floors as represented by the defendants, $35 for repairs to heating plant, and $1,000 for replacing joists and subfloors, which had been damaged as a result of a fire in the basement of the premises and which damage had been concealed by a permanent ceiling placed over the same; "that the total cost of putting said property in the condition it was represented to be is the sum of $2,032" for which amount plaintiffs prayed judgment.
Defendants by answer admitted the ownership and sale of the premises to the plaintiffs. By specific reference defendants denied each allegation of plaintiffs' petition, denied false statements or representations and denied concealing any conditions or latent defects in the property; denied specifically each allegation of specific damage or "any other sum" and finally denied generally.
The case went to trial and at the conclusion the court submitted to the jury the contentions of the parties as to two elements of damage claimed, to wit, damage because the house was not insulated as represented and because of the burned and defective condition of the floor joists.
As to the measure of damages the court instructed the jury: "If you find for the plaintiffs the measure of their recovery will be such sum as will fairly and reasonably compensate them for any loss they have suffered on account of false representations being made to them by the defendants, or either of them, concerning insulation of the house or the condition of the joists under the floor of the first story." The jury returned a verdict for $1,500. Upon motion for a new trial, the court required a remittitur of $200, which the plaintiffs made, and the motion was overruled.
Plaintiffs do not cross-appeal as to the refusal of the trial court to submit the rejected items to the jury. Accordingly the evidence will be stated only as to the two items submitted to the jury by the trial court.
Plaintiffs offered evidence that when they inspected the basement prior to purchase they found the ceiling all covered, and that Mr. Welch said to Mr. Reeves, "I would like to see the joists *** what those joists are, and what the condition of them is," and that Mr. Reeves replied they had put on the covering to keep the dirt from going up from the basement and that "they were twelve-inch joists of select lumber *** all in very good condition"; that after they had gone into possession they had occasion, in doing some wiring, to remove a section of the basement ceiling, and found the original floor joists badly charred; that new joists had been set beside the old and nailed to them; that they were 2 inch by 10 inch and not 2 inch by 12 inch material; that the subfloor was badly charred and in some places completely burned away; that the subfloor was not nailed to the new joists and that there was a space between the top of the new joists and the charred floor; that because of the ceiling covering this condition could not be seen when they inspected the house; that a contractor inspected the property and estimated the costs of putting the joists and subfloor in proper condition and that the estimated cost was $758. This fire had occurred before the defendants purchased the house and the repairs had been made by the former owner.
About the insulation, Mr. Welch testified that Mrs. Reeves told him that the ceiling of the attic was all insulated; that he looked into one of the storage closets off the second floor room and noticed "a blanket insulation" between the second floor joists; that there was no way to see whether the side walls were...
To continue reading
Request your trial