Lovejoy v. Isbell

• Citation: 47 A. 682,73 Conn. 368
• Court: Supreme Court of Connecticut
• Decision Date: 18 December 1900
• Parties: LOVEJOY v. ISBELL.

47 A. 682

73 Conn. 368

LOVEJOY

v. ISBELL.

Supreme Court of Errors of Connecticut.

Dec. 18, 1900.

Appeal from superior court, New Haven county; Ralph Wheeler, Judge.

Action by Joscelyn E. Lovejoy against George A. Isbell for deceit in exchange of property. Verdict and judgment for plaintiff. Defendant appeals. Affirmed.

The complaint is as follows: "First Count. (1) Joscelyn E. Lovejoy and Samuel C. Lovejoy were married in the city, county, and state of New York on the 24th day of December, 1883. On the 29th day of April, 1895, the defendant was a dealer in real estate in the town and county of New Haven, state of Connecticut, and carried on the business of buying, selling, and exchanging real estate and personal property there situated and elsewhere. (2) On that day the defendant represented to Joscelyn E. Lovejoy that he owned thirty acres of good farming land, situated in the town of Hamdon, county of New Haven, state of Connecticut, which land he offered to exchange for certain personal property of Joscelyn E. Lovejoy, sit uated in the city of Yonkers, county of Westchester, state of New York, and consisting of float, boats, fuuiture, etc. (3) Afterwards, on the 11th day of May, 1895, Joscelyn E. Lovejoy, believing the representations of the defendant that he could and would give her a good title to this land, did convey and deliver to the defendant the float, boats, furniture, etc., to the value of fifteen hundred dollars, in exchange for the farming land. (4) In fact, the representations of the defendant to Joscelyn E. Lovejoy were false. He did not then own the land, nor has he since acquired a title to it, nor has he caused it to be conveyed to her. (5) The defendant made these false representations to Joscelyn E. Lovejoy willfully and maliciously, well knowing them to be false, and with the intent on his part of inducing Joscelyn E. Lovejoy to convey her personal property to him, and to defraud her. Second Count. (1) Same as paragraph 1 of the first count. (2) Same as paragraph 2 of the first count. (3) Afterwards, on the 11th day of May, 1895, Joscelyn E. Lovejoy, believing the representations of the defendant that the land was good farming land and contained thirty acres, did convey and deliver to the defendant the float, boats, furniture, etc., to the value of fifteen hundred dollars, in exchange for the farming land. (4) in fact, the representations of the defendant to Joscelyn E. Lovejoy were false. The whole piece of land was unsuitable for farming, and contained only eighteen and one-quarter acres, instead of thirty. (5) Same as paragraph 5 of the first count. The plaintiffs claim twenty-five hundred dollars damages." The answer is a general denial.

