Hibbets v. Threlkeld

• Decision Date: 11 February 1908
• Citation: 114 N.W. 1045,137 Iowa 164
• Parties: HIBBETS v. THRELKELD ET AL.
• Court: Iowa Supreme Court

137 Iowa 164

114 N.W. 1045

HIBBETS

v.THRELKELD ET AL.

Supreme Court of Iowa.

Feb. 11, 1908.

Appeal from District Court, Lucas County; F. W. Eichelberger, Judge.

Action at law to recover damages for false and fraudulent representations made by defendants with reference to some Wisconsin land, traded by them to plaintiff in exchange for some town lots. Trial to a jury, verdict and judgment for defendants, and plaintiff appeals. Affirmed.Stuart & Stuart, for appellant.

E. W. Drake and L. B. Bartholomew, for appellees.

DEEMER, J.

It is charged in the petition that defendants conspired and confederated together to cheat and defraud plaintiff out of his property, and, pursuant thereto, falsely and fraudulently misrepresented certain Wisconsin land which they were proposing to exchange for plaintiff's town lots; that 60 acres of the Wisconsin land was in cultivation, and the rest in good timber, and that it was all underlaid with a vein of coal. Other misrepresentations are charged, but need not now be set out. Defendants denied the alleged conspiracy, and separately denied the making of any false statements or representations. They also pleaded that plaintiff made false and fraudulent representations regarding his property. Upon these issues the case was tried resulting in a verdict for defendants, and plaintiff appeals.

It is strenuously argued that the verdict should have been for plaintiff, instead of defendants, on the theory that the testimony shows without conflict or without serious dispute that defendants made the representations claimed, that they were false and untrue, and that plaintiff was damaged thereby. It is enough to say in this connection that there was a decided conflict in the testimony, and that much of the testimony upon which plaintiff relies is in the form of statements made after the trade was negotiated, which statements defendants explained in such a manner as that, if true, the jury might have given them no force or effect for the purpose of proving fraud.

2. Appellants complain of the third instruction given to the jury. The instructions were not excepted to when given, and plaintiff made no complaint of the third instruction in his motion for a new trial. This leaves nothing for us to consider with reference to the third instruction.

3. The complaint made of the eighth instruction is such as that a consideration of some of the rulings on evidence is necessary to a complete understanding of the matter. Testimony was adduced by defendants to show the value of the town lots given by plaintiff in exchange for the Wisconsin property. This was objected to, but the objection was overruled. In this there was no error. Likes v. Baer, 8 Iowa, 368, s. c. on rehearing, 10 Iowa, 89;High v. Kistner, 44 Iowa, 79. See, also, Aldrich v. Scribner (Mich.) 109 N. W. 1121, and cases cited. In this connection, the trial court gave its eighth instruction, reading as follows: “Evidence has been permitted to go to you as to the value of the lots of plaintiff which were exchanged for the Wisconsin land. This evidence was admitted only as a circumstance for the jury to consider as to whether or not it is probable that the plaintiff relied upon the alleged representations as to the Wisconsin land, or that he did not contract with reference to such representations, and such evidence should be not considered by you for any other purpose whatsoever.” This instruction is in exact accord with the authorities above cited, and nothing need be added to what is said in those cases. Relating to this same matter, p...