Niebels v. Howland
| Citation | 106 N.W. 337,97 Minn. 209 |
| Decision Date | 26 January 1906 |
| Docket Number | 14,596 - (177) |
| Parties | ALBERT J. NIEBELS v. B. J. HOWLAND |
| Court | Minnesota Supreme Court |
Action in the district court for Otter Tail county to recover $1,000 as the stipulated price for goods sold and delivered. Defendant, answering, set up a written contract between the parties for the exchange of land for the goods and alleged a breach thereof by plaintiff. Plaintiff replied alleging fraud and misrepresentation on the part of defendant, justifying plaintiff's refusal to accept the land in payment. The case was tried before Baxter, J., and a jury, which rendered a verdict in favor of plaintiff for $691.05. From a judgment entered pursuant to the verdict, defendant appealed. Affirmed.
Exchange of Property.
When an owner of personal property agrees to sell the same at a stipulated amount, in consideration for real estate to be conveyed to him, and delivers such property to the purchaser who fails to pay for it in the manner provided, the seller may maintain an action for the recovery of the stipulated price.
Action for Price -- Pleading.
If in such action the purchaser pleads, as a defense, that he was at all times ready and willing to perform the contract of purchase and had tendered proper conveyance in payment, and that the seller had refused to accept the same, the seller may reply to such answer by admitting the contract, and allege that it was entered into by reason of the fraudulent representations of the purchaser and for that reason was not performed. Such reply is by way of confession and avoidance only to the new matter set up in the answer, and is not a departure from the complaint.
Fraud.
The evidence in this case was sufficient to justify the jury in finding that material and substantial misrepresentations were made by the purchaser in respect to the nature of the property to be conveyed to the seller, who was justified in refusing to accept the same in payment.
C. M Johnson and Houpt & Field, for appellant.
E. E. Corliss, for respondent.
The complaint alleges that respondent sold and delivered to appellant a stock of hardware at the agreed price of $1,000 and that the same has not been paid.
The answer admits the sale and delivery of the stock of hardware, but denies that the agreed price was $1,000, or that appellant promised to pay for it in any other manner than in accordance with the terms of a certain written contract, the purport of which was set out in the answer, to the effect that appellