Lundy v. Surls

• Decision Date: 23 November 1909
• Citation: 123 N.W. 337,144 Iowa 670
• Parties: LUNDY v. SURLS.
• Court: Iowa Supreme Court

144 Iowa 670

123 N.W. 337

LUNDY

v.SURLS.

Supreme Court of Iowa.

Nov. 23, 1909.

Appeal from District Court, Hardin County; W. D. Evans, Judge.

Action for damages resulted in a verdict for plaintiff and judgment thereon. The defendant appeals. Reversed.Kenyon, Kelleher & O'Conner and Ward & Williams, for appellant.

Lundy & Wood, for appellee.

LADD, J.

The plaintiff exchanged certain property in Eldora for the N. W. fractional 1/4 of section 30 in township 90 N., of range 20 W. of fifth P. M., and charged that defendant orally represented that the tract was 156.65 acres, whereas it actually measured but 132 acres, and because of such difference demanded damages. In the course of the negotiations the defendant upon request produced an abstract of title with caption: “Abstract of Title to the following described premises situated in the county of Franklin, state of Iowa, to wit: The northwest quarter of section (30) thirty, township (90), range (20) twenty, containing 156.69 acres according to the original entry book.” The sixth and twenty-second transfers also recited “containing 156 69/100 acres,” the seventh that number “more or less,” and in others the quarter was described as fractional. There were but 137.22 acres. The plaintiff testified that defendant then said the number of acres was as indicated in the abstract, and this was repeated after going into the house, while defendant denied having said anything at the time, but testified to stating in the house that the tract contained from 134 to 137 acres. Each was somewhat corroborated.

With reference to the abstract the court instructed the jury: “Such abstract of title contains a statement to the effect that the tract in question contains 156.69 acres. If you find that the defendant delivered such abstract to the plaintiff at the time of the negotiations between them, and that at the time he so delivered such abstract he knew that it contained such statement concerning the acreage, and if the plaintiff at the time read such statement in the abstract, then the delivery of such abstract under such circumstances would amount to a representation on the part of the defendant that the tract in question did contain 156.69 acres. But, if you find that the defendant, Surls, orally informed the plaintiff that the tract in question contained a less number of acres than there was shown upon such abstract, then such oral statement would prevail, and in such case the delivery of the abstract...