Dresher v. Becker
| Decision Date | 28 February 1911 |
| Docket Number | 16,302 |
| Citation | 130 N.W. 275,88 Neb. 619 |
| Parties | QUINTILLA M. DRESHER, APPELLEE, v. ANSON E. BECKER ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: HOWARD KENNEDY JUDGE. Affirmed.
AFFIRMED.
McGilton Gaines & Smith, for appellants.
D. M Vinsonhaler, contra.
This is an action to recover damages in the sum of $ 6,040.86 for fraudulent representations whereby plaintiff was induced to exchange a quarter section of land in Merrick county for a house and lot in Omaha. From a judgment in favor of plaintiff for $ 3,232.16, defendants have appealed.
In her petition, plaintiff, among other things, pleaded, in substance, the following facts: Defendant Thomas Brennan represented to plaintiff that he was the agent of the owner of the Omaha property, and proposed the exchange. Defendant Anson E. Becker, an employee of Brennan, was the real owner, a fact not known to plaintiff until after the deal had been closed. To deceive plaintiff and induce her to make the exchange, defendants falsely and fraudulently represented to her that the Omaha property was situated in the most desirable residence portion of the city; that it was in good repair; that it was occupied by tenants who had leased it for the year 1908 at an annual rental of $ 810; and that it was reasonably worth $ 10,000. While the negotiations were in progress, plaintiff was a resident of Portland, Oregon, and was not familiar with Omaha, or with the value of property therein, but had previously transacted business with Brennan, and had confidence in him. Brennan, at his office in Omaha, December 16, 1907, called Becker and said to him in the presence of plaintiff: "This is Miss Dresher from Portland, who is here to see about her farm." Thereupon Becker procured a conveyance and took plaintiff to a locality different from that described in the negotiations, showed her a piece of real estate different from that subsequently exchanged for her farm, and told her it was the property defendants offered to trade therefor. Plaintiff left Omaha the same day. At the solicitation of defendants she returned December 31, 1907, deeded her farm to Becker in exchange for a property different from that shown by him, relying upon the representations of defendants as to value, location, condition and rental. The answers admit the exchange of the properties and that Becker was in the employ of Brennan, but deny all allegations charging defendants with fraud or deceit, and allege that plaintiff knew the value of the Omaha property and that the title thereto stood in the name of Becker who was joint owner with W. V. Bennett; that the property shown to plaintiff was in fact the property exchanged for her farm, and that it was worth $ 10,000, though representations to that effect were mere expressions of opinion.
The court instructed the jury their verdict should be for the defendants if they found from the evidence that Becker showed plaintiff the property subsequently conveyed to her. Failure of the trial court to direct a verdict for defendants is assigned as error, and it is argued that the evidence is insufficient to sustain a finding that Becker did not show plaintiff the property described in his deed to her; that plaintiff was not deceived; that the representations as to value were mere expressions of opinion for which defendants are not liable, and that there is no competent proof that plaintiff was damaged, even if she did not see the Omaha property before the exchange was made. Plaintiff testified that Becker did not take her to the property in controversy, and she gave details indicating that he took her to a different location and showed her another house. The trial developed incidents which suggest that she may have been mistaken, but her testimony was direct and positive, and she steadfastly adhered to her story through a trying cross-examination. She was directly contradicted by Becker, and under such circumstances the credibility of the witnesses and the weight of the evidence were questions for the jury. On this issue they found for the plaintiff. The finding is supported by sufficient evidence, and for the purpose of this appeal it establishes the fact that the property shown was not the property conveyed.
Is there competent proof of damages? The evidence shows that when plaintiff was residing in Portland in November, 1907 she received from Brennan letters written by Becker which contained such representations as the following: "The price is $ 10,000." "The property is always occupied by good tenants." At that time Becker occupied one of the flats. Four months earlier Brennan advertised the property for sale at $...
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