Herrington v. Hodges
| Decision Date | 20 April 1921 |
| Docket Number | 3556 |
| Citation | 197 P. 1035,58 Utah 254 |
| Court | Utah Supreme Court |
| Parties | HERRINGTON v. HODGES et al |
Appeal from District Court, Third District, Salt Lake County; P. C Evans, Judge.
Action by C. E. Herrington against Ernest A. Hodges and others. From judgment for defendants, plaintiff appeals.
AFFIRMED.
Chez & Barker and L. J. Holther, all of Ogden, for appellant.
Gustin Gillette & Brayton, of Salt Lake City, for respondents.
OPINION
Plaintiff brought this suit to rescind a contract entered into between himself and the defendants for the purchase of 250 acres of farm lands in Elko county, Nev. The contract was in the form usually employed in such transactions, providing for payment by the plaintiff of the purchase price on the installment plan. The contract, together with a deed of conveyance of the lands, executed by the parties was placed with the Bettilyon Home Builders' Company of Salt Lake City to be delivered to plaintiff upon the full payment of the purchase price of the lands, $ 5,500. February 25, 1918, the date when the contract was entered into, the plaintiff, pursuant to the terms of said contract, made a cash payment of $ 2,000 on the purchase price, and the following March moved upon the lands and proceeded to put the same to crops. In May of the same year plaintiff vacated the premises, came to Salt Lake City, and in June following commenced this action against the defendant to rescind the contract and for the recovery of the $ 2,000 theretofore paid by him, on the grounds of fraud and misrepresentation practiced upon him by defendants in selling him the lands.
It is alleged in the complaint that the defendants, to induce plaintiff to make said purchase, falsely and fraudulently made to him the following statements:
"(a) That there were 225 acres of land in cultivation and under the plow; (b) that there were 20 acres in alfalfa; (c) that there were 25 acres in meadow, consisting of timothy and red top; (d) that some of the land was in grain; (e) that all of the above land was first-class, No. 1 soil; (f) that there was a water right belonging to said land containing an abundance of water for the irrigation of the 225 acres, and that abundance of water could be obtained for the remainder of 15 acres if application were made therefor."
The answer of the defendants denied the making of the representations attributed to them by the complaint, and, as an affirmative defense, alleged:
"That plaintiff purchased said premises from said defendants with full knowledge or the means of knowledge of all of the conditions surrounding said land obtained by said plaintiff from a personal examination of said premises and from knowledge and information obtained from other persons than these defendants, and not because of any representations of any kind or nature whatsoever made by these defendants or either of them."
The trial court found the issues in defendant's favor, and judgment was entered accordingly. Plaintiff appeals. He assigns as error and relies upon the following for a reversal of the judgment: The rejection of certain testimony offered in plaintiff's behalf at the trial, that the trial court's findings of fact, conclusions of law, and judgment are not sustained by the evidence, and that the conclusions of law and judgment are contrary to law.
It appears that the plaintiff was a resident of Ogden, and had, for some years before entering into the agreement for purchase of the lands in question, been engaged in farming in Box Elder county, Utah. The land had been listed for sale with the Bettilyon Home Builders' Company and advertised in Salt Lake City newspapers. The plaintiff and the defendant Ernest A. Hodges first met about February 7, at the office of the Bettilyon Home Builders' Company, and engaged in conversation concerning the land. During the course of the conversation defendant exhibited to the plaintiff a certain cultural map made by one C. B. McBride, an engineer, representing that in 1912 certain portions of the land at that time were in grain and alfalfa, and other portions were being used as pasture and meadows lands. The plaintiff testified concerning the map and the conversation with the defendant about the water rights belonging to the land, and that the defendant represented that the lands were cropped as represented by the map and substantially the same as alleged in the complaint. He also testified that the defendant, upon that and other occasions before the contract was executed, made similar representations as to the crops, and that the land "had a No. 1 water right"; that "the water right was perfect."
The defendant Ernest A. Hodges, in his own behalf, testified:
"I bought the ranch in question in January, 1918, from Mr. Hunter. I think it was about the middle of January. At that time I visited the ranch. It had some snow on the ground, probably an inch or an inch and a half. I was on the land about 30 minutes. I never saw the ranch except that one time and the time I went out with Mr. Herrington. I first met Mr. Herrington in the office of the Bettilyon Home Builders' Company in Salt Lake City. I listed the ranch with the Bettilyon Company, and afterwards Mr. Curl called me up and asked me to meet Mr. Herrington in his office. This was about the 7th of February, 1918. I had a talk with Mr. Herrington and told him I was the owner of the ranch. I told him that I didn't know anything about the ranch and had only been out there once; that I had bought the ranch for my sons, but they had been enlisted in the army and I wanted to sell it. At that time I showed him a cultural map, Exhibit C. I also showed him the book of the abstract of water title by the state engineer, and I told him at that time that the cultural map showed all that I knew about the ranch. I told him that Mr. Hunter said it had a water right for 225 acres and opened up the book and showed him the abstract of claims at pages 135-136. I told him that Mr. Hunter knew all about this ranch, and that I would take him up and introduce him to Mr. Hunter. I never made any representations to Mr. Herrington except as shown by the cultural map. I never told him that there was any amount in cultivation. I never told him that there was any kind of crops on it. I didn't tell him that there was 20 or 25 acres in alfalfa, or any other amount. I never told him that there was 225 acres in cultivation. I didn't tell him that it was A No. 1 soil. We went out to see Mr. Hunter and met him on the sidewalk. I introduced Mr. Herrington to Mr. Hunter. Mr. Hunter told Mr. Herrington that it had a good water right, and that it was the making of a dandy ranch, and Mr. Herrington and I agreed to go out and look at the ranch. Mr. Herrington suggested that we go out and look at the ranch. I met Mr. Herrington in Elko, and he stated that he guessed we couldn't trade. Mr. Herrington said he had met a friend here who told him that it was a dry farm. I said I was surprised at that, as Mr. Hunter had said it had a good water right. We then agreed to go out and look at the ranch the next morning. We got an automobile and got out and walked over the land. At that time he saw something that looked like salt grass to him, and he said, 'That is salt grass;' and I said 'Well, I don't know what kind of grass it is.' I said to him, 'Mr. Herrington, you know as much about this ranch now as I do;' and he said, 'Let's go and see a lawyer and look into the water,' I didn't point out to Mr. Herrington that any portion of it was in alfalfa, or in meadow, or in cultivation, or in grain. We went back to Elko, and I asked the clerk in the hotel who was the best attorney in town, and he told me that McNamara & Van Fleet were. We went up to their office, but they were too busy to see us and suggested that we go and see Mr. Dysart, which we did. I said, 'Mr. Herrington is figuring on buying the ranch from me out here and is questioning the water right.' I told him that I had only gotten the ranch very lately and didn't know a thing about it, and we wanted to get his opinion on the water right. I showed him the papers which have been introduced in evidence here, and after he looked them over Mr. Herrington asked him, 'Is that a perfect water right?' and he said, 'No, sir; there is no such thing in Elko county that I know of.' He said the water had not been adjudicated, and that we would never know how much water we had until the same was adjudicated; that he thought the adjudication would take place the next spring. We then left the office, and I asked Mr. Herrington, 'Do you want this ranch or don't you?' and he said he wanted the ranch."
William A. Curl, a witness for the plaintiff, testified:
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