Lundy v. Surls

• Citation: 123 N.W. 337,144 Iowa 670
• Parties: E. H. LUNDY v. W. S. SURLS, Appellant
• Decision Date: 23 November 1909
• Court: United States State Supreme Court of Iowa

123 N.W. 337

144 Iowa 670

E. H. LUNDY v. W. S. SURLS, Appellant

Supreme Court of Iowa, Des Moines

November 23, 1909

Appeal from Hardin District Court.--HON. W. D. EVANS, Judge.

ACTION for damages resulted in a verdict for plaintiff and judgment thereon. The defendant appeals. Reversed.

Reversed.

Kenyon Kelleher & O'Conner and Ward & Williams, for appellant.

Lundy & Wood, for appellee.

LADD J. EVANS, C. J., took no part.

OPINION

LADD, J.

The plaintiff exchanged certain property in Eldora for the northwest fractional one-fourth 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 one hundred and fifty-six and sixty-five one hundredths acres, whereas it actually measured but one hundred and thirty-two 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) ninety, range (20) twenty, containing one hundred and fifty-six and sixty-nine one-hundredths acres according to the original entry book." The sixth and twenty-second transfers also recited "containing one hundred and fifty-six and sixty-nine one-hundredths acres," the seventh that number "more or less," and in others the quarter was described as fractional. There were but one hundred and thirty-seven and twenty-two one-hundredths 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 one hundred and thirty-four to one hundred and thirty-seven 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 one hundred and fifty-six and sixty nine one-hundredths 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 one hundred and...