Cressler v. Rees
| Decision Date | 04 October 1889 |
| Citation | 43 N.W. 363,27 Neb. 515 |
| Parties | C. W. CRESSLER v. DAVID REES |
| Court | Nebraska Supreme Court |
ERROR to the district court for Madison county. Tried below before POWERS, J.
H. C Brome (Burt Mapes with him), for plaintiff in error:
A misrepresentation as to the market value of property is not actionable. (Chrysler v. Canaday, 90 N.Y. 272; Hartman v. Flaharty, 80 Ind. 472; King v Mills, 10 Allen [Mass.], 548.) Under the circumstances it was proper on cross-examination to show plaintiff's experience in the real estate business and his knowledge of the value of lands. (1 Wharton on Evidence 530; Wilson v Wagar, 26 Mich. 452.) Restoration of the seller to his former position is necessary to rescission.
Wigton & Whitham, for defendant in error:
False representations of value, greatly exaggerated, are sufficient to rescind. (Morgan v. Dinges, 23 Neb. 271; Bank v. Yocum, 11 Id., 328; Phillips v. Jones, 12 Id., 213; Mohler v. Carder, 35 N.W. 647; 2 Pomeroy Eq. Jur., 878.) The effect of these representations was material and properly given in evidence. (Faulkner v. Klamp, 16 Neb. 177; Berringer v. Beecher, 25 N.W. 491.) Failing to obtain a marketable title, defendant in error may have the contract rescinded. As to third instruction see Faulkner v. Klamp, supra; Fallon v. Ellison, 3 Neb. 74; Bank v. Yocum, 11 Id., 328.
This was an action in replevin, instituted in the district court of Madison county, for the possession of a stock of furniture kept in a store in the city of Norfolk. A jury trial was had, which resulted in a verdict in favor of defendant in error and upon which a judgment was rendered; for the reversal of which plaintiff brings the case to this court by proceedings in error.
It appears that defendant in error was the owner of the stock of goods referred to and doing business in the city of Norfolk, and that he made a trade with plaintiff in error by which the stock of furniture was traded for real estate in Davis county, Iowa, and on which plaintiff in error had paid defendant in error the sum of about $ 440.
Subsequent to this trade defendant in error seems to have become satisfied that plaintiff in error had practiced a fraud upon him in his representations as to the quality of the land in Davis county. He therefore tendered back the money and claimed to rescind the contract, and brought this action for the possession of the stock of furniture.
The errors alleged will be noticed in the order in which they are presented. First, it is insisted that the court erred in admitting evidence as to Cressler's representation as to the value of the Davis county farm. It is shown by the evidence that plaintiff in error had been upon the land, had seen it and knew what it was, and what its value was. And it is testified by defendant in error that plaintiff in error represented to him, or told him, that it was worth $ 3,000. It is claimed by plaintiff in error in his evidence that he made no representations as to the value of the property whatever. It also appears that defendant in error had not seen the farm and knew nothing as to its quality. This part of the conversation though, as testified to by defendant in error, is not to our mind a very essential element in the case, but there were other representations testified to by him which, if believed by the jury, would be sufficient to avoid the contract.
In Morgan v. Dinges, 23 Neb. 271, 36 N.W. 544, it is said by Judge MAXWELL, in writing the opinion:
It would seem, therefore, to follow logically that, if plaintiff in error knew of the quality of the land and also knew that the defendant in error knew nothing of it, which is shown by the evidence, a representation by him that the property was worth very much more than he knew it to be at the time the representations were made is equally fraudulent. The court did err in this ruling.
Upon the trial defendant in error testified in substance that plaintiff in error represented to him that the farm referred to "was a good farm of ninety-four acres, sixty acres of it under cultivation, all of it under fence; the rest of it was timber and pasture land; a good house, insured for $ 600, and about a mile from the nice little town of Floris, which had six hundred inhabitants, and that the farm was worth $ 3,000." He also testified that he relied upon the representations made, and would not have made the exchange had it not been for them.
The depositions of other witnesses who resided near the property were read upon the trial, showing that such representations, if made, were untrue. It is now insisted that the court erred in permitting defendant in error to testify that the representations made by Cressler induced him to make the trade; that this was testifying to a conclusion which it was the province of the jury to determine, the witness stating the facts. We cannot agree to this conclusion; it was entirely competent for the witness to state whether he believed the representation, alleged to have been made, and whether or not they were the moving cause of the transfer.
During the cross-examination of defendant in error he was asked whether or not he had been in the habit of trading and dealing in real estate in Iowa and in this state. To this question objection was made, which was sustained. The ruling of the court upon this subject is now assigned for error. It seems to be conceded that the defendant in error knew nothing of the real estate in question. Neither did he know anything of the values of real estate in the neighborhood where the...
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