McGibbons v. Wilder

• Decision Date: 17 October 1889
• Citation: 78 Iowa 531,43 N.W. 520
• Parties: MCGIBBONS v. WILDER.
• Court: Iowa Supreme Court

78 Iowa 531

43 N.W. 520

MCGIBBONS

v.WILDER.

Supreme Court of Iowa.

Oct. 17, 1889.

Appeal from district court, Woodbury county; C. H. LEWIS, Judge.

Action at law to recover damages for alleged false and fraudulent representations made by the defendant to the plaintiff, by which, it is claimed, plaintiff was induced to purchase certain real estate with a mistaken belief as to its location. There was a trial by jury, which resulted in a verdict and judgment for the defendant. Plaintiff appeals.Hallam & Hallam, for appellant.

J. P. Blood, for appellee.

ROTHROCK, J.

1. Two actions were commenced by the plaintiff against the defendant for false representations as to the location of two tracts of land. The actions were consolidated and tried as one. The court, in its instructions to the jury, directed a verdict for the defendant as to one of the actions. No complaint is made by the plaintiff of this ruling of the court, and no consideration need be given to that cause of action. The cause submitted to the jury was based upon alleged false and fraudulent representations as to the location of a tract of land described as the W. 1/2 of block 52, in Rustin & Co.'s addition to Sioux City. The court submitted certain special interrogatories to the jury in connection with the instruction. The following is a copy of said interrogatories, with the answers returned by the jury: “(1) Did the defendant, Wilder, just prior to the purchase of the west half of block 52, Rustin & Co.'s addition, by plaintiff, make to plaintiff's husband, while he was acting as her agent, the representations and statements which plaintiff in her petition says defendant did make to him? Answer. Yes. (2) Did defendant, prior to the purchase of the west half of said block 52, make to the plaintiff herself the statements and representations which she avers in her petition he did make to her? A. Yes. (3) Did defendant, Wilder, just before the purchase of said block 52 by plaintiff, designate a corner as the corner of said block 52, and did he designate a tract as block 52, which corner and tract were not the true corner and block? A. Yes. (4) If he did make the statements and representations as claimed by plaintiff, and designate the corner and tract as claimed by her, then were such representations, statements, and designations false? and did he then know them to be false? A. Yes. A. Yes. (5) If defendant made the representations, statements, and designations as plaintiff claims, then did plaintiff believe the same to be true? and, second, if she did so believe, did she rely upon the same, and by reason thereof purchase the west half of block 52? A. Yes. (6) If the defendant made the statements and representations, and designated the corner and tract, as plaintiff claims, then could the plaintiff, by herself or husband, by the exercise of reasonable diligence, have ascertained the truth with respect to such statements, representations, and designations? A. Yes. (7) If defendant pointed out to plaintiff's husband a tract as the west half of block 52 which in fact was not said west half of block 52, then what, at said time, was the difference in value between the real west half of block 52, Rustin & Co.'s addition, and the tract by the defendant designated as such west half of said block? A. $300. C. H. MILVERSTED, Foreman.” It will be observed by the answers to the interrogatories that the jury found for the plaintiff upon every fact essential to a recovery on the ground of fraud, except that, in answer to the sixth question, it was found that the plaintiff or her husband, by the exercise of reasonable diligence, could have ascertained the truth with respect to the false representations. This finding of the jury was doubtless based upon an instruction of the court which, upon the question of reasonable diligence, was as follows: “If the defendant made the representations, statements, and designation as to corner and tract of block as by the plaintiff in her petition alleged, and the same were false, and if the plaintiff had ready means of information as to the facts with reference thereto, or by reasonable diligence could have obtained the same, it was her duty to have done so, and not have relied upon the statements of defendant; and if she had such means of information, and failed to exercise and use the same, and wholly relied upon defendant's statements, representations, and designation, and by reason thereof made the purchase, and was damaged, still she cannot recover.”

The only real question in the case is whether there were any facts attending the transaction complained of which warranted the giving of this instruction, and whether the jury were authorized, from the evidence, in finding, in effect, that the plaintiff could not recover because she did not exercise reasonable diligence to ascertain the facts as to the location of the land. It appears from the evidence that the defendant was at one time the owner of the land. He sold the same, and, at the time of the false representations complained of, it was owned by one Linn. Wilder was not the agent of Linn for the sale of the property. One Ferris was Linn's agent, and ...