Belka v. Allen

• Decision Date: 09 October 1909
• Citation: 82 Vt. 456,74 A. 91
• Court: Vermont Supreme Court
• Parties: BELKA et ux. v. ALLEN.

74 A. 91

82 Vt. 456

BELKA et ux.

v. ALLEN.

Supreme Court of Vermont. Chittenden.

Oct. 9, 1909.

Exceptions from Chittenden County Court; E. L. Waterman, Judge.

Action by Albert W. Belka and wife against Martin F. Allen. Verdict and judgment for defendant, and. plaintiffs excepted. Reversed and remanded.

Argued before HOWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

Martin S. Vilas and Darling & Mower, for plaintiffs. Frank L. Fish and Brown & Hopkins, for defendant.

POWERS, J. This is an action on the case for deceit in the sale of a farm situated in Bristol and Starksboro, known as the "Eddy farm." In the winter of 1900, the plaintiffs were living on a farm in Ferrisburgh which they had bought of the defendant, and wished to buy a larger one. The defendant, as administrator of his father's estate, had the control and sale of the Eddy farm, and negotiations were opened for its purchase by the plaintiffs. Albert Belka visited the farm with the defendant, and a little later went there with his wife, and still later consummated a trade for the place with the defendant at the price of $4,000, which included a few head of stock and some farming tools. The plaintiffs paid down a part of the purchase price, and gave a mortgage on the place for the balance, $3,375. This mortgage was assigned to F. H. Farrington, and, the condition thereof having been broken, foreclosure proceedings were begun against the plaintiffs in the fall of 1901, and a decree passed thereunder with redemption limited to some time in the spring of 1902. The farm proved to be unproductive, and the plaintiffs were unable to redeem the place, and left it at the expiration of the equity. At the. trial the plaintiffs relied upon and sought to prove the following representations alleged to be false and fraudulent: (1) That the farm kept regularly 25 cows, several head of young cattle, and a team. (2) That hay for the support of said stock had never been bought save during that season, and that that was the first time the farm was ever short of hay, which shortage was due to the mismanagement of the tenant then occupying the place. (3) That the sugar place produced an average yield of from 2,000 to 3,000 pounds per year. (4) That there was wood and timber enough on the farm to pay for it at the price asked. (5) That the farm raised between 300 and 400 bushels of potatoes per acre as an average crop. (6) That a certain lane leading to the pasture on the farm was a part of the farm. (7) That the six cows which went with the farm were No. 1 cows. (8) That the farm was a very good and productive one. (9) That the south line of the farm lay in a certain location then pointed out.

1. The plaintiffs called the defendant as their first witness. They asked him. without objection, if he did not, at a time and place named, and after the Belkas had defaulted payment, tell Mr. Belka that, if he would remain on the place, he (the witness) would sell the farm to him under a new trade at $2,000, and treat the $625 already paid as a payment on the new purchase. The witness denied that he made such a proposition. Later on, when Albert Belka was on the stand, his counsel offered to show by him that the defendant did in fact make him the proposition above set forth at the time and place named. This offer was put upon the ground that it tended to establish the true value of the farm, that it was an implied admission of false representations in the original trade, and that it tended to impeach the defendant by contradicting his testimony regarding the matter. It was objected to on the ground that it was too remote to be an index of value, that conditions had changed, that the personal property had disappeared, and that the plaintiffs could not contradict the defendant on this point; it being an immaterial matter. If a new sale of the farm had been consummated on the terms embodied in this proposition, it would have been legitimate evidence of the value of the property at that time. Hildreth v. Fitts, 53 Vt. 684; Crampton v. Marble Co., 60 Vt. 291, 15 Atl. 153, 1 L. R. A. 120; Rawson v. Prior, 57 Vt. 612. And, however it might have been had the proposed evidence been of an unaccepted offer made by a third party, the defendant's own offer, indicating as it did his estimate of the value of the farm, was admissible against him as an admission, provided the question of value was material and the evidence offered did not relate to a time too remote to be of probative value. 16 Cyc. 1136. And the question of value was material, for the measure of damages would be, if recovery was had, the difference between the value of the land as it was and as it would have been had the representations been true. Shanks v. Whitney, 66 Vt. 405, 29 Atl. 367.

There is another ground on which the true value of the property at the time of the original sale is important. Gross inadequacy of price is a badge of fraud. Brown v. Sawyer, 1 Aik. 130. That is to say, it is an indication that the buyer has overreached the seller—a suspicious circumstance, which may, when considered in connection with the other facts and circumstances in the case, warrant the inference of fraud. Kerr, Fraud, 186, and note; Deepwater Council v. Renick, 59 W. Va. 343, 53 S. E. 552; Douthitt v. Applegate, 33 Kan. 395, 6 Pac. 575, 52 Am. Rep. 533. The importance to be attached to it in a given case is, of course, for the trier, and its effect upon the result necessarily depends largely upon the attending facts and circumstances. Conversely, gross exaggeration of price is a badge of fraud; an indication that the seller has overreached the buyer; a circumstance calculated to arouse a suspicion of fraud, and is admissible in evidence as such. The proposed evidence tended to show that the defendant offered to resell the farm to the plaintiffs for one-half the former price. This, if true, was a circumstance which the jury had a right to consider in connection with the other evidence on the main question.

But it is insisted that the evidence was top remote. It related to a time something like two years after the original sale of the farm. Ordinarily the question of remoteness is for the trial court, and not reviewable. State v. Doherty, 72 Vt. 381, 48 Atl. 658, 82 Am. St Rep. 951; Smith v. Ry. Co., 80 Vt. 208, 67 Atl. 535. But here the ruling was made expressly as a matter of law, so it is review-able. We do not think the evidence offered was too remote. It is true, as urged, that the conditions had changed somewhat, and some of the personal property had disappeared; but there is not shown to have been, and in the nature of things there could not have been, such a material change in the value of the farm in the two years as to affect appreciably the probative value of the evidence offered. It could all have been made plain to...