Donelson v. Michelson

• Decision Date: 07 June 1920
• Docket Number: 21058
• Parties: JOHN D. DONELSON, APPELLANT, v. FRED H. MICHELSON, APPELLEE
• Court: Nebraska Supreme Court

178 N.W. 219

104 Neb. 666

JOHN D. DONELSON, APPELLANT, v. FRED H. MICHELSON, APPELLEE

No. 21058

Supreme Court of Nebraska

June 7, 1920

APPEAL from the district court for Hall county: JAMES R. HANNA JUDGE. Reversed.

REVERSED.

Prince & Prince, for appellant.

T. O C. Harrison and B. J. Cunningham, contra.

OPINION

DORSEY, C.

In September, 1915, plaintiff traded city property in Grand Island, Nebraska, for a quarter section of land in Chase county, Nebraska, belonging to the defendant Michelson. The exchange was evidenced by a written contract which contained the following provisions pertinent to this case:

"The said John D. Donelson is to go to Chase county, Nebraska, and examine said land, and the said Fred H. Michelson guarantees that there are eighty (80) acres, a trifle more or less, of good, level, tillable land and under cultivation and in one body on the said one hundred and sixty (160) acres of land, and not what is called or known as 'sandy land' but what is known as a 'sandy loam.' Within the next week from this date, that is, the week commencing with September 26, 1915, said John D. Donelson will go to said land, make his examination of said land and return, and if satisfied therewith then this trade to be completed. If not as reported and as above stated, and satisfactory to John D. Donelson, then the said Fred H. Michelson is to pay the railroad fare of the said John D. Donelson expended in making the trip to and from the said land for said examination, and the said John D. Donelson will report on or before the end of the week just mentioned."

After setting forth the written exchange contract, it is averred in the petition that one Niedfeldt, acting for the defendant, took the plaintiff to Chase county, and there met one Ryan, also an agent for the defendant, and that they together "took this plaintiff out and showed him a quarter section of land, 80 acres of which was under cultivation and in corn and of the kind of land as described in said contract, representing to the plaintiff that it was the identical piece of land which they proposed to sell him and as described in the agreement; that plaintiff relied upon all said statements, representations and acts of the defendant and his agents, and not knowing the falsity thereof, and so relying thereon, did purchase said land; that said statements, representations and acts of the defendant and his said agents, and each of them, were false and untrue and were known by them and each of them to be false and untrue at the time they were made, and were made for the purpose of deceiving the plaintiff and to induce him to purchase said land and to cheat and defraud him." It is further alleged that the land shown was not the tract for which the plaintiff was trading; that the latter was rough and unfit for cultivation, and was of the value of only $ 1,200, whereas, if it had been as represented, it would have been worth $ 3,500; and the plaintiff prayed judgment for the difference.

The defendant's answer set up the defense, in substance, that the contract required the plaintiff to make an examination of the land; that he went to Chase county for that purpose, made his examination without interference or persuasion on the part of the defendant or his agents, and on his return reported that he was satisfied, and concluded the trade.

There was a jury trial and a verdict for the defendant, and from the judgment dismissing his action the plaintiff appeals.

Counsel for the plaintiff advance the contention that, primarily, this is not an action for fraud or deceit, but for damages for breach of specific warranty as to the quality of the land. In our opinion, however, the pleadings clearly negative that contention. The defendant, it is true, represented the land to be of a certain character and quality, but, in another clause of the same contract, the plaintiff explicitly declared his intention not to rely upon the defendant's representation, and it was agreed that the contract should be binding only in the event that plaintiff should report after a personal investigation that he was satisfied. After having returned from an ostensible examination of the land and reported himself satisfied, the plaintiff manifestly would have been estopped to rely upon breach of warranty or misrepresentation as to the character or quality of the land, unless, through the defendant's fault, he had been prevented from making a full and fair examination. It is charged in the petition that the defendant, through the acts and representations of his agents, deceived the plaintiff by inducing him to believe he was inspecting the land he was trading for, when, in fact, it was a different tract. The ultimate fact to be determined was not whether the land traded for was as represented, but whether the defendant's conduct had operated to prevent the plaintiff from inspecting it.

Counsel for the plaintiff insist that the verdict returned in favor of the defendant was not warranted by the evidence, but that all of the elements essential to the plaintiff's right to recover were established. In order to determine that...