Ernster v. Christianson
| Decision Date | 17 November 1909 |
| Citation | 123 N.W. 711,24 S.D. 103 |
| Parties | ERNSTER v. CHRISTIANSON. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Marshall County.
Action by Michael Ernster against Nels Peter Christianson. Judgment for plaintiff, and defendant appeals. Affirmed.
G. R Krause, for appellant.
Taubman Williamson & Herreid, for respondent.
This case comes before us on appeal by the defendant from a judgment entered upon a directed verdict in favor of the plaintiff, and from the order denying a new trial. The action was instituted by the plaintiff to recover the sum of $990 with interest from July 21, 1899, and the complaint, as amended on the trial, states plaintiff's cause of action substantially as follows: "That on the 21st day of July, A. D. 1899 the defendant made, executed, and delivered to the plaintiff a certain deed in writing, whereby he conveyed to the plaintiff the following described real property situated in the county of Minnehaha, *** and in and by said deed he covenanted and agreed to and with the plaintiff, his heirs and assigns, that said premises contained 152 acres." The plaintiff further alleges: That, at and prior to the execution and delivery of the deed mentioned in paragraph No 1 of the first cause of action herein, the defendant was the owner of the land and premises described therein and solicited the plaintiff to purchase the same at and for the agreed price of $22.50 per acre, and then and there falsely represented to the plaintiff that the said premises contained 152 acres of land; that the plaintiff believed in and relied upon said representations so made by the defendant, and believed that the said premises did actually contain 152 acres, as represented by the defendant, and as set forth in the deed, and was thereby induced to and did purchase said premises of and from the said defendant at the price per acre aforesaid; that on or about said day said defendant made, executed, and delivered to the plaintiff a warranty deed of said premises, a copy of which is hereunto annexed, and the plaintiff paid said defendant for said premises the sum of $3,420; that at the time defendant made said representations, and executed and delivered said deed, he well knew the representations so made by him and the statements contained in said deed in regard to the number of acres of land conveyed thereby to be false, and made the same with intent to deceive, defraud, and cheat the plaintiff; that the said premises contained only 108 acres, instead of 152 acres, as represented by said defendant, to the damage of the plaintiff in the sum of $990. Wherefore plaintiff demands judgment for the said sum, with interest at the rate of 7 per cent. per annum, and for costs of the action. Attached to said complaint was a typewritten paper, marked "Exhibit A," which is a copy of the deed referred to in the complaint. The defendant in its answer to the foregoing complaint denied each and every allegation contained therein.
On the trial it was admitted by the defendant that, some time prior to the sale and conveyance by him of the property in controversy, he listed the same for sale at Dell Rapids with one J. A. Cooley. Evidence was then introduced on the part of the plaintiff tending to prove: That in June, 1899, the plaintiff and one Peter Threinen and other parties from Iowa were shown the land in controversy by Mr. Cooley, and that he represented to them that there were 152 acres in the tract, which the defendant would sell at the price of $22.50 per acre; that plaintiff did not conclude to purchase the land at that time, but returned to Iowa, and subsequently wrote to Cooley and Kenefick, who seem to have been partners, that he would take the land at the price specified, and that soon thereafter he received the deed executed by the defendant and his wife, and remitted to the bank of which Mr. Kenefick was the cashier in Dell Rapids a draft for $3,420 in payment for the same; that in September of that year he commenced work upon the land, and in the February following he moved to this state, and the possession of the land was delivered to him by the defendant; that subsequently he learned that the tracts of land conveyed to him by the deed did not contain 152 acres; that he thereupon had conversations with the defendant in regard to the number of acres contained, and requested the defendant to settle with him for the difference, which he refused to do; that thereafter he ascertained, by a survey made by the county surveyors, that there were only 108 acres in the tracts of land conveyed to him, and thereupon he commenced this action to recover the price paid for 44 acres, the shortage in the amount of land which the defendant had assumed to convey to him, and which had been represented to him by said Cooley, the agent of the defendant. Peter Threinen, witness on the part of the plaintiff, testified that he had a conversation with the defendant about the quantity of land Mr. Ernster had purchased of him, and that the defendant stated to him he had sold to Mr. Ernster about 130 acres. He corroborated Mr. Ernster's statement that Mr. Cooley represented there were 152 acres in the tract. In his cross-examination he stated he was out with the plaintiff and Mr. Cooley to buy land, and that Cooley showed them defendant's land. Defendant in his own behalf testified, in substance: That about July, 1899, he employed Mr. Cooley to find a purchaser for his farm; that Cooley found a purchaser, one Peter Threinen; that he afterwards executed a deed to said Threinen for the property and left it at the bank in Dell Rapids of which Kenefick was cashier, to be delivered upon payment of the price; that he never consented to the erasure of Threinen's name and the substitution of the name of the plaintiff; that he did not know personally either Ernster or Threinen; that he never saw the deed afterwards until he saw it at the trial.
No further evidence was introduced on the part of the defendant and the plaintiff thereupon moved the court to direct a verdict in his favor for the said sum of $990, with interest, for the reason that the uncontradicted evidence in the case showed that the defendant sold and delivered the real estate in controversy to the plaintiff, and represented by the deed and by his agent that it contained 152 acres, and that the plaintiff, relying upon this statement, purchased the land at $22.50 per acre, and paid the purchase price therefor, and that the uncontradicted evidence shows that the tracts of land only contained...
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