The finding of the court shows the state of evidence and claims upon the trial, so far as material to the questions decided, to have been substantially as follows: The plaintiff offered evidence to prove, and claimed to have proved: In April, 1895, in answer to an advertisement inserted by her in the New York papers offering a boat house, float, sailboat, etc., in exchange for a farm, cottage, or improved lots, the plaintiff received from the defendant the following letter, dated at New Haven, Conn.: "Have a farm near the city for your float, boats, etc. If you are interested, send full particulars." The plaintiff wrote for information in regard to the farm, and received the following answer: "Have farm of 30 acres about 1 1/2 miles from depot, some seven miles from this city; fine stream of water; large 2-story frame house, in good condition; large barn. There is a mortgage on this place for $1,500, on which there has been some $500 paid, leaving about $1,000 now due on mortgage, which can remain as long as desired, if interest is kept paid. If you think this would suit you, come up and see it. I will try and make a fair deal with you. Take night boat from Peck Slip; will land you here in morning. You can go back at night. Excursion ticket, $1.50. You will lose but one day. I will take you out and show the farm. Or come by rail; cost three dollars, round trip. If you are interested, come up Wed. night or Friday night. I shall be out of town Friday, but would show you the farm Thurs. or Sat. Let me hear if I shall expect you." In reply to another letter from the plaintiff, asking for a more detailed description of the property, its value, the mortgage, etc., the defendant wrote under date of May 2, 1895: "Your favor received. I think $1,050 is the exact amount of the mortgage at present. No other mortgage on the property. 8 or 9 rooms in the house. Cellar under the house. It is now rented. All kinds of crops could be grown. Some fruit trees. Mortgage can be transferred. I have not seen your property. Could not say, exactly. Would like to have you come up and see it. I live at 273 Norton St. If you take car when you leave the boat, ask conductor to leave you at Norton St. You will get out to the house soon enough to take breakfast with me. Hoping to see you, I remain, etc." A week later the defendant's agent called on the plaintiff in New York, inspected her property advertised for exchange, asked her to visit the defendant for the purpose of seeing his farm, and told her that the farm was worth $3,000. At her first interview with the defendant, the plaintiff asked him why he had not replied to her questions as to the value of the farm, and told him his agent had said it was worth $3,000. The, defendant answered, "Yes; I guess it is;" adding that he did not know the value of real estate. The defendant had been in the real-estate business for the past 30 years, and had always made a specialty of farms. The farm conveyed by the defendant to the plaintiff, without any consideration of the mortgage of $1,029, was worth only $800. On May 20, 1898, the plaintiff came to New Haven, and went with the defendant to Hamden, where his farm was situate. It was then occupied by a tenant, who called the defendant's attention to the fact that 19 acres across the stream, opposite the house, had been sold, and the defendant said that he knew it. Nevertheless he pointed out to the plaintiff (who had not heard the tenant's statement) a part of this land as belonging to his farm. After inspecting 4 or 5 acres of the house grounds, the plaintiff told the defendant that she did not care to trade; that tilings were not as represented; and the defendant replied, "But you haven't seen it all yet." He then pointed in the direction of a lot called the "Dudley Lot,"—a piece of about 10 acres, high and level, and lying on the side of the stream opposite the house, adjoining the 19-acre piece which had been sold off. This piece had never been a part of the farm. The defendant then drove the plaintiff up a rise, and at the top viewed the Dudley lot, and discussed the advantage of building a house there. The plaintiff remarked that this lot gave a different aspect to the farm, and under the circumstances she was willing to trade even. The only portion of the farm which the plaintiff examined was the 4 or 5 acres of the house grounds. The two pieces across the stream from the house, which were worth $75 an acre, and did not belong to the farm, were marked on their western boundary by a fence which the defendant referred to as a boundary of his farm. The farm, as conveyed to the plaintiff, contained only 18 1/4 acres, and lay, for the most part, to the east of the house grounds, where it was rocky and unsuitable for farming. The following day the defendant went to New York and examined the personal property of the plaintiff, which was worth $1,500. A trade was then agreed to, and the defendant gave the plaintiff a deed of the farm in exchange for the personal property. The deed described the land conveyed as "containing thirty acres, more or less," and as "subject to a mortgage of one thousand and twenty-nine dollars ($1,029), which the grantee hereby assumes and agrees to pay." The boundaries given in the deed did not include the 10-acre Dudley lot, nor the 19-acre lot above mentioned. The plaintiff read the deed, but the reading made no impression on her mind that it did not include the two lots which had been pointed out to her as a part of the farm. She did not even know the points of compass. The deed presented to the plaintiff was one from George W. Thomson, grantor, with a blank space left for the name of the grantee, and was dated March 6, 1894. The defendant explained that he had received the property from Thomson in a trade, but had the deed left with a blank for the grantee's name, so that later he might fill in any name desired. As the plaintiff knew nothing of Thomson, she suggested that the defendant give her some sort of writing to show that she had in fact purchased the property from him, and for this purpose they went to the nearest notary public. It was not deemed necessary for the defendant to give any such writing. The plaintiff's name was filled in as grantee, and the deed delivered to her.

The defendant offered evidence denying that he pointed out to the plaintiff the 19-acre lot and Dudley lot as a part of his farm, and tending to prove that the deed from Thomson was delivered to the defendant in exchange for some of his property, and that it was agreed that said Thomson should execute the deed with the name of the grantee omitted, with a parol agreement that when the defendant should want the conveyance to be completed to any person, he (the defendant) had authority to fill in the name of that person as grantee, and thereafter to deliver the deed to such person; also, tending to show that the plaintiff consulted a lawyer, who advised her that the deed was all right, and tending to show that the plaintiff looked ] at the records pertaining to the farm at the town clerk's office in Hamden, and inquired of the town clerk as to the condition of the title and value of the place, and tending to show that the defendant had...