Howells State Bank v. Hekrdle

• Decision Date: 23 May 1925
• Docket Number: 23001
• Citation: 203 N.W. 1005,113 Neb. 561
• Parties: HOWELLS STATE BANK, APPELLANT, v. THOMAS HEKRDLE, APPELLEE
• Court: Nebraska Supreme Court

203 N.W. 1005

113 Neb. 561

HOWELLS STATE BANK, APPELLANT, v. THOMAS HEKRDLE, APPELLEE

No. 23001

Supreme Court of Nebraska

May 23, 1925

APPEAL from the district court for Stanton county: ANSON A. WELCH JUDGE. Reversed.

REVERSED.

George A. Eberly, for appellant.

D. C Chase, Frank Dolezal and A. E. Wenke, contra.

Heard before MORRISSEY, C. J., ROSE, DEAN, DAY, THOMPSON and EVANS JJ., and SHEPHERD, District Judge.

OPINION

THOMPSON, J.

Plaintiff seeks to recover of defendant the sum of $ 1,600 by virtue of a certain negotiable promissory note, executed and delivered by defendant to one Kunhart, who sold it to plaintiff, and, as plaintiff alleges, in due course before due, without notice of any infirmity in Kunhart's title, and for a valuable consideration, to-wit, $ 1,510.

Defendant, to avoid such recovery, after admitting the execution and delivery of the note, alleges that there was fraud in its inception, in that he was the owner of a half section of land in Madison county; that he employed Kunhart to trade such land for a quarter section to be found by Kunhart and approved by defendant, for which he agreed to pay Kunhart $ 1,600; that Kunhart accepted the employment, and shortly thereafter informed him that he had found a quarter section in Dodge county, about six miles from the town of Dodge; that he and Kunhart, at the latter's request, went and saw the land, and that Kunhart again told him it was in Dodge county, six miles from the town of Dodge; that he asked Kunhart to drive to Dodge, but the latter refused; that relying upon Kunhart's statements that the land was in Dodge county, six miles from the town of Dodge, and believing the same to be true, he entered into a contract for the exchange of such lands, and in furtherance thereof the note in question was then executed and delivered to Kunhart; that afterwards he discovered that such quarter section was in Colfax county, and was nine miles from the town of Dodge; that he immediately notified Kunhart, as well as Drahota, with whom the exchange was had, that he rescinded the contract of exchange, as well as the note in question, and repudiated each; that there was no other consideration for the note, and that plaintiff, before purchasing it, had full knowledge and notice of the before-mentioned facts.

Upon issues thus joined, case was tried to a jury. Verdict and judgment for defendant. Plaintiff appeals, relying for reversal upon the following grounds, among others: The court erred in giving instructions numbered 4, 7, 7 1/2, and 8, respectively, on its own motion; the judgment is not supported by the evidence.

Instruction 4 is as follows: "The burden of proof is on the defendant to prove by a preponderance of the evidence that the said Kunhart represented to defendant that the land for which he was trading was situated in Dodge county, Nebraska, and represented that the same was not more than six miles from the village of Dodge, and to prove that he had no knowledge that the land was situated in Colfax county, Nebraska, and more than six miles from the village of Dodge, and also to prove that he, the defendant, relied upon said representations, believed the same to be true, and was thereby induced to sign said promissory note for the sum of $ 1,600. The undisputed evidence in this case shows that the land for which defendant was then trading is situated in Colfax county, Nebraska, and is eight miles from the village of Dodge."

The rule announced in this instruction is supported by the greater weight of authority. One is entitled to that which he has in fact purchased, and it is not incumbent upon him to show that he was pecuniarily damaged by receiving something different. Thus, if in this case defendant's agent, Kunhart, informed him that the land he was presenting for his consideration was situated in Dodge county, six miles from the town of Dodge (which we do not decide), and he relied on that statement and believed it to be true, and thus accepted the proposition, and gave Kunhart as his commission the note for $ 1,600, this condition is not met, in law, by an offer to convey the same amount of land in Colfax county, eight or nine miles from the town of Dodge, unless the latter land is accepted with knowledge of its location, or an estoppel, based on sufficient facts, is pleaded and proved. In Jakway v. Proudfit, 76 Neb. 67, 109 N.W. 388, we held:

"A purchaser of real or personal property is entitled to the benefit of his bargain, in other words, to receive the identical property purchased; and where the vendor by fraud or false representations has conveyed to him or induced him to accept something not contemplated by his contract, he may rescind the sale and recover what he has paid, without showing that he has sustained any pecuniary injury or damage thereby."

As to instruction 7, the record shows that on the 14th day of August, the date upon which plaintiff bank alleges it bought the note in question, Kunhart was owing it $ 300, and $ 12 interest, which was deducted from the purchase price, to wit $ 1,510, and Kunhart was then given credit on his checking account for the balance, $ 1,198. This, added to the $ 175.21 which he then had on deposit, gave him a checking account of $ 1,373.21. After this time Kunhart issued numerous checks and made...