Asher v. Jensen

• Decision Date: 10 October 1919
• Citation: 175 N.W. 365,43 N.D. 355
• Parties: ASHER et al. v. JENSEN.
• Court: North Dakota Supreme Court

43 N.D. 355

175 N.W. 365

ASHER et al.

v.JENSEN.

Supreme Court of North Dakota.

Oct. 10, 1919.

Syllabus by the Court.

In a purchaser's action to rescind a contract for the sale of land upon the ground of fraudulent concealment and misrepresentation by the vendor, where it appears that the purchaser had full opportunity to and did personally examine the land involved, and the record discloses no concealment and no positive misrepresentations of fact, it is held that the rule of caveat emptor applies.

Appeal from District Court, Stark County; Crawford, Judge.

Action by Ernest A. Asher and others against N. Christ Jensen. From a judgment of dismissal, plaintiffs appeal. Affirmed.C. H. Starke, of Dickinson, for appellants.

J. P. Cain, of Dickinson, for respondent.

BIRDZELL, J.

This is an appeal from a judgment of dismissal in a purchaser's action to rescind a contract for the purchase of a half section of land in Montana. The alleged grounds of relief are fraudulent concealment and misrepresentations made by the vender. The plaintiff Burl Asher and the defendant had been acquainted for some time prior to the making of the contract, both living in Dickinson. In the spring of 1917, while on an automobile trip through the southwestern part of this state, these parties discussed prospectively the sale and purchase of the land in question. In September of the same year William Asher, of Livingston, Mont., a brother of Burl Asher, came to Dickinson, and the two, together with Jensen, the defendant, went by automobile to Culbertson, Mont., to look over the land with a view to its purchase, arriving there on the evening of September 4th. On the following day the three went to look over the land. The farm was occupied by a tenant by the name of Krueger, who had lived there about five years. It appears that prior to their arrival at the farm Jensen had warned the Ashers with respect to any statements the Kruegers might make concerning the farm, as they would be interested in any proposition looking toward the termination of their tenancy. The parties spent considerable time looking over the land on the first day, and spent the night with a relative of the defendant a few miles distant, returning for further inspection the following day. The Ashers had been raised upon a farm in Indiana, and desired to purchase this land to enable another brother, Ernest Asher, to secure a larger farm than he was then occupying in Indiana. A contract was entered into, dated September 7th, whereby the Ashers agreed to purchase the land in question for $6,000, $2,000 to be cash and $4,000 on the 1st of January, 1918. Some town lots in Billings, Mont., were accepted as part of the purchase price. In the spring of 1918 Ernest Asher came out from Indiana with his family, taking up his residence on the land. He soon complained that the land was full of gravel and that the well went dry, whereupon William Asher again went to Culbertson and looked at the land. In May William requested a rescission of the contract, demanding a return of the money payment and of the lots given in exchange. The alleged fraudulent representations relate to the quantity of water that the well would supply and to the character of the subsoil.

There is a sharp conflict in the testimony with reference to what statements were made concerning the well; the Ashers contending that the defendant stated that there were 40 feet of water in the well, that there was good water on the place and plenty of it, and that the well gives plenty of...