Hoock v. Bowman

• Decision Date: 02 October 1894
• Parties: HOOCK v. BOWMAN.
• Court: Nebraska Supreme Court

42 Neb. 80

60 N.W. 389

HOOCK

v.BOWMAN.

Supreme Court of Nebraska.

Oct. 2, 1894.

Syllabus by the Court.

1. B. desired to purchase, for the purpose of building thereon, lots 1 and 2 in a certain addition to the city of Omaha, platted and owned by H. The agent of H. showed the lots to B.; pointed out the corners and stakes; represented that lot 1 was a corner lot, that lot 2 was contiguous thereto, and that both fronted on Sawyer street. The streets had not been opened through the addition. B., believing and relying on the truth of the representations made by the agent, entered into a written contract with H., agreeing to purchase and pay for said lots. The representation as to lot 1 being a corner lot was false. Held, that these representations, under the circumstances, were material, and entitled B. to a rescission of the contract.

2. A purchaser of real estate has a right to believe and rely upon representations made to him by his vendor as to the character, quality, and location of the property when the facts concerning which the representations are made are unknown to the vendee.

3. If a vendor makes material representations as to the character, quality, or location of his real estate, and the vendee believes, relies, and acts on these representations, and they prove to be false, the vendor cannot shield himself from the consequences of his fraudulent conduct by interposing the plea of laches on the part of his vendee.

Appeal from district court, Douglas county; Irvine, Judge.

Action by Agnes E. Hoock against Anna K. Bowman. There was a judgment for plaintiff, and defendant appeals. Reversed.G. A. Rutherford, for appellant.

O'Brien & O'Brien, for appellee.

RAGAN, C.

On the 24th day of June, 1887, Agnes B. Hoock, by her contract in writing of that date, agreed to sell and convey to Anna K. Bowman lots 1 and 2 in Hoock's subdivision of lots 15 and 16 in Brookline, Douglas county, Neb. At the time of the making and delivery of the contract, Mrs. Bowman paid $100 of the purchase money, the contract providing that the remainder should be paid in three equal annual installments; and, when such payments were made, Mrs. Hoock was to execute to Mrs. Bowman a deed of conveyance for the property mentioned in the contract. Default in the payment having occurred, Mrs. Hoock brought this suit to the district court of Douglas county against Mrs. Bowman for an accounting of the amount due her from Mrs. Bowman on the contract, and for a decree ordering the property sold to pay the amount found due. Mrs. Bowman, as a defense to this action, pleaded that, prior to the execution of the contract sued upon, the plaintiff represented to her that said lot 1 was a corner lot, bounded on the north by Park street and on the east by Sawyer street, and that lot 2 was contiguous to lot 1, and both fronted on Sawyer street; that she (Mrs. Bowman) relied upon these representations, and believed the same to be true; and, in consequence of the statements and her belief in their truth, she entered into the contract sued upon, agreeing to purchase the lots. She then averred that the representations made by plaintiff were false, and known by her to be false at the time they were made, and that they were made by the plaintiff with intent to deceive the defendant; and that, since her discovery that the representations made by the plaintiff as to the situation of the lots were false, she (the defendant) had refused to make any further payments under the contract. She prayed for a rescission of the contract, and for a judgment against Mrs. Hoock for the money she had paid on the lot. The district court specially found that this defense of Mrs. Bowman was sustained by the evidence; and also found that the lots were not worth as much by $25 as they would have been had they been located as the plaintiff represented them to be; but refused the appellant a decree rescinding the contract, and deducted from the amount due Mrs. Hoock on the contract the $25, and rendered a decree ordering the lots to be sold for the payment of the remainder. From this decree, Mrs. Bowman prosecutes an appeal to this court.

1. This appeal presents only the question of the correctness of the conclusion of law made by the court on the finding. The question is, were the false representations made by appellee as to the situation of these lots of such materiality as to entitle the appellant to a rescission of the contract? The appellant desired these lots for the purpose of building thereon. This fact was known to the appellee. The appellee's agent showed these lots to the appellant; pointed out the corners and stakes; represented that lot No. 1 was a corner lot, that lot No. 2 was contiguous thereto, and that both fronted on Sawyer street. The addition of which the lots were a part had been platted by the appellee, but the streets had not been opened. We think these representations, under the circumstances, were material; and, since they were believed, relied, and acted upon by the appellant, she was entitled to a rescission of the contract; but, if she chose to ratify the contract, she might have done so, and sued the appellee for damages, and recovered the difference between what the lots were worth as located and what they would have been worth had they been located as represented. In Delorac v. Conna, 29 Neb. 791, 46 N. W. 255, S. resided in California, and owned a piece of land in this state, worth $25 per acre, which land she had never seen, and of whose location and value she had no knowledge. C. falsely represented to S. that the land was wild and unproductive, and that $10 per acre was far above its real value. Believing these representations, S. sold and conveyed the land to C. It was held that S. was entitled to a rescission of the contract. In Cruess v. Fessler, 39 Cal. 336, it was held that a misrepresentation of the value of a business and good will, knowingly made by the vendor, was fraudulent, and entitled the purchaser to a rescission of the contract. In Livingston v. Iron Co., 2 Paige, 390, the vendee applied to the vendor to purchase a lot of wild land, and represented to him that it was worth nothing except for the purpose of a sheep pasture, the vendee knowing at the time that there was a valuable mine on the land, of the existence of which the vendor was ignorant. It was held that the representations made by the vendee as to the value of the land, and his concealment from the vendor of the existence of the mine,...