Ladner v. Balsley

• Court: Iowa Supreme Court
• Writing for the Court: GIVEN, J.
• Citation: Ladner v. Balsley, 103 Iowa 674, 72 N.W. 787 (Iowa 1897)
• Decision Date: 30 October 1897
• Parties: JAMES LADNER, Appellant, v. D. H. BALSLEY

72 N.W. 787

103 Iowa 674

JAMES LADNER, Appellant, v. D. H. BALSLEY

Supreme Court of Iowa, Des Moines

October 30, 1897

Appeal from Hamilton District Court.--HON. S. M. WEAVER, Judge.

ACTION to recover one hundred and thirty dollars rent, alleged to be due upon a written lease and promissory note given for said rent. The defendant answered, admitting the execution of the lease and note, and denying any indebtedness thereon, and pleading several matters as defense, set-off, and counter-claim, as will hereafter appear. Verdict and judgment were rendered in favor of the defendant for seventy dollars.

Reversed.

George Wambach for appellant.

Hyatt & Hyatt for appellee.

OPINION

GIVEN, J.

I.

The facts necessary to be noticed are these: On March 19, 1894 the plaintiff, through A. W. Little, his agent, leased to the defendant a certain farm, from that date until the first of March 1895; said lease being in writing. The lease recites the rental to be two hundred and thirty dollars, and contains this provision: "The said party of the first part shall have a lien, for the rent at any time remaining unpaid, upon any and all property of the party of the second part used on said premises during the term whether the same be exempt from execution and attachment or not." At the same time the defendant executed to plaintiff his two promissory notes,--one for one hundred dollars, payable on or before November 1, 1895, which has been fully paid, and one for one hundred and thirty dollars, payable on or before the first day of June, 1895, being the note upon which this suit is brought. Plaintiff caused a landlord's attachment to issue against the crops of corn on said premises, and all other personal property of the defendant which had been used or kept for sale on the premises during the term of the lease, "and not exempt from execution." Under this attachment the sheriff seized four horses, two cows, five tons of hay, and about twenty-five bushels of corn. At the same time, the sheriff, by direction of the plaintiff's attorney, seized, under the clause of the lease quoted above, the following property, which was exempt from execution, namely, about seventy-five bushels of corn, four tons of hay, two cows, one or two calves, and five head of hogs; and all this property was held under the seizure up to the time of the trial, November 28, 1895. It appears that, at the time the lease and notes were executed, Mr. Little, on his own account, sold a horse to the defendant for twenty dollars, which sum was included in the notes, and went to make up the amount thereof, namely, two hundred and thirty dollars.

II. The defendant alleges that there was a failure of consideration for said notes and lease, and that he was damaged in the sum of sixty dollars, in this: That plaintiff's agent represented to him that sixty-five acres of said land were in cultivation; that defendant, relying thereon executed said lease and note; and that in truth and in fact there were only about thirty-five acres in cultivation. The defendant testifies that he and Mr. Little went to look at the farm before leasing it, between the first and middle of March; that Little told him there were about sixty-five acres under cultivation; that when they were there the ground was wet and muddy; that they went over the place some twenty or thirty rods, and concluded it was too muddy, and went back; and that he relied on the statement of Little as to the amount of land under cultivation. Mr. Little testifies that he never was on the farm prior to the time in March, except that he may have been once at the house; that he did not know anything about the number of acres under cultivation. He says: "I went into the house, and the tenant there told me there were about fifty or sixty acres of land under cultivation, and I told Balsley what the tenant had told me." The court instructed as follows: "If you find by a preponderance of the evidence that at or before the time the lease was made the plaintiff's agent stated and represented to the defendant that there were sixty-five acres of cultivated land upon the leased premises, and that defendant believed and relied upon said representation, and was not in a position to know or ascertain for himself the true amount of cultivated land, and in reliance of said representations entered into the lease, and you further find that there was a materially less amount of cultivated land than was so represented, then the defendant is entitled to recover or be allowed in this action the difference between the fair rental value of the premises as they would have been had they been as represented, and the fair rental value of said premises in the condition in which they were in fact at that time. If, however, you do not find that said representations were made, or if they were made and defendant did not rely thereon, or if such misrepresentations were made merely as a matter of opinion, and not as an assertion of fact, then no damages can be based on this branch of the defense." Plaintiff contends that under the facts the defendant had no right to rely upon this representation, and that, having opportunity to know the fact, the law will give him no...