Nichols v. Wimer

• Decision Date: 02 May 1921
• Docket Number: No. 13979.,13979.
• Parties: NICHOLS v. WIMER.
• Court: Missouri Court of Appeals

230 S.W. 343

NICHOLS v. WIMER.

No. 13979.

Kansas City Court of Appeals. Missouri.

May 2, 1921.

Appeal from Circuit Court, Pettis County; H. D. Shain, Judge.

"Not to be Officially Published."

Action by Eugene Nichols against J. H. Wimer. From a judgment for defendant, plaintiff appeals. Affirmed.

Wilkerson & Barnett, of Sedalia, for appellant.

George F. Longan, of Sedalia, for respondent.

BLAND, J.

This is an action in equity to rescind a contract and to recover the sum of $1,000 paid thereon. There was a judgment for the defendant, and plaintiff has appealed.

The facts show that on April 12, 1920, J. H. Wimer entered into a written contract with Eugene Nichols for the sale of 70 acres of land situated in Pettis county, Mo. On the signing of the contract the sum of $1,000 was paid to Wimer as a part of the agreed purchase price of $10,000. The sale was negotiated through one Parker, a real estate agent representing Wimer. Parker took Nichols to Wimer's farm, and Nichols indicated that he would purchase 60 acres of it. This proposition was submitted by Parker to Wimer, and the latter agreed to sell the 60 acres, provided that Nichols would buy 10 acres of unfenced timber land,, which was located three-fourths of a mile east and a quarter or a half mile south of the 60 acres. This 10-acre tract was a rectangular piece of ground, and many years before its sale to Nichols there had been established a public road running north and south, touching its southwest corner, and running east and west therefrom. Neither the north and south nor the east and west road ran along or was contiguous to any part of the land in question, except the southwest corner of the same. The road as used for at least 20 years proceeded from the south to the north toward said corner, but a short distance before reaching the same the traveling public, in turning toward the east into the east and west road, "cut the corner" and skirted a bluff, on account of the bluff and low marshy place in the line of the north and south road, so that the road as it was actually traveled did not reach the corner of the tract, and did not approach said corner nearer than 75 feet. In cutting the corner the traveled road traversed the land of one McTague, and left a strip of land 50 to 60 feet wide, belonging to McTague, between the traveled portion of the road and the public road as it had been established. The road, both where it had been originally established and where it was traveled, was open, and unfenced. The petition pleads that Parker falsely represented to Nichols that said 10-acre tract "came up to, joined, or abutted said public road in its present actual location."

The evidence shows that the road as established had not been traveled for more than 20 years, that the public had used the road as it was actually traveled for that length of time, and that the road overseer had performed work on the road as it was actually traveled. McTague testified that the bluff was about 60 feet high; that it would be impossible for people to travel that part of the road originally established with a horse and buggy, or an automobile, bemuse of brush and timber and the bluff and swamp.

Plaintiff testified that Parker, prior to the execution of the contract, took Nichols to the curve in the road and said to him, "Your land comes right up here to the road;" that the swamp in the corner had water in it, and that they could not "get in there"; that he (Nichols) did not "know anything about where the actual metes and bounds of the land in controversy were"; that he believed the statement of Parker in reference to the matter, and entered into the contract the next day, relying upon the representations made by him. Nichols afterwards found that the 10 acres of land did not abut the road as actually traveled. He further testified that he told Parker, before he went out to see the land, that he would not buy land off of the road; that he did not talk to Wimer himself in regard to the matter, and that Wimer did not tell him anything in reference to it. Nichols further testified that he desired to get a loan on the land, but failed, because the 10 acres did not abut the traveled road.

Parker testified that he took Nichols out to the land and "stopped right on the corner"; that they got out of the automobile and "walked down in this 10 acres of timber," and "I told him [Nichols] that his 10 acres of timber lay right in this corner"; that Nichols asked him, when they got into the timber, "Where is the lines of this farm?" and Parker replied, "I don't know; I don't think there is even a fence around it." Parker denied telling Nichols that the 10 acres came up to the traveled road. He testified that he never heard of such a claim until several months afterwards. On cross-examination Parker was asked if, two months after the trade, Nichols and one Sims did not see him in La Monte, where Nichols asked him, "Didn't you sell this land up to the county road as it now is?" and if the witness didn't answer, "I sure did." Parker denied that such a question was asked him, or that such an answer was given. He was then asked if it was not a fact that after the deal was made he did not ask Mr. Porter to...