Gibson v. Hannay

• Decision Date: 11 November 1924
• Docket Number: 36045
• Citation: 200 N.W. 579,198 Iowa 930
• Parties: GEORGE D. GIBSON et al., Appellees, v. JOHN G. W. HANNAY et al., Appellants
• Court: Iowa Supreme Court

200 N.W. 579

198 Iowa 930

GEORGE D. GIBSON et al., Appellees, v. JOHN G. W. HANNAY et al., Appellants

No. 36045

Supreme Court of Iowa, Des Moines

November 11, 1924

Appeal from Poweshiek District Court.--CHARLES A. DEWEY, Judge.

ACTION at law upon a promissory note. The defense was twofold: (1) That the note was delivered on condition that it was not to go into effect unless a certain proposed exchange of lands between defendants and another should be consummated; (2) that the note was obtained by false and fraudulent representations. The first defense was submitted to the jury and the second was withdrawn by the court. The verdict was for the plaintiffs, and judgment was entered thereon. The defendants appeal.

Affirmed.

Mitchell & Wisdom and Frank Bechly, for appellants.

C. E Hamilton and Clyde McFarlin, for appellees.

EVANS J. ARTHUR, C. J., and PRESTON and FAVILLE, JJ., concur.

OPINION

EVANS, J.

The note in suit is for $ 480. It was given in payment of a commission due the plaintiffs as agents for the defendants in a certain real estate transaction of exchange. The principal grounds assigned for reversal are reducible to two general propositions:

(1) That the court should have sustained the defendants' motion for a directed verdict.

(2) That the court erred in withdrawing from the jury the issue of fraudulent representations.

I. It appears from the evidence that the plaintiffs acted as agents for the defendants in procuring a contract in exchange of lands, as between the defendants and one Sterrett, whereby the defendants bound themselves to convey to Sterrett a farm of 240 acres in Madison County in exchange for a farm of 320 acres in North Dakota, to be conveyed to them by the said Sterrett. The contracting parties duly executed a formal written contract of exchange, and mutually delivered the same. This contract was drawn by the defendant John G. W. Hannay in person. On the same day, June 10, 1922, the note in suit was executed for the commission. More than two months later, this contract was mutually rescinded by a written agreement of the parties. The contention for the defendants is that, when they executed the note, it was delivered to the plaintiffs on condition only that it should not become effective until the contract of exchange was fully carried out or performed. Because of the mutual rescission by the contracting parties, it never was carried out, and it never can be. On the issue presented, the evidence was in direct conflict. The verdict of the jury was for the plaintiffs, and it is not wanting in support in the evidence. The defendants, therefore, were not entitled to a directed verdict, nor are they entitled to claim that the verdict is without support in the evidence.

II. On the issue of fraud, the trial court held that the evidence failed to show the falsity of the representations complained of, and withdrew such issue from the jury accordingly. Defendants complain of this ruling, and contend that they had sufficient evidence in the record to go to the jury. The defendant John G. W. Hannay testified to the alleged false representations as follows:

"I asked the question what kind of crops were raised on there, and Mr. Gibson said to me, 'There is small grain, oats, barley, and wheat and tame grass on the rest of it;' that most of it was under the plow. Mr. Gibson said that the fences were in good repair: cedar posts and barbed wire,--good enough to hold stock. * * * I asked if there were any noxious weeds or bad weeds of any description. Mr. Gibson answered there were no noxious weeds on the place."

For the purpose of showing the falsity of the representations, he called the witness Sterrett, who was the other contracting party and the owner of the North Dakota land. Sterrett, however, was not a resident of North Dakota, but was a resident of Jasper County, Iowa. The testimony elicited from Sterrett was as follows:

"There is no tame grass or timothy on that farm. There never has been, so far as I know. The fences are in good repair,--new fences. 15 to 20 acres is fenced. The rest is not fenced at all. I would judge 300 acres is under cultivation. There was some wheat, barley, and oats, I think, last year.

"Q. How much wheat? A. Well, I could not tell you. Q. How much oats? A. I could not tell you that, either. Q. How much barley? A. I do not know. Q. Do you know if there was any? A. Yes, sir, I do. Q. How do you know? A. Well, I know it was put in the elevator. Q. Your share of it? A. Yes, I rented it for one fourth. I have not found out yet how much I got from it. I wrote up, and the man was gone. The tenant had left at that time. I leased it to the tenant for three years. Q. And he did not stay? * * * Q. Are there any noxious weeds on the farm? A. Well, I guess that is what they call it. Q. Quack grass? A. Very little. Q. Canadian thistles? A. Some. Q. Wild mustard? A. I do not think so. Q. Over all the grain fields wasn't there a wild mustard, in North Dakota? A. I do not think so on that place."

The foregoing is a portion of the record which appellant brings before us in support of this ground of reversal. It will be noted from this testimony that 300 acres of the farm were under cultivation. Assuming that some of its acreage was appropriated by yards, buildings, and highways the remaining acreage was very small. The enumeration of products made by Gibson was "oats,...