Moore v. Scott
| Decision Date | 03 March 1896 |
| Docket Number | 5983 |
| Parties | R. A. MOORE, APPELLANT, v. C. R. SCOTT ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court of Buffalo county. Heard below before HOLCOMB, J.
AFFIRMED.
R. A Moore, pro se.
References Hoock v. Bowman, 42 Neb. 80, 87; Mead v Bunn, 32 N.Y. 275; Olson v. Orton, 28 Minn. 36; Harvey v. Smith, 17 Ind. 272; Wilson v. Yocum, 42 N.W. 446 [Ia.]; Armstrong v. Helfritch, 51 N.Y. 856; McClellan v. Scott, 24 Wis. 87; Simar v. Canaday, 53 N.Y. 298; Syms v. Benner, 31 Neb. 593; McKnight v. Thompson, 39 Neb. 752; King v. Sioux City Loan & Investment Co., 39 N.W. 919 [Ia.]; Galloway v. Merchants Bank of Neligh, 42 Neb. 259; Barnard v. Roane Iron Co., 2 S.W. [Tenn.] 21; Union Central Life Ins. Co. v. Huyck, 32 N.E. 580 [Ind.]; Fisher v. Mellen, 103 Mass. 505; Busterud v. Farrington, 31 N.W. 361 [Minn.]; Billings v. Aspen Mining & Smelting Co., 2 C. C. A., 260; Wheeler v. Smith, 9 How. [U.S.] 55; Smith v. Richards, 13 Peters [U.S.] 26; Berrer v. Moorhead, 22 Neb. 691; Singer Mfg. Co. v. Doggett, 16 Neb. 611; Evarts v. Smucker, 19 Neb. 43; Carmichael v. Dolen, 25 Neb. 335; Klosterman v. Olcott, 25 Neb. 387; Hale v. Wigton, 20 Neb. 83; Holcomb v. Noble, 37 N.W. 497 [Mich.]; Bridge v. Penniman, 12 N.E. [N.Y.] 19; Reeve v. Dennett, 11 N.E. 938 [Mass.]; Baughman v. Gould, 45 Mich. 483; Wagner v. Lewis, 38 Neb. 320; Groppengiesser v. Lake, 36 P. 1036 [Cal.].
C. R. Scott, contra.
In January, 1888, a contract was entered into between Moore and Scott, whereby Scott assigned to Moore his rights under a contract for the purchase of 1,600 acres of land in Lincoln county. The consideration for this transaction was a conveyance by Moore to Scott of a lot in the city of Kearney, the transfer of a note for $ 300 made by F. H. Gilcrest & Co., a note of Moore's to Scott for $ 50, $ 5 in cash, and a box of cigars. This action was brought by Moore to rescind the contract. The Kearney Savings Bank and F. H. Gilcrest were made defendants under allegations that the bank held the Gilcrest note and was about to collect it and pay its proceeds to Scott, the object of joining them being to obtain an injunction against the payment of the note to the bank by Gilcrest and its collection and payment of the proceeds to Scott. The Bandera Flag Stone Company intervened, claiming to be a bona fide purchaser from Scott of the Gilcrest note. The rights and claims of all the defendants except Scott may, however, be disregarded as the case turns upon the issues joined between Moore and Scott and the decree thereon. The court found the issues generally in favor of the defendants, and from a decree of dismissal entered upon that finding the plaintiff prosecutes an appeal.
The ground upon which rescission was sought by Moore was false representations in regard to the character of the land, alleged to have been made by Scott. These were, in brief, that the land was nearly all good tillable land, a little rolling, but with valleys in it, and covered with a good growth of grass; that there was not enough sand upon it to prevent its being good farming land; that water could be obtained at a depth of fifty or sixty feet, and that the land was actually worth $ 4.50 an acre. It may be assumed as established that the land was not in these respects as plaintiff claims it was represented. Scott, however, denies that he made such representations, but avers the fact to be that he informed the plaintiff that he had never seen the land and had no personal knowledge of its character, quality, or value, and would not be responsible for its character or quality upon that account. This was the controlling issue presented by the pleadings, as determined by their legal effect. As determined by their volume, the issues presented were more of the character indicated by the following excerpts from the answer and reply: The answer pleads that Scott was at the time in Kearney attending court, and that "while so in attendance upon said court, said plaintiff, through the kindness of his heart and realizing that this defendant was a stranger in that part of God's heritage, kindly took this defendant in and gave him meat and drink; that this defendant was then wholly unacquainted with the ways that are dark and the tricks that are vain on the part of said plaintiff, partook of his hospitality, being captivated by his blandishments and pretexts of friendship for the stranger." This allegation is met in the reply by the following: "Admits that part of the answer where the defendant alleges that he was given meat and drink by this plaintiff, and this plaintiff alleges that it was the most expensive meat and drink he ever dealt out to friend or foe; that relying upon the former friendship existing between this defendant and plaintiff, and not realizing that he was a wolf in lamb's clothing, and supposing that he was a friend, this plaintiff invited him into his home and sat down with him in his parlor and introduced him to his family, and that many a time since he has had reason to repent in sackcloth and ashes that he ever proffered said act of friendship and kindness; that the said defendant sat at his table, broke his bread and ate of his salt and drank of his wine and smoked his Havana cigars." Disregarding such issues as these and the evidence which incidentally crept in in an attempt to support them, the case may be summarized by stating that the plaintiff's evidence tended strongly to support the allegations of his petition; while the evidence on the part of the defendant was equally positive to the effect that the defendant had at all times disclaimed personal knowledge of the character and value of the land; but that he had told the plaintiff that certain persons, whom he deemed reliable and to whom he had been referred by his own vendor, had made statements in regard to the land substantially similar to those which the plaintiff charged the defendant with making. On this conflicting evidence the finding of the trial court must be accepted as conclusive of the facts in favor of the defendant; and the question is, therefore, assuming those facts to be in accordance with defendant's testimony, did the plaintiff make out his case?
It is true, as contended by plaintiff, that this court has repudiated the doctrine that in order to make out a case of deceit, it must be shown that the defendant knew his representations to be false. The scienter is not material. (Foley v. Holtry, 43 Neb. 133, 61 N.W 120; Phillips v. Jones, 12 Neb. 213; Hoock v. Bowman, 42 Neb. 80, 60 N.W. 389; Johnson v. Gulick, 46 Neb. 817, 65 N.W. 883.) But in all of these cases it is either expressly stated or necessarily implied that in order to be actionable the representations must have been made as a positive statement of existing facts. Now in this case, assuming, as we must, that the defendant's account of the transaction is correct, the fact represented was that persons whom the defendant deemed reliable so represented the land to him. The defendant did not represent these matters in regard to the character of the land as facts within his knowledge, but he affirmatively disclaimed all knowledge in relation thereto. There is a class of cases where a party to a contract refers the other party to a third person for information, where it is held that in so doing he makes...
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