Hansen v. Kline

• Decision Date: 24 October 1907
• Citation: 113 N.W. 504,136 Iowa 101
• Parties: HANSEN v. KLINE ET AL.
• Court: Iowa Supreme Court

136 Iowa 101

113 N.W. 504

HANSEN

v.KLINE ET AL.

Supreme Court of Iowa.

Oct. 24, 1907.

Appeal from District Court, Calhoun County; F. M. Powers, Judge.

Action at law to recover damages arising out of false representations in connection with an exchange of properties. The defendants, additional to Kline, are W. E. Gray and J. E. Gray, and at the time in question all the parties lived in Rockwell City, Calhoun county. The petition alleges that in July, 1904, plaintiff was the owner of a stock of merchandise in Rockwell City, valued by him at $2,000, which he was induced by the defendants Gray to trade to the defendant Kline for a farm of 160 acres situated in Hayes county, Neb. The specific averment is that defendants entered into a conspiracy to bring about such trade by false representations respecting the Nebraska farm, and that, pursuant thereto, the farm was falsely represented, and the trade thereby accomplished, greatly to his damage. The defendants answered separately, and each denied the charge of fraud as contained in the petition. On the trial plaintiff had a verdict as against all the defendants jointly, on which judgment was entered, and the defendants appeal. Reversed and remanded.J. M. Parsons, M. W. Frick, and J. F. Lavender, for appellants.

Healy Bros. & Kelleher and E. C. Stevenson, for appellee.

BISHOP, J.

A somewhat extended statement of the evidence pro and con seems to be necessary to an understanding of the questions made by the appeal.

W. E. Gray is a lawyer, and his son, J. E. Gray, a dealer in real estate. The latter, having in his hands for disposition the Nebraska farm owned by Kline, approached plaintiff and proposed a trade of properties. It is the testimony of plaintiff: That, in the course of the negotiation, Gray represented the land to be a level tract, good farm land, as good as any in Calhoun county, in a good neighborhood, with 50 acres broke and 50 acres under fence, with a small house, a barn, and a well with windmill, that it was worth $1,900 cash. “I told him that I would not trade for the farm because I could not go and see it. He said: ‘You don't need to go and see it because what I say you can believe. You need not be afraid to trade because I am not going to lie to you or cheat you, and you must not think so because we are old friends.’ He wanted me to go to his father and show him the abstract. And he said: ‘You know my father. He has been your lawyer for many years. My father knows about the land, and you should go to him, and nobody else.’ I asked him if he had been out to the land, and he said he had not seen it. I asked him how he knew about the land, and he said: ‘I know what somebody else said; but it don't make any difference to you because you can depend on what I say.’ He gave me the abstract and other papers, and I took them to W. E. Gray, who looked them over and said the title was good. He said: ‘If you make that trade with J. E., you make a good deal.’ I asked him about the land out there, and he said it is all right. He said: ‘The farm is a good piece of land; and you can make a good home out of it.’ He described the farm and improvements in the same way J. E. Gray had described them. He said he had never been there, but he knew it was good land just like he said. He pointed out in the abstract that the land had been mortgaged once for $2,000, and had sold once for $2,200. He pointed out the $1,200 in contract for loan. I know very little about abstracts, and could not read it. He did not tell me that the abstract had not been brought down for four years. I said: ‘If it is as you say, we will make the deal.’ I did not need a lawyer very much; but, when I did, I went to W. E. Gray. My stock of goods was worth $2,000.” Plaintiff also made it appear that during the negotiations he had told J. E. Gray that he could not make the trade, as he had no ready money to pay the expense of going to the farm; that thereupon Gray offered to loan him $150, and take a mortgage on the farm. And contemporaneous with the execution of the papers evidencing the trade the loan was made; the money for the purpose being procured by J. E. Gray from his father. The wife of plaintiff testified that, while at the office of W. E. Gray with her husband, said Gray represented the farm as lying within 1 1/2 miles from a little town where there was a store and a post office. And she says that, as he said that, his son, Ross Gray, who was in the office, spoke up and said, “There was no store there;” that Mr. Gray looked over at Ross, and Ross turned away. The abstract of title, and the accompanying papers, given to plaintiff by J. E. Gray and thereafter exhibited to W. E. Gray, were introduced in evidence. The abstract bears date October, 1900, and shows a homestead entry by one Jones in August, 1887. During the next month Jones executed two mortgages to the Nebraska Mortgage Company, one for $250, and one for $37.50. In 1892 a release of mortgage was filed by the mortgage company, but it does not appear to which of the mortgages it was intended to have application. In 1890 Jones conveyed to one Bradley; the consideration recited being $2,000. In 1900 Bradley conveyed to one Pratt, the consideration recited being $1,000. No further conveyances appear. The accompanying papers consisted of an unrecorded deed from Pratt to Kline, and a so-called contract for a loan of $250 executed by Jones to the Nebraska Mortgage Company. The contract is, in fact, an application for a loan on the land in question, and, under the head of “Questions to be answered,” appears this question, “What value do you place on the farm?” and the answer, “$1,200.”

