Hecht v. Metzler

• Decision Date: 06 March 1897
• Docket Number: 695
• Citation: 48 P. 37,14 Utah 408
• Court: Utah Supreme Court
• Parties: CHARLES HECHT, Appellant, v. JOSEPH METZLER, RESPONDENT

48 P. 37

14 Utah 408

CHARLES HECHT, Appellant, v. JOSEPH METZLER, RESPONDENT

No. 695

Supreme Court of Utah

March 6, 1897

Appeal from the Fourth district court, Territory of Utah. Hon. H. W Smith, Judge.

Action by Charles Hecht against Joseph Metzler for tort committed in the fraudulent misrepresentation of land and its rental value. From a judgment for defendant, plaintiff appeals.

Reversed.

Maginnis & Weber, and J. N. Kimball for appellant.

E. M Allison and Evans & Rogers, for respondent.

No briefs were filed.

MINER J. ZANE, C. J., and BARTCH, J., concur.

OPINION

MINER, J.:

On August 1, 1893, at Denver, Colo., appellant and respondent exchanged real estate by written contract, which was afterwards executed by interchange of deeds of conveyance. By the terms of the written contract, appellant agreed to exchange 3,250 acres of land in Colorado, at a stipulated price of $ 30 per acre, and some personal property, for four pieces of property belonging to respondent in Ogden, Utah. The price of the Ogden property was not fixed in the contract, but was fixed in the deeds of conveyance. Plaintiff alleged in his complaint that the price of each piece of Ogden property was fixed and represented by the defendant at the following stated sums in the negotiations which culminated in the written contract: One piece of the Ogden property consisted of residence property on the corner of Washington avenue and Twenty-first street, valued at $ 10,000, and represented by the defendant to be renting at $ 240 per year. The second piece was business property on the corner of Twenty-third street and Washington avenue, of the value of $ 60,000, and was represented by the defendant to be producing a rental of $ 4,000 a year. The third piece consisted of a vacant lot on Twenty-Eighth street and Washington avenue valued at $ 16,000. The fourth piece consisted of a number of lots and a piece of unplatted ground in South Ogden, known as "Central Park Annex to the City of Ogden," valued at $ 33,000, and represented by the defendant to be sufficient to cut into 100 full-sized building lots, and situated southeast of the Pingree Avenue school-house, and that they were high, dry, and smooth, were full lots, accessible to the streets, and with buildings built up around them. Plaintiff alleges that the representations as to the value, location, and rental of said lots were false, and known to be false by the defendant, and that the lots conveyed were not the lots sold, and that he relied upon the representations as being true, and made the exchange in reliance thereon. Plaintiff also claims that the defendant went over and examined the Colorado property, but that he (the plaintiff) never examined the Ogden property with a view of purchasing it; that he saw the first three descriptions named, but was not shown the lots in question, and had no information as to the rental of the improved property, except what he obtained from the defendant, as aforesaid, before the contract was made. The answer denied the allegations in the complaint; alleged that the Colorado property was not worth to exceed $ 15,000, and offered to reconvey and deliver the whole thereof for $ 15,000; that the plaintiff had inspected the lots and property in question before the exchange was consummated; and denied that the value inserted in the Ogden deed was fictitious.

