Miller v. Conn

• Decision Date: 14 March 1922
• Docket Number: No. 34395.,34395.
• Citation: 186 N.W. 902,193 Iowa 458
• Parties: MILLER v. CONN.
• Court: Iowa Supreme Court

193 Iowa 458

186 N.W. 902

MILLER

v.CONN.

No. 34395.

Supreme Court of Iowa.

March 14, 1922.

Appeal from District Court, Boone County; R. M. Wright, Judge.

Action to recover damages for shortage in acreage of a farm purchased by appellee from appellant. Facts are set out in the opinion. Jury returned a verdict for plaintiff in the amount of $2,745, with interest from March 1, 1920, on which judgment was rendered, and from which defendant appeals. Modified and affirmed.Dyer, Jordan & Dyer, of Boone, for appellant.

T. J. Mahoney and F. L. Mackey, both of Boone, for appellee.

ARTHUR, J.

In February, 1920, appellee, then a resident of Estherville, Iowa, came to Boone, Iowa, with the intention of buying a farm if he could find one that was satisfactory. He was accompanied by a real estate dealer named Kennedy. They were met by one Cooper, of Boone, also a real estate dealer, who showed them a farm, but appellee did not deal for it. While in Cooper's office, another real estate agent named Page came in. Cooper told Page what appellee wanted, and asked if he knew of any farm for sale that might meet the requirements. Page suggested a farm owned by appellant, and appellee, with Cooper and Kennedy, went to the farm to examine it. Then they returned to Cooper's office, where appellant, in response to a telephone message, met them. Appellant priced his farm at $50,000. They all went to the farm again, and again returned to Cooper's office, and a contract was written and signed by the parties, by which appellant sold to appellee the farm at the agreed price of $50,000 on the terms set forth in the contract. Afterwards appellee paid appellant for the farm, in accordance with the terms of the contract, with the exception of $200 of the purchase price, which was to be withheld until some defect in the title was cured, and about which there is no controversy in this case.

This action is based on fraudulent representations as to the acreage of the farm. Plaintiff alleged, and offered evidence tending to prove, that defendant represented to him that the farm contained 100 acres, including the highways, and that the land inclosed within the fences contained between 94 and 95 acres; that said representations were false, and the other necessary premises of a case based on such fraudulent representations. Defendant denied making representations of any kind to the plaintiff, showing or intending to show that the farm contained 100 acres, and averred that the farm was sold as an entirety for the sum of $50,000, and that the price was not based on $500, or any other sum, per acre. Defendant further alleged that, before the contract of purchase was signed, plaintiff was fully advised that the land contained approximately 95 acres; that plaintiff had told defendant that the tract contained approximately 95 acres, and that plaintiff was fully advised before he acceptedthe deed to the property the exact acreage it contained, and accepted the deed with full knowledge of those facts, without objection, and executed a mortgage back to the defendant, as provided in the contract, for part of the purchase price, in which mortgage it was stated that the tract contained approximately 95 acres; that at all times before plaintiff agreed to purchase and did purchase said property he was aware as to the number of acres said tract contained, and that plaintiff was estopped from claiming that the farm contained a less number of acres.

Replying, plaintiff averred with reference to the mortgage given by plaintiff to defendant on the premises that he executed such mortgage in accordance with the terms of his contract; that the mortgage contained the same description as was contained in the deed received from the defendant, and in said description the distances were given in part only by chains and links, and this plaintiff did not know at said time the description of said land in said deed and mortgage covered less than 95 acres; that the description so given was insufficient to apprise the plaintiff of the acreage. Further replying, plaintiff averred that, even if he had known that the description in the mortgage and deed contained less than 95 acres, he at said time had no knowledge or information as to what part, if any, of the land included in said description was in the roads adjoining said premises, and at the time of the execution of said deed and mortgage the defendant again expressly stated to plaintiff that there were more than 95 acres inside of the fences, and that the premises contained 100 acres, including the roads.

Under the issues thus joined the case was submitted to a jury, the court instructing that the burden was on the plaintiff to establish that the defendant represented to plaintiff that the land purchased contained 100 acres including the highways, and that the land inclosed within the fences contained between 94 and 95 acres, and the other matters necessary to make out the case based on fraudulent representations. The jury returned a...