Bumpas v. Stein

• Decision Date: 01 October 1910
• Citation: 18 Idaho 578,111 P. 127
• Parties: LEWIS M. BUMPAS, Appellant, v. EDWARD STEIN and J. F. ULMER, Respondents
• Court: Idaho Supreme Court

111 P. 127

18 Idaho 578

LEWIS M. BUMPAS, Appellant, v. EDWARD STEIN and J. F. ULMER, Respondents

Supreme Court of Idaho

October 1, 1910

REAL ESTATE-SALE OF-FALSE AND FRAUDULENT REPRESENTATIONS-DAMAGES-NONSUIT.

(Syllabus by the court.)

1. Held, that the evidence is not sufficient to show that the respondents knowingly and intentionally misrepresented the area of land contained in block 29, and for that reason the court did not err in sustaining the motion for a nonsuit as to the first cause of action.

2. Held, that plaintiff's evidence made a prima facie case under the allegations of the second cause of action and that the court erred in granting a nonsuit therein.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Fremont Wood, Judge.

Action to recover damages on sale of real estate. Judgment for defendants. Reversed.

Judgment reversed and a new trial granted. Costs of appeal awarded to appellant.

Bogart & Reddoch, for Appellant.

When a positive assurance of an area of a parcel of land is made by the vendor to the vendee, with the design of making the vendee believe it, that assurance is very material, and equivalent to an assurance of measurement. (Starkweather v. Benjamin, 32 Mich. 305.)

The plat represented block 29 as containing 6.6 acres, and respondent Stein represented that the plat was correct. The plat had been made by a competent engineer, and under the evidence in the first cause of action it was a question for the jury, under proper instructions, to determine whether or not the representations were such as to deceive a man of ordinary caution and prudence, under similar circumstances. (Watson v. Molden, 10 Idaho 570, 79 P. 503; Sharp v. Ponce, 74 Me. 470; Brady v. Finn, 162 Mass. 260, 38 N.E. 506; Holst v. Stewart, 161 Mass. 516, 42 Am. St. 442, 37 N.E. 755; Jackson v. Collins 39 Mich. 557.)

Appellant had a right to rely upon the stakes as indicating the true line of blocks 24 and 29. "When monuments can be identified, there is a conclusive presumption that the lines are where they indicate." (2 Ency. of Evidence, 711; Root v. Cincinnati, 87 Ia. 202, 54 N.W. 206; Whitehead v. Atchison, 136 Mo. 485, 37 S.W. 928; McKinney v. Doane, 155 Mo. 287, 56 S.W. 304.)

William B. Davidson, Harry Keyser, and Milton G. Cage, for Respondents.

To constitute actionable fraud it must appear (1) that defendant made a material representation; (2) that it was false; (3) that when made he knew that it was false, or made it recklessly, without any knowledge of its truth and as a positive assertion; (4) that he made it with the intention that it should be acted upon by plaintiff; (5) that plaintiff acted in reliance upon it; and (6) that he thereby suffered injury. (20 Cyc. 13, 24-27, and cases cited in note; Kountze v. Kennedy, 147 N.Y. 124, 129, 49 Am. St 651, 41 N.E. 414, 29 L. R. A. 360.)

Respondents had caused the plat to be surveyed and made by a competent engineer, who had certified to the correctness thereof, and all facts thereon shown. They had adopted the only recognized method to secure actual knowledge of the fact--the actual quantity of land in the several blocks--and were justified in relying upon such information. (Cabot v. Christie, 42 Vt. 121, 126, 1 Am. Rep. 313; Lovelace v. Suter, 93 Mo.App. 429, 440, 67 S.W. 737; Hanscom v. Drullard, 79 Cal. 234, 21 P. 736.)

SULLIVAN C. J. Ailshie, J., concurs.

OPINION

SULLIVAN, C. J.

This action was brought to recover damages on two causes of action, based on alleged false and fraudulent representations knowingly and intentionally made by respondents in the sale to appellant of blocks 24 and 29 of Stein's subdivision in Ada county.

The first cause of action is based on alleged false and fraudulent representations in regard to the number of acres of land contained in said block 29; and the second, on alleged damages arising from false and fraudulent representations alleged to have been knowingly made in regard to the southern boundary of said blocks. The answer denied the material allegations of each cause of action.

Upon the issues thus made a jury was impaneled and sworn to try the case, and at the close of the introduction of appellant's testimony, and after he had rested his case, the court granted a motion for nonsuit as to both causes of action and entered judgment against the plaintiff. The appeal is from the judgment, and the errors assigned are to the effect that the court erred in granting said motion for a nonsuit and in entering judgment in favor of respondents.

As to the first cause of action, plaintiff introduced the plat made by the surveyor of said block, which plat gives the dimensions in feet of said block and on the block is marked "6-6/10 acres." The surveyor who made said plat testified that the marking of said block as containing 6-6/10 acres was a mistake made by him and Stein knew nothing about that mistake; that according to the dimensions marked on said plat, said block contained only six acres, and plaintiff testified that the respondent Stein exhibited...