Gardner v. Mann

• Decision Date: 12 December 1905
• Docket Number: No. 5,512.,5,512.
• Citation: 36 Ind.App. 694,76 N.E. 417
• Parties: GARDNER et al. v. MANN et al.
• Court: Indiana Appellate Court

36 Ind.App. 694

76 N.E. 417

GARDNER et al.

v.MANN et al.

No. 5,512.

Appellate Court of Indiana, Division No. 1.

Dec. 12, 1905.

Appeal from Circuit Court, Fountain County; Joseph M. Rabb, Judge.

Action by Ephriam L. Mann and another against Frederick B. Gardner and others. From a judgment in favor of plaintiffs, defendants appeal. Affirmed.

W. T. Whittington and W. A. Whittington, for appellants. W. A. Swank and Thomas & Foley, for appellees.

MYERS, J.

The purpose of this action is to rescind, cancel, and set aside an executed contract for the exchange of lands, on account of misrepresentations alleged to have been made by appellant Frederick B. Gardner to appellees. Demurrers to the complaint were overruled, and appellants answered in general denial. The issue thus formed was submitted to the court; trial had; special findings of fact and conclusions of law thereon stated. The separate motion of Frederick B. Gardner for a venire de novo was overruled, and judgment on the findings of fact in favor of appellees.

1. Appellants contend that the court erred in its conclusions of law on the special findings of fact. In substance the findings are as follows: That on and prior to May 17, 1902, appellees were the owners by entirety of certain real estate in the city of Crawfordsville, Ind., of the value of $1,500, and of the annual rental value of $200, with a mortgage thereon for $700. That on the same day and prior thereto appellant Frederick B. Gardner was the owner of 160 acres of land in Finney county, Kan., which was unimproved and not susceptible of cultivation, and of the value of $200, and of the annual rental value of $5, and was unincumbered. That neither of said parties were acquainted with each other prior to said day, and were brought together by one Alfred Lookabill, the agent of appellees, who introduced the subject of the exchange of their said properties. That appellees inquired of Gardner as to the location, character of soil, and price at which he held the Kansas land, to which Gardner replied that the Kansas land is all raw prairie land. That the same could all be plowed. That it was within four miles of Gardner City, the county seat of Finney county, Kan., and situate in that county. That a railroad ran through Garden City. That he held the land at $10 per acre. That Lookabill volunteered the statement that he had never seen the land and knew nothing about it, but he had relatives living in Kansas, who he thought did their trading at Garden City, and from whom he had received letters stating that lands in their vicinity were selling from $5 to $10 per acre. That appellees stated to appellant Gardner that if the lands were rich, black prairie soil, and would produce wheat, corn, and oats, it was all right; otherwise, it was not. Thereupon Gardner informed appellees that the land was just as he said it was; that appellees priced the Crawfordsville property at $1,800, and appellant his land at $10 per acre, and that he would exchange his Kansas land for appellees' Crawfordsville property and assume the mortgage thereon; that, if the trade was made, it must be done that evening (Saturday) as he expected to leave the next Monday morning, and thereupon deeds were exchanged-appellees receiving a deed for the Kansas land, and appellant Frederick B. Gardner a deed for appelles' Crawfordsville property. It is also found: That neither of the parties had any knowledge of, or had ever seen, the Kansas land. At the time of said agreement to exchange property Lookabill had no special employment or contract with appellant, but his services in making the trade were thereafter recognized by Gardner, who paid him for the same. That in making the exchange of property aforesaid appellees relied upon the statement of Lookabill as their agent, and paid him a commission as such, not knowing that he was acting in any wise for appellant. That they relied upon and believed the statements made by Gardner with reference to the character and quality of the land and its location with reference to Garden City. That it was susceptible of cultivation. That it was worth in the neighborhood of $10 per acre. It is also found that appellees had no means at hand of ascertaining the truth or falsity of any of said statements. “Sixth. The court further finds that, as a matter of fact, the lands in question were not located within four miles of Garden City, the county seat of Finney county, Kan., but that they were located eleven miles from Garden City, Kan., and that, while the lands could be plowed, they were a barren, sandy waste, in an arid region not susceptible of irrigation, and not susceptible of cultivation in any kind of crops, and were worth not more than $1.25 per acre. Seventh. The court further finds that said agent, Lookabill, had no relatives living nearer than 30 miles of Garden City, and that they resided in another county, and not in Finney county.” The findings further show that on June 5, 1902, appellees offered to place appellants in statu quo, and demanded of them a reconveyance of the Crawfordsville property, which was refused. On substantially these facts the court stated conclusions of law as follows: “(1) That plaintiffs are entitled to have the deed executed by the plaintiffs to the defendant Frederick B. Gardner, mentioned in its findings, set aside and declared void; (2)that the plaintiffs are entitled to have their title in and to the premises described in the complaint quieted against the claim of the defendants thereto.”

The doctrine is well settled that where a party to a contract makes a misrepresentation as to a material existing fact, and, without means at hand of knowledge, “the one to whom it is made believes it to be true, relies and acts upon it” to his prejudice, may, in a court of equity, rescind it, if the parties can be placed in statu quo, whether the falsity of the representation was known to the party making it or not. Guy v. Blue, 146 Ind. 629, 45 N. E. 1052;Small v. Kennedy, 137 Ind. 299, 33 N. E. 674, 19 L. R. A. 337;Ross v. Hobson, 131 Ind. 166, 26 N. E. 775;Bethell v. Bethell, ...