This action was brought to recover damages for fraud and deceit, and the measure of damages relied upon was the difference between the actual value of the several pieces of Ogden property as it was and what it would have been worth had the representations been true. After the plaintiff's attorney had made his opening statement to the jury, and before the trial proceeded, the attorney for the defendant made the following opening statement to the jury: "That we right here and now offer to deed that ranch to Mr. Hecht for the sum of $ 15,000, when he is asking for a judgment of $ 85,000, and keeps the Ogden real estate. We right here say now to the gentleman that claims he has been damaged in the sum of $ 85,000, that here and now we do in our testimony, and have in our answer, said, 'Take the ranch at $ 15,000.' Maginnis: I object to his making a statement of that kind to the jury. (Objection overruled. Exception.) Allison: * * * I desire to say in that connection, before the verdict, for fear that it may be replied that the gentleman has not got $ 15,000 in ready cash, we will give him time on the account for which he can have that ranch. He can pay part in cash and the rest on time. Maginnis: I suppose we have our exception to that statement? Allison: We have the deeds in our possession, and we tender them a deed of that ranch conveying this property to him in the presence of the jury, where he is asking $ 85,000 damages. We offer to convey that ranch and all the personal property to him for $ 15,000, and in addition to that-- Maginnis: We want this taken down, and note an exception. Court: I don't know what the gentleman means by offering a deed here. Allison: We propose to keep our offer good during the whole trial. Court: I think they have a right to do that. Maginnis: Counsel has no right in the opening statement to get matter before the jury that the court could not admit at another stage of the case. I would like the remarks noted, and take an exception to them. I would like to see those deeds, please. Allison: The name of Mr. Hecht is not in them, but we will have it inserted. Maginnis: This is a deed from Stowe. Allison: We said in our answer that we would convey it or cause it to be conveyed. He has not got a deed back from the gentleman who owns it, and will produce an abstract showing that the gentleman now owns the ranch. Maginnis: He has got a deed signed by Theodore Stowe. I simply call attention to the fact to show how loose this matter is. We don't know who Stowe is, whether his warranty is any good, who he is, or what he is, whether he is responsible, or whether he is married, or whether his wife joins with him in the deed-- Court: It don't make any difference, if you don't accept it. Maginnis: Counsel has no right to make the statement. Counsel is dealing improperly in this case. Court: Is it claimed that there was any money paid? Maginnis: No, sir; it was an agreed price. Court: Was there anything else than an exchange? Was there a money consideration? Allison: No, sir. Maginnis: There was personal and real property on our side. Court: No notes and no mortgages? Maginnis: None, except assumed. We desire now an exception to allowing counsel to make this statement. Court: I think the statement may stand. (Exception by plaintiff.)" The appellant now contends that the offer to sell to appellant the Colorado property for $ 15,000 at the time of the trial, May 10, 1895, and the tender of a deed from respondent's grantee, upon payment of $ 15,000, in the presence of the jury, and the remarks and order of the court in permitting the offer to stand against his objection and protest, were error.

The price of the Colorado land was fixed and expressed in the contract of sale at $ 30 per acre, besides the personal property. The price of the Ogden property was not fixed in the contract of sale, but the consideration, as alleged, was stated in the deeds. The answer does not allege any deceit or fraudulent representations on the part of the appellant with reference to the Colorado property. The trial took place about 21 months after the contract was made,--at a time when values may have greatly depreciated. With reference to damages, the case must be tried just as it would have been tried the day after the contract was made, if the question had arisen at that time. The deed tendered was signed by Mr Stowe, with no assurance of title, and when there was not time to ascertain whether or not the title was perfect. Who Stowe was, and whether he had a wife or not, does not appear. The offer was not to trade back, but to sell to appellant at a given price, below the price stated in the deed and contract. When the objection was made, the court remarked, "It don't make any difference, if you don't accept it," and permitted the offer to stand. By this remark the court emphasized the propriety of the offer, and from it, if the offer was not accepted, the jury might have inferred without proof that the appellant had placed an exorbitant price upon his land, and was seeking to recover unjust damages at their hands. The appellant may not have had a dollar with which to purchase, even if the price asked was one-quarter its actual value. Or he may have been so impoverished by the results of the trade or otherwise that to accept would not only be to lose his case, but the land besides. To refuse to accept the offer might be used as an argument to the jury that his demand was unjust. If the offer was made in good faith, it proved nothing. It was not a method recognized by the law for proving value. Nor was it competent as tending to show that appellant had lost nothing by the exchange. A party should not be permitted to create testimony in this manner. There is some force in the remarks of counsel for the appellant "that courts of justice are not organized to be turned into market places, where suitors, for the purpose of bluff or otherwise, are expected to enter into a wager on real estate, or any other transaction, in order to maintain a remedy which the law gives for frauds practiced upon them." The appellant could not, under any rule of law, be compelled to buy back his...