Appleby v. Kurtz

• Decision Date: 20 June 1931
• Docket Number: No. 40663.,40663.
• Citation: 237 N.W. 312,212 Iowa 657
• Parties: APPLEBY v. KURTZ ET AL.
• Court: Iowa Supreme Court

212 Iowa 657

237 N.W. 312

APPLEBY

v.KURTZ ET AL.

No. 40663.

Supreme Court of Iowa.

June 20, 1931.

Appeal from District Court, Wapello County; R. W. Smith, Judge.

Defendants appeal from a decree in an action to recover upon a promissory note and to foreclose mortgage given to secure it.

Affirmed.

W. W. Rankin, of Ottumwa, for appellants.

Ralph W. Burt, of Ottumwa, for appellee.

MORLING, J.

On March 15, 1929, plaintiff and defendant N. F. Kurtz made a contract for the sale by plaintiff to Kurtz of a business property for $2,850, of which $750 was to be paid down and the balance in monthly payments beginning May 1, 1929. For the $750 defendant gave to plaintiff a promissory note secured by mortgage upon other property. This suit is to recover upon the $750 note and to foreclose the mortgage. Defendants plead fraud and allege that they have been damaged to the extent of the payments made on the property, including the $750 and interest and in the amount of their moving expenses. They ask that the note be canceled and that they have judgment for $115 and costs.

[1] The property sold is a business building, which was stated in oral argument to have been the middle of three sections of a building, the exterior walls of which were brick. Defendants' testimony is that plaintiff, as an inducement to the making of the contract, stated: “This is a number one brick building a nice front, glass and brick and a number one good roof. * * * When I found out that the building was not brick as represented I made no further payments on the contract. * * * I had a conversation with Mr. Appleby and this conversation I think was about May 20, probably a couple of weeks after I had made this $15 payment which was on May 4th. * * * Mr. Appleby said, he needed some money and he came to see if I could pay some money. I said, ‘No, I would not make any more payments until he made the building as he represented.’ I said you represented the building to be brick and it is not so. * * * He said he thought it was. * * * I showed him a place in the kitchen where there was plastering off and he said he thought it was brick. I told him in that conversation that when he made this right I would pay him every cent of it. He did not make it right * * * I would not have bought the building at all if I had known the side walls were not brick. * * * I have been a mechanic for the last 40 years, not only a carpenter but I can perform the work from the ground up.” Plaintiff denies making the representations and denies that defendant complained to him that the side walls were not brick. He testifies that at the time of the trial he had owned the building for about four years, did not inspect it to see how it was built, and did not know the composition of the side walls or that the building is not a solid brick building. Defendants do not claim that plaintiff represented that he had knowledge of the composition of the walls, and there is no evidence that he did know, unless it be the circumstance that he had leased the...