Jones v. Stewart
| Decision Date | 19 June 1901 |
| Docket Number | 9,880 |
| Citation | 87 N.W. 12,62 Neb. 207 |
| Parties | JOHN T. JONES v. W. E. STEWART |
| Court | Nebraska Supreme Court |
ERROR from the district court of Lancaster county.
Tried below before HALL, J. Affirmed. HOLCOMB, J., dissenting.
AFFIRMED.
Frederick Shepherd, for plaintiff in error:
The active concealment of a material fact has the same effect as an express false representation. Larson, Contracts, 227.
In setting aside a transaction as fraudulent, inadequacy of price is a strong circumstance. That suppressio veri is equal to suggestio falsi, is a principle which will prevail. In the absence of a satisfactory reason, it is a badge of fraud. Beard v. Campbell, 2 A. K. Marshall [Ky.], *125.
Addison S. Tibbets and Halleck F. Rose, contra:
A purchaser is not obliged to disclose a fact to the vendor which would enhance the value of the property. Coddington v. Goddard, 82 Mass. 436; Hurt v. Wallace, 49 S.W. [Tex.], 675.
DAY, C HASTINGS and KIRKPATRICK, CC., concur. HOLCOMB, J., dissents.
The facts in this case present a very singular transaction. On and prior to November 12, 1892, Willard E. Stewart was the owner of lots 7 and 8 of College Hill, an addition to the city of Lincoln, upon which was erected a seven-room dwelling-house. The premises were incumbered by a mortgage of $ 2,000, together with a small amount of accumulated interest and taxes. On said day, and for several years prior thereto, the plaintiff, under the name of John T Jones, treasurer, had on deposit and to his credit in the First National Bank of Lincoln, $ 2,609.35, and, incomprehensible as it may seem, this fact had entirely escaped his attention. The defendant discovering this fact, made a proposition to the plaintiff to deed him the property above mentioned, subject to the incumbrance, for an assignment of the plaintiff's interest in and to certain property, the nature and location of which the defendant declined to disclose. One of the conditions of the proposed trade was that the plaintiff should sign his name to the papers without seeing, reading or knowing the contents of the instruments he signed. After some modification of the proposition the parties came to an agreement, in pursuance of which the defendant, on November 12, 1892, executed and delivered a warranty deed conveying the premises above mentioned to a person named by the plaintiff for plaintiff's use, and also paid to the plaintiff $ 100 in cash. In consideration of this conveyance and the cash payment, the plaintiff, in pursuance of the agreement, signed two papers without reading them or seeing their contents, or knowing what they contained, except that they were to operate as an assignment of certain interests which he had, of the nature of which he was ignorant. At the time of the negotiation the plaintiff secured a written statement from the defendant that there was nothing contained in the papers which plaintiff signed which would subject him to criminal liability, or bring upon him public ignominy or disgrace. Protected by this simple assurance, he blindly entered into the contract and signed the instrument placed before him. One of the papers so signed was a check in favor of the defendant, on the First National Bank for $ 2,609.35, by means of which the defendant drew said sum from the bank and applied it to his own use. Plaintiff kept the real estate for about two years, at which time he sold it, realizing from the sale just sufficient to pay the mortgage lien upon it. In 1894, plaintiff discovered the nature and extent of the property he had assigned to the defendant, and the full purport of the contract he had made dawned upon him. This action was brought in the district court of Lancaster county to recover of the defendant $ 2,609.35 and interest, and is in the nature of an action for deceit. As a basis for his claim, the plaintiff, in substance, alleges that he was induced to sign the check without reading it, or seeing its written and printed contents, by the untruthful and fraudulent representations made to him by the defendant; that defendant told him he wished to procure from plaintiff a power of attorney and an assignment; that it would not put the plaintiff in a worse condition or position, lose him any money or deprive him of any interest, but would be of great value to the defendant; that plaintiff, by oversight and error, forgot the fact of his deposit in the bank, and relying on the representations made by the defendant, and believing them to be true, signed his name twice, but that in doing so unknowingly signed the check on which the defendant drew said money from the bank. The answer denied any false or fraudulent representations whatever to induce him to sign the papers, and alleged that the plaintiff signed the check and papers voluntarily and knowingly and in accordance with the agreement entered into between the plaintiff and defendant. The trial resulted in a verdict and judgment in favor of the defendant, to review which the case is brought to this court on error.
Much as the court may feel disposed to condemn the selfish cunning manifested by defendant in this transaction, and to lament the artless confidence of plaintiff, yet the legal rights involved are governed by well established principles of the law,...
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