Moore v. McKillip
| Decision Date | 27 June 1923 |
| Docket Number | 22454 |
| Citation | 194 N.W. 465,110 Neb. 575 |
| Parties | ROBERT E. MOORE, PLAINTIFF, v. PATRICK E. MCKILLIP ET AL., APPELLEES: LOUIS A. BERGE ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: ELLIOTT J CLEMENTS, JUDGE. Affirmed.
AFFIRMED.
McCarty & Hager and P. N. Johnston, for appellants.
Albert & Wagner, contra.
Heard before LETTON, ROSE, DAY and ALDRICH, JJ., REDICK, District Judge.
This is an action in equity for the specific performance of a contract for the exchange of certain lots with an apartment house thereon, in the city of Lincoln, for 160 acres of land in Iowa. The case is presented upon a cross-petition by Louis A. and Josephine B. Berge, filed in an action to foreclose a mortgage upon the Lincoln property, in which Patrick E McKillip and others are named as defendants. For convenience the parties will be referred to in this opinion as Berge plaintiff, and McKillip, defendant.
The plaintiff alleges that on September 11, 1919, a written contract was entered into by the parties whereby plaintiff agreed to convey to defendant clear a certain 160 acres of land in Iowa, in exchange for the Lincoln property subject to a mortgage of $ 6,000; that plaintiff delivered an abstract of the land to defendant, and on June 23, 1920, executed and delivered a deed of said lands to defendant, who retained and still retains the same but refuses to convey the Lincoln property to plaintiff.
The defendant answered the cross-petition, admitting the execution of the contract, but averring "that he was thereunto induced by means of false and fraudulent representations made by the said cross-petitioners, their agents and others acting for them and in their interest," to the effect that the soil on the land so to be conveyed "was black sandy loam, productive and fit for cultivation and agricultural purposes; that 130 acres thereof was what is known as second-bottom land and the remainder first-bottom; that the Missouri river never flowed over, on or across any portion thereof and had never been nearer to said land than one and one-half miles; and was worth $ 16,000;" that said representations were false, and "that within recent years * * * all of the said land, excepting about 55 acres, had been covered by the said river and had formed a part of the bed thereof, in consequence whereof all of the said land, excepting about 55 acres, is sand, totally unproductive and unfit for cultivation and agricultural purposes, and the whole of the said land is not, and never has been, worth to exceed $ 2,000;" that the Lincoln property was worth $ 24,000; that upon discovery of the facts defendant repudiated and rescinded said contract, and now offers to return the deed and do any other act required by the court. Defendant further alleges that he signed said contract under mistake of fact as to the location, character, quality and value of said land, as above detailed, all of which, except about 15 or 20 acres, consists of white sand and gravel, subject to overflow and unfit for cultivation.
The facts alleged in the answer were put in issue by a reply, in which it was further alleged that defendant by himself and his agents examined said land and were fully advised as to its nature, location, quality and value.
Findings of fact were filed by the trial court, which may be summarized as follows: (1) That the defense of false representations was not made out, finding for plaintiff on said issue of fraud: (2) that only about 60 to 65 acres of said land were tillable, the remainder being part of the old bed of the Missouri river and of little value; (3) that the value of the land did not exceed $ 3,000, and of the Lincoln property, not less than $ 7,000 above incumbrances; (4) that at the time of entering into said contract said McKillip understood and believed that said quarter section of Iowa land contained 130 acres of good, tillable land, and that only 30 acres thereof had ever been a part of the bed of the Missouri river, and that its value was equal to or greater than the value of the Lincoln property; (5) that said understanding, belief and mistake of said McKillip was induced and caused by the statements and representations of his agents, who examined the land and on whom he relied; (6) that if the land had been as understood by McKillip it would have been worth nearly as much as the Lincoln property; (7) that upon discovery of the truth said McKillip refused to proceed with the deal and so informed plaintiff by letter of November 24, 1919; (8) that June 23, 1920, plaintiff mailed to McKillip a deed to the land, which McKillip did not intend to and did not in fact accept, and tenders the same to plaintiff.
As conclusions of law the court found: (1) That plaintiff was not guilty of fraud or misrepresentation, and McKillip was not entitled to rescind: (2) that to decree specific performance is within the legal discretion of the court; (3) that, although a contract may be legal and enforceable at law, equity will not decree specific performance thereof unless it be just and fair in all its parts and not hard or unconscionable, nor unless it was entered into without misapprehension or mistake, where it would be unjust or unfair to require such performance; (4) a general finding for defendant.
Plaintiff appeals to this court, assigning a number of errors which need not be particularized.
It would extend this opinion to an unreasonable length to quote and analyze the evidence, so we must be content to state our conclusions therefrom with such references thereto as seem necessary to sustain such conclusions.
Louis A. Berge, husband of plaintiff, was a dealer and trader in lands and other real estate, and resident in Lincoln. Patrick E. McKillip was in the same business at Humphrey, Nebraska. R. C. Alderman was a real estate broker in Omaha, not connected with either of the parties, but making deals upon commission. F. G. Kloke was in the employ of McKillip on a salary, engaged in looking up deals and inspecting properties to be dealt with.
The principals to the contract had no personal contact. The circumstances resulting in its execution were as follows. Alderman knew of Berge's ownership of the land through his connection with the deal by which Berge traded for it two tracts, one of 640 acres and the other 480 acres of land in northwestern Nebraska. He also knew of McKillip's Lincoln property from a list put out by McKillip. He suggested to Kloke that a trade might be made, and they went to inspect the land late in August, 1919, and again early in September, when Kloke, having reported to McKillip, on September 10 notified Alderman that the trade could be made. On September 11 Alderman first approached Berge on the subject, at Lincoln, and after an inspection of the apartments went to the office of Berge's attorney and had the contract prepared and signed by Berge; Alderman delivered it to Kloke, who mailed it to McKillip, and he, after executing it, mailed a copy back to Kloke.
Alderman represented no one but himself, his only interest being to secure a $ 640 commission from McKillip. Upon the occasion of the visits to the land, it seems from his evidence Alderman was very careful not to make any representations as to its character or value. He says that, when asked by Kloke how much of it was bench land, he answered: "I don't know; I never measured it; I know nothing about it, but here is your east line and there is your north line, you can tell from that." Later on he testified all but 65 or 70 acres was in the old river bed. Kloke says Alderman told him only about 15 or 20 acres were in the river bed, and he so estimated it. An unsuccessful effort was made to show that Kloke was shown the wrong land; but however this may be, it appears that he was grossly mistaken as to a number of important facts concerning the land. For example, he thought there was a two-story house and small orchard on the southeast corner of the land, but this turned out to be on adjoining property, and his estimate of 15 or 20 acres of old river-bed land was quite out of line, as it is practically beyond dispute that not to exceed 65 acres were on the bench, and of this 10 or 15 acres were very sandy.
There can be little doubt but that Kloke was materially deceived as to the vital questions concerning the land, not so much perhaps by any active misrepresentations of Alderman as by Alderman's refusal or failure to call attention to facts within his knowledge and by his own failure to exercise that degree of care and judgment, while inspecting the property which his employer,...
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