Gustafson v. Rustemeyer

• Citation: 70 Conn. 125,39 A. 104
• Court: Supreme Court of Connecticut
• Decision Date: 05 January 1898
• Parties: GUSTAFSON et ux. v. RUSTEMEYER.

39 A. 104

70 Conn. 125

GUSTAFSON et ux.

v. RUSTEMEYER.

Supreme Court of Errors of Connecticut.

Jan. 5, 1898.

Appeal from superior court, Hartford county; William T. Elmer, Judge.

Action by Frederick J. Gustafson and wife against Charles P. Rustemeyer to recover damages for fraud in the sale and exchange of property. The defendant filed an answer denying the fraud, and a counterclaim to recover damages for fraud on the part of the plaintiffs. The plaintiffs demurred on the counterclaim, and the court sustained the demurrer. The case was then tried to the court, facts found, judgment rendered for the plaintiffs, and appeal by the defendant for alleged errors in the rulings of the court. No error.

The complaint alleged, in substance, that the defendant, who owned a farm in Suffield, which he knew in fact to contain only 78 acres of land, in order to induce one of the plaintiffs, the wife of the other plaintiff, to purchase said farm and a certain quantity of lumber, falsely and fraudulently represented to the plaintiffs that the farm contained 186 acres of land, and falsely and fraudulently represented to them that he owned 10,000 feet of lumber, when he in fact knew that he only owned 1,000 feet of lumber; that the wife, relying upon said representations, was thereby deceived, and was thereby induced to purchase said farm and lumber, and to give the defendant in exchange therefor the sum of $500, and certain real estate on Julius street, in Hartford, of the value of $1,750 above all incumbrances. The answer was in effect a general denial, and with it was filed the following counterclaim: "(1) In the transaction referred to in the complaint, plaintiffs represented to the defendant that the property on Julius street was worth $3,000 over and above incumbrances, and thereby induced the defendant to make, execute, and deliver to the plaintiffs a deed of the land in question. (2) The property on Julius street was of little, if any, value, over and above the incumbrances, as the plaintiffs well knew at the time of the transaction; but defendant says that they made the representations fraudulently and falsely, and for the purpose of inducing the defendant to convey the said Suffield property, to his great loss and damage. (3) Relying upon the plaintiffs' representations, the defendant made, executed, and delivered his Suffield property, referred to in the complaint, to his great loss and damage. Defendant claims by way of counterclaim $3,000 damages, and asks to recover the whole of said sum, or any part of the same over and above the amount, if any, that shall be allowed to the plaintiffs in this action." The following demurrer was filed to the counterclaim: "Plaintiffs demur to so much of the defendant's answer as is contained in the counterclaim, and for reasons of demurrer they assign the following, to wit: (1) The alleged false representations, as appears from the answer, are matters of information, judgment, and estimation, only, and therefore not actionable. (2) It is not stated in the counterclaim that plaintiffs made any false representations of fact upon which the defendant had a right to rely. (3) It is not averred in said counterclaim that the plaintiffs made any false representations as to any facts, but only that they falsely stated the value of said real estate. (4) It does not appear from the counterclaim that, at the time said defendant received and accepted the deed of said real estate on Julius street, he was not fully informed as to the true value of said real estate; nor does it appear but that he was equally qualified with the plaintiffs to judge as to its true value." The court sustained the demurrer.

The substance of the findings is as follows: On the 28th of September, 1884, the defendant, being the owner of a certain farm in Suffield, Conn., conveyed it to the plaintiff Johanna Gustafson by warranty deed. As comprising said farm, said deed described three separate parcels of land,—one containing 6 acres, more or less; one containing 120 acres, more or less; and one containing 60 acres, more or less; a total of 186 acres, more or less. The boundaries given in said deed were correct, but the first piece of land, described in said deed as 6 acres, more or less, contained only 5 1/4 acres; the second piece, described as containing 120 acres, more or less, contained only 51 3/4 acres; and the third piece, described as containing 60 acres, more or less, contained only 39 1/2 acres; a total of 96 1/2 acres. Prior to this conveyance the plaintiffs, in company with the defendant, visited said farm, and, under the direction of the latter, passed across the three pieces. They did not go around them; the second and third pieces being irregular in shape, and somewhat obstructed with undergrowth, bushes, and trees. At this time, while upon this land, the defendant indicated to the plaintiffs different objects as being upon the boundary line of said tract, which proved to be beyond the boundary line; and at this time the defendant represented to the plaintiffs that said second piece of land contained 120 acres and said third piece contained 60 acres. At the time of these representations, and at the time of said conveyance, the defendant knew that there were not 186 acres of land in said tract. He had, some time prior to the representations aforesaid, caused said land to be measured by a surveyor, and had seen the report of the surveyor, showing that there were less than 100 acres of land in said tract, and at this time was aware of the correct or approximate number of acres contained in the same. Shortly before the conveyance of said land the defendant represented to the plaintiffs that he had purchased 10,000 feet of lumber, with which to erect a tobacco shed on said land. At this time there was 1,000 feet of lumber on the land, and the defendant represented that the remaining 9,000 feet would be soon delivered, and that the possession and ownership of all of said lumber would be transferred to the plaintiff Johanna when the conveyance of the land was made to her. In exchange for said tract of land conveyed by the defendant to the plaintiff Johanna, the latter paid the defendant $500 in money, and, also, the plaintiffs executed and delivered to the defendant a deed of certain real estate, consisting of a house and lot situated on Julius street, in the city of Hartford, belonging to the plaintiff Johanna Gustafson, the value of which was estimated to be $1,750 above a mortgage incumbrance. At the time the representations were made as to the purchase of lumber, the defendant had not purchased and paid for the same, as he represented; nor has the same ever been purchased and delivered to the plaintiffs. And when the defendant made the aforesaid representations to the plaintiffs with reference to the quantity of land in said tract, and as to his purchase of lumber which was to be delivered to the plaintiff Johanna, he knew that such representations were false; and he knowingly and willfully made said false representations with intent thereby to deceive the plaintiffs, and to induce them to convey the property on Julius street to the defendant, and to pay to him the said sum of $500, which they did pay him, and the land on Julius street, in Hartford, which they did convey to him; and, relying upon the truth of said representations, they were deceived and defrauded by the defendant. The land conveyed by the defendant to the plaintiff Johanna was of the value of $10 per acre. In form, the deed was adequate, and did convey title to the premises in question.

Upon the trial below, the defendant, for the purpose of showing the value of his farm when it was conveyed, as compared with the value of the Julius street property, which he received in exchange, asked a witness the following question: "How did the farm compare in value with the house? * * * Which was worth the most?" This was objected to by the plaintiffs. The court held it to be immaterial, and said, "That is excluded for the present." To this the defendant excepted, and asked the court to allow the stenographer to note an exception. The court replied, "I will, eventually." Nothing more appears to have been done about the matter. One of the plaintiffs (the wife) was called as a witness to testify to a conversation she had with the defendant, about a month before the deed of the farm was delivered to her, concerning the size of each of the three pieces of land. As she was about to testify, the following occurred: "Q. What, if anything, did Mr. Rustemeyer say-Did you hear him say anything about the number of acres of land there was in that farm? Judge Henney: I object. Mr. Barbour: On what ground? Judge Henney: On the ground that this conversation had taken place in August. Late in August is too remote. They made no bargain at that time. The deed is dated the 28th of September. They made no bargain at that time. No deeds were drawn. The deed was drawn here in Hartford, or drawn in Suffield and executed here in Hartford, and so it was over a month between the conversation and the final transaction. Inasmuch as they made no bargain, then they cannot base any false representations upon a statement made at that time. The Court: Was this part of the inducement, as you claim? Mr. Barbour: Yes, sir; on which the final bargain was made. The Court: You may ask it. Judge Henney: Will your honor note an exception?

The Court: I take It, this led to the bargain. Mr. Barbour: Yes, sir. The Court: Go on with the examination." She then testified, in substance, that the defendant at that time said that the home lot contained 6 acres; the second piece, 120 acres; and the third piece, GO acres. Upon the trial the plaintiffs claimed that the rule of damages, in ease of judgment for the plaintiffs, should be the difference between the value of the property which the defendant represented that he owned and conveyed and its value if it had been as represented. The...