Holmes v. Rivers

• Court: Iowa Supreme Court
• Writing for the Court: LADD, J.
• Citation: Holmes v. Rivers, 124 N.W. 801, 145 Iowa 702 (Iowa 1910)
• Decision Date: 11 February 1910
• Parties: MARK HOLMES, Appellant, v. JACOB RIVERS

124 N.W. 801

145 Iowa 702

MARK HOLMES, Appellant, v. JACOB RIVERS

Supreme Court of Iowa, Des Moines

February 11, 1910

Appeal from Grinnell Superior Court.--HON. J. P. LYMAN, Judge.

ACTION for damages resulted in a verdict for defendant and judgment on a counterclaim. The plaintiff appeals.

Reversed.

Boyd & Bray, for appellant.

Will C Rayburn and Jno. T. Scott, for appellee.

OPINION

LADD, J.

The plaintiff owned a farm of one hundred and twenty acres subject to a mortgage of $ 3,900. The defendant had a house and two lots in Grinnell, subject to two mortgages amounting to $ 4,000. They exchanged, plaintiff allowing $ 6,300 for the town property and defendant $ 9,000 for the farm. In adjusting the difference defendant assigned to plaintiff a note on which $ 3,500 of the principal was unpaid, and plaintiff executed his note of $ 852.50 in favor of defendant, payable on demand. The contract was entered into November 11, 1908, and the papers executed early in December following, but possession was not given by either until March, 1909. In this action, begun February 13, 1909, plaintiff alleged that he was without knowledge of the value of property in Grinnell; that in the negotiations defendant had falsely represented that he paid $ 6,500 for the town property, whereas, it had actually cost him but $ 4,000; that the representation was made with intent to defraud, and that plaintiff relied thereon, and was induced thereby to make the exchange to his damage in the sum of $ 2,000. The defendant admitted the exchange as related, but interposed a general denial to other allegations, and in a counterclaim prayed for judgment on the demand note.

I. Plaintiff testified, in substance, that the prices inserted in the written contract were agreed upon as the actual values of the respective properties. Later and after showing his competency, he was asked the market value of the farm. The answer was excluded on objection as immaterial. The ruling was correct, inasmuch as the value had been agreed upon in the contract. Fagan v. Hook, 134 Iowa 381, 390.

II. T. H. Buchanan, after testifying to the value of the town property, was asked on cross-examination, "How much insurance have you on this building?" Over objection, he testified that he did not know, but would ascertain. Upon being recalled, he answered that: "Our agency was carrying $ 500 on that property at the time of this transaction." Subsequently, upon being recalled, he testified in behalf of plaintiff that the entire insurance on the buildings was $ 4,000, but was not permitted to testify to the amount thereon when defendant purchased the property. If this was error, there was no prejudice, for he subsequently answered a like interrogatory.

On cross-examination he testified, over pertinent objections, that the rule of the company in which he wrote the policy was to limit the amount of insurance to from two-thirds to seven-eights of the value. Five insurance policies were then shown him, and, over objections as incompetent and not the best evidence, he was allowed to state the names of the several companies and agents, the amount of each policy, its date and time of expiration, and the buildings covered. Of course, the policies were the best evidence concerning these matters, but, as plaintiff had elicited the statement that there was $ 4,000 of insurance, the details could have added nothing bearing on the issues being tried, and there was no prejudice.

III. One Hadley testified in behalf of defendant that the value of the farm was $ 76.50 per acre. On cross-examination he was asked whether he knew that it had sold within two months at $ 75 per acre, and if he had known whether that would have changed his testimony. As the trial occurred about four months after the deal and other evidence showed such sale, the witness should have been allowed to answer.

IV. The agent, Corrough, testified in behalf of defendant that plaintiff had listed his farm with him, and that he had procured the former to make the deal, reciting the details. On cross-examination, after saying that he was working for plaintiff, he was asked whether he was also representing defendant. An objection as not cross-examination and immaterial was sustained. It should have been overruled. The inquiry was with reference to his relations with the party in whose behalf he was testifying and his interest in the suit.

V. The defendant's wife testified that plaintiff looked the property over the day before the contract was made. On cross-examination, in answer to interrogatories testing her recollection, she said she thought it was Tuesday before the deal, because on the next day her husband telephoned that plaintiff was coming in to make the deal, and wanted to know if she was willing to let the property go at the price he had suggested. Plaintiff's motion to strike what the husband had said as hearsay was overruled. It should have been sustained.

VI. Wilson, after qualifying, was allowed, over objection as not calling for the proper measure of damages, to testify to the value of the house and barn, independent of the lots. The point is ruled by Ranck v. City of Cedar Rapids, 134 Iowa 563, 111 N.W. 1027.

VII. Plaintiff testified in chief that one Turner had offered him $ 70 per acre for the farm. Turner denied that he had done so. Plaintiff in rebuttal, after saying the offer was not personal, was asked: (1) How it came to him, (2) whether he had been so informed, and finally, (3) whether one Wynes with whom he had listed his farm had told him that Turner had submitted such an offer. These interrogatories were objected to as not calling for evidence in rebuttal, and the objections sustained. Manifestly the occasion for its introduction did not arise prior to Turner's denial, and so the evidence was introduced at the earliest opportunity. The objection should have been overruled.

VIII. In the eleventh instruction the court stated that the measure of damages to be "the difference between the price paid for the property at the time he purchased the same and the actual and fair value of the property at that time." This is criticized for that, as is said, the words "market value" should have been used, instead of "actual and fair value." No evidence had been adduced save of the market value, and for this reason, the jury could have construed no other as intended. See Jonas v....