Respecting the land conditions, the evidence makes it appear that it lies about 12 miles from any town; that the tract in the larger part is cut up by canyons and ravines--running in various directions--with ridges, or “hog-backs” intervening, many of which are so steep as to be incapable of ascent by a pedestrian; that, while the soil on the level strips or patches is good, in and about the canyons and ravines is of no value; that the place as a whole is of no value for farming purposes, and only of the value of about $250 for any purpose; that at present there are no improvements whatever, although it appears that while owned by Jones he had broken up and fenced a number of acres; that he had built a dugout house in the bank of a ravine, and a small barn, also had dug a well and put up a windmill. J. E. Gray in testimony answered that prior to the trade he had no knowledge or information respecting the farm, except that at the time Pratt sold to Kline he overheard Pratt say that when he, Pratt, bought the farm in 1900, he was given to understand that there was some kind of a house, stable, and well with windmill on it, but that he knew nothing about it. And the witness insisted that this much, and more, he told to plaintiff. He admitted on cross-examination that under his arrangement with Kline he was to and did receive for his services the sum of $150 in cash, and a one-half interest in the stock of goods. W. E. Gray, in testimony, denied having any knowledge or information concerning the farm; denied having made to plaintiff any statements or representations concerning the same; denied having anything to do with the trade, except that he was asked to draw up the necessary papers, which he did. He further insisted that, when told of the proposed trade, he strongly advised plaintiff against it until he, plaintiff, had been out to see the farm.

1. Several rulings on evidence are complained of. We shall notice only such thereof as seem to merit attention. M. R. McCrary, an attorney at law of Rockwell City, called as a witness by defendants, and their counsel, sought to interrogate him with reference to a conversation had with plaintiff on the subject of the trade with Kline while the negotiations looking thereto were going on. Counsel for plaintiff interrupted, and, in answer to questions propounded by him, the witness stated that within his understanding, as of the time and at present, the relation of attorney and client existed between himself and plaintiff at the time of the conversation; that it was his (the witness) expectation that he would be called upon to draw up the necessary papers in consummation of the trade. In answer to counsel for defendants, the witness stated that he had never been employed by plaintiff for any purpose as against W. E. Gray. Objection was then made by plaintiff under the statute (Code, § 4608), and sustained. Counsel for defendants insist that this was error for two reasons: First, that plaintiff having testified at one point on his cross-examination that he had no recollection of talking with McCrary on the subject of the trade, and at another point that “McCrary has never been my attorney,” he was now estopped from insisting upon an objection that could avail him only on the assumption that the relation of attorney and client had existed; second, that, in any event, the objection was not open to plaintiff as against W. E. Gray. We think the objection was properly sustained. The statute was intended to accomplish a beneficent purpose, and to that end it will be given a liberal construction in favor of the parties intended to be benefited. Battis v. Railway, 124 Iowa, 623, 100 N. W. 543.

Now, it is not important that plaintiff did not remember talking over the matter of the trade with McCrary. The latter insisted that he was consulted about the trade, and expected to act in the matter of carrying the same into execution. This expectation, it seems, for some reason was not fulfilled. But communications looking to an employment, although no employment in fact followed, are equally protected by the statute. 23 Am. & Eng. Ency. p. 63. And it is fair to presume that what plaintiff meant by saying that McCrary had never been his attorney was that he had never actually employed him. The witness was also...