Lanning v. Sprague, 7643

• Decision Date: 02 February 1951
• Docket Number: No. 7643,7643
• Citation: 227 P.2d 347,71 Idaho 138
• Parties: LANNING et ux. v. SPRAGUE.
• Court: Idaho Supreme Court

Page 347

227 P.2d 347

71 Idaho 138

LANNING et ux. v. SPRAGUE.

No. 7643.

Supreme Court of Idaho.

Feb. 2, 1951.

Gigray & Boyd, Caldwell, for appellant.

Dunlap & Dunlap, Caldwell, for respondents.

KEETON, Justice.

Plaintiffs, respondents here, brought this action to recover damages because of alleged deceit and misrepresentations of defendant, appellant, as to what constituted the boundary lines of Block 80, Mountain View Addition to Caldwell.

The parties will be referred to as they appear in the trial court. Respondents will be referred to as plaintiffs and appellant will be referred to as defendant.

Defendant, on January 10, 1947, inserted an advertisement in the Caldwell News offering for sale 2 1/2 acres of land, close to a school, with improvements consisting of a six room modern house, stoker, full basement, large barn, garage and chicken house. Plaintiffs made an appointment with defendant to view the premises so advertised, and together the parties inspected the property. In showing the plaintiffs the alleged boundaries of the land, defendant indicated a fence running east and west approximately 70 feet north of the dwelling, and told the plaintiffs that the north boundary of the land was approximately 15 feet north of the fence so indicated. The defendant further pointed out to the plaintiffs certain improvements claimed to be located on the property, namely, a dwelling, chicken house, shed, garage, fruit and shade trees, alfalfa patch and cesspool. Plaintiffs, on January 17, 1947, entered into a contract with defendant to purchase the property for the sum of $10,000; thereafter paid the purchase price in full and received a warranty deed covering Block 80 Mountain View Addition to Caldwell.

About July 1, 1948, plaintiffs learned that Block 80 did not extend the distance north represented by defendant and that the true boundary line of the land so contracted for and conveyed was approximately 70 feet south of the line indicated, and that the alfalfa field, some fruit and shade trees, chicken house, shed and garage were not located on the property purchased; that the dwelling extended into a dedicated, unopened street (Locust Street) a distance of about 4 1/2 feet; that the barn represented as being on the premises extended 16 feet across an alley; that the boundary lines of the property as represented and pointed out to the plaintiffs were, in fact, not the true boundary lines of the property; and that the total acreage was not 2 1/2 acres, but 1-8/10 acres.

On issues framed, a jury trial was waived, and the court on evidence submitted (somewhat in conflict) found: 'That immediately prior to the 17th day of January, 1947, and on or about the 15th day of January, 1947, while plaintiffs and defendant were dealing with respect to the sale and purchase of said real property, as aforesaid, the defendant, intending to deceive the plaintiffs and to induce them to purchase said real property; made to the plaintiffs the following false representations, to-wit:

'The said defendant represented to the said plaintiffs that the North boundary line of said real property hereinabove described was 15 feet North of a fence located on and along the South boundary line of Block 79, Mountain View Addition to Caldwell, Canyon County, Idaho; that the said defendant represented to plaintiffs that certain improvements, to-wit, a dwelling house, chicken house, shed, garage, fruit and shade trees, were located on said real property * * *.'

'That said representations of the said defendant were false and that the North boundary line of said real property hereinabove described was in fact located a distance of approximately 70 feet South of said fence located as aforesaid; that said improvements, to-wit, the dwelling house, chicken house, shed, garage, fruit and shade trees, were not in fact located in said Block 80, Mountain View Addition to Caldwell, but were, and now are located in a Street between said Block 80 and Block 79 of Mountain View Addition to Caldwell, Canyon County, Idaho, known and platted as Locust Street in that certain plat hereinafter described. * * *'

The court further found that the plaintiffs discovered about July 1, 1948, that the representations were false, and that when the contract of purchase was entered into plaintiffs had no knowledge or information as to the location of the improvements and the north boundary line of said real estate other than the statements and representations of the defendant which they relied upon, and believed to be true, and because of said false representations and statements plaintiffs entered into the contract of purchase. The court entered judgment for the plaintiffs in the sum of $3,120.70. This appeal is from the judgment.

When the case was called for trial, defendant made a motion for a continuance, alleging in substance that there was a proceedings pending before the City Council of Caldwell, to vacate a portion of Locust street, and if the street were vacated it would then be unnecessary to move the house from the street onto the land sold, and thus mitigate the damages. The ocurt denied the motion. The ruling has been assigned as error.

The motion was not supported by an affidavit and based on a contingent or prospective supposition of what might or might not happen. A motion for continuance is addressed, in the first instance, to the sound discretion of the trial court, and its ruling will not be reviewed or disturbed unless such discretion has been abused. Reynolds v. Corbus, 7 Idaho 481, 63 P. 884; Robertson v. Moore, 10 Idaho 115, 77 P. 218; Rankin v. Caldwell, 15 Idaho 625, 99 P. 108; Storer v. Heitfeld, 17 Idaho 113, 105 P. 55; Miller v. Brown, 18 Idaho 200, 109 P. 139; De Puy v. Peebles, 24 Idaho 550, 135 P. 264; Corey v. Blackwell Lumber Co., 27 Idaho 460, 149 P. 510; Berlin Machine Works v. Dehlbom Lumber Co., 32 Idaho 566, 186 P. 153; Aumock v. Kilborn, 53 Idaho 506, 25 P.2d 1047; Pacific Coast Joint Stock Land Bank v. Security Products Co., 56 Idaho 436, 55 P.2d 716.

In the case before us we find no abuse of discretion.

Appellant contends that the plaintiffs had both actual and constructive notice of the location of the street north of Block 80 above described. On conflicting evidence, the court found the converse to be true.

Findings of the trial court based on competent, substantial evidence, even though the evidence is conflicting, will not be disturbed on appeal. Stallinger v. Johnson, 65 Idaho 101, 139 P.2d 460; Pickerd v. Dahl, 64 Idaho 14, 127 P.2d 759; Jones v. Mikesh, 60 Idaho 680, 95 P.2d 575; Nelson v. Inland Motor Freight Co., 60 Idaho 443, 92 P.2d 790; Harp v. Stonebraker, 57 Idaho 434, 65 P.2d 766.

The appellant contends that the plaintiffs were put on inquiry; it was their duty to make a reasonable investigation, and that the plaintiffs had constructive notice of the location of the street. This based on the fact that they were furnished with an abstract which showed the plat of the block sold and the location of Locust Street.

The defendant showed the plaintiffs a fence about 70 feet north of the true line and told the plaintiffs the street was north of the line indicated. The fact that the abstract showed a street which the plaintiff was told existed at the wrong location would not be sufficient to require the plaintiffs to assume the line was different than that indicated by the defendant, and they had a right to believe that the defendant knew the true boundary of the land he was selling and to rely on such representation.

Where one makes representations as to the boundary lines of property which...