Creamer v. Stevens

• Citation: 185 N.W. 581,192 Iowa 920
• Decision Date: 15 December 1921
• Docket Number: No. 33928.,33928.
• Parties: CREAMER v. STEVENS.
• Court: United States State Supreme Court of Iowa

192 Iowa 920

185 N.W. 581

CREAMER

v.STEVENS.

No. 33928.

Supreme Court of Iowa.

Dec. 15, 1921.

Appeal from District Court, Warren County; L. N. Hays, Judge.

Action at law to recover damages for fraud and misrepresentation in the sale and exchange of real estate. Trial to a jury. At the close of plaintiff's evidence, the trial court directed a verdict for defendant. Plaintiff appeals. Reversed.

Evans, C. J., and Arthur, J., dissenting.Clarke & Cosson, of Des Moines, and W. H. Berry, of Indianola, for appellant.

A. V. Proudfoot, of Indianola, and V. R. McGinnis, of Leon, for appellee.

PRESTON, J.

[1] The evidence must be construed more strongly in plaintiff's favor. Plaintiff was a farmer, residing, at the time of this transaction, at Geddes, S. D.; he now lives at La Feria, Tex. Plaintiff owned 320 acres of land near Geddes. The land was under cultivation, and upon it what plaintiff describes as a fine house. The land was incumbered. Plaintiff had listed it for sale with agents at Geddes, at $100 per acre. Defendant is a resident of Iowa, and plaintiff testifies that he understood defendant had not been a resident of Texas. Defendant was the owner of 80 acres of land near Mercedes, Tex., which he had owned for more than three years, before the execution of the contract in question. This land is 8 or 10 miles from La Feria. Defendant had listed his Texas land with an agent named Beck, at Geddes. There was some talk between plaintiff and Beck about exchanging the two properties, but the terms were not discussed. This was before plaintiff had met the defendant, and before plaintiff had gone to Texas, and before he had seen defendant's land. The negotiations between plaintiff and defendant, the alleged false representations and the execution of the written contract for the sale or exchange of the properties, were had after plaintiff had returned from Texas. Plaintiff, through an agent at Geddes, had purchased 80 acres of land near La Feria, a few months before the transaction in question, and he bought 24 acres more, also near La Feria, when he was in Texas. As we understand the record, plaintiff had been induced by some land company to go to Texas to look at land near La Feria, and that he purchased the first 80 acres at that time. Later plaintiff went to Texas again with a land company, on a land excursion, taking a person with him to look at land belonging to the company. Plaintiff was acting as an agent, or subagent, for one of the land companies. The excursion was on the land company's car. This was a part of his business on that trip. While there he availed himself of the opportunity of driving over to defendant's 80 acres. This was a part of his business on the trip. The plaintiff says he made only a hasty and cursory examination of defendant's land. When he got within half a mile of it, the driver ran into a mudhole, and plaintiff walked half a mile, and got up to the bridge that runs over the irrigation canal at the northwest corner of defendant's 80. From there he could look over the entire land; it being level. He did not go over the land. The evidence shows that little good would have been accomplished by walking over it, under conditions existing at that time. The land was covered with undergrowth and some timber. He noticed a slough with some water in it near the corner, probably 100 yards. The slough seemed to run along north and then turned away from the land 100 yards east from where he was. The slough was about 100 yards across; could not see how long. This was two weeks before he saw defendant. He says the land looked pretty; no evidence that it had overflowed or would overflow. The excursion train was to leave in the evening, and plaintiff was in a hurry to get back to town to go with the land company because of the cheaper rates. He walked back to town down the railroad track. Plaintiff was shown the defendant's 80 by one Riggs, who lived near the land. Riggs told plaintiff, in substance, that the land was liable to overflow. Plaintiff returned to Geddes, and while he and defendant were there negotiating for the sale or exchange of the lands, plaintiff told defendant that he had heard that the land overflowed, and asked him what about it. Defendant said there was nothing to that; that the land was all right, and he did not know why anybody would knock on that land.

“He said it was just the land that he wanted, and that he had decided to go down there and live on it, but on account of some sickness or death, he had decided not to go, and to offer it for sale. I made him an offer and tried to get him to come down to $200, but he would not cut a bit. He said his land was worth $225 an acre, worth the money, and he could not do any better. He recommended it as good land; that it was good farm land. I believed the defendant; believed him as against Riggs. I relied on what Stevens said; I believed he told me the truth. That caused me to enter into the written contract. I told him I had always held my land at $100 an acre. He refused to close on those terms, and I finally came down to $90. I never saw his land except the one time that I glanced over it before the deal was closed in South Dakota.”

Plaintiff says that $90 an acre was the actual value of the land. Plaintiff, while in Texas, made no other investigation or inquiry than stated. The representations were that defendant's land was worth $225 an acre, that it was good land, good farm land, and that it did not overflow. These representations as to value and quality were made by the owner of the land. The evidence shows that the land was not worth to exceed $50 to $75 an acre; that the land did overflow; it lies between two lakes, and the lowest part of this land is in the water course between the lakes, and overflows in case of overflow of the Rio Grande river, some times several times a year, other times there are two or three years when it does not overflow; that at one time the water was from one to eight feet deep over the entire 80 acres; that the effects of the overflowing would not show except at the time of the overflow or soon after; that there was nothing to indicate at the time of the year, or when plaintiff saw it, that it did overflow; that the soil is a sort of a gumbo, hard and sticky; when it is hard it is impossible to do anything with it; only just at the right time can you do anything with it; it is sour and heavy; will not raise good crops; a little cotton, cane, and broom corn. It appears that there is an irrigation ditch near this land, but the evidence is that it was not large enough to affect an overflow. Another witness says, from his experience in farming irrigated land around Mercedes:

“Would say that the land is worthless for farming. The fact is that you cannot get mules enough in Hidalgo county to pull a plow through it right now; it is very hard to work. When it is dry it is very hard. When it is wet nobody can get on it; nobody can walk on it.”

The character of the land in these respects would not be readily observed by such an examination as plaintiff made, at least it was for the jury to say. There is other evidence that the land lays fairly well for irrigating purposes. The evidence is that the land would have been worth $225 or more if as represented. We have not attempted to go into the details of the evidence.

It is contended by appellant that gross inadequacy of price, of itself, is a badge of fraud. They cite Boyd v. Ellis, 11 Iowa, 97,Smith v. Grimes, 43 Iowa, 356, 363,Sutton v. Greiner, 177 Iowa, 532, 536, 159 N. W. 268, and other cases. But the two main points in the case are whether the representations were mere puffing, trade talk, expressions of opinion only, or whether they are actionable. And, second, whether plaintiff, under the evidence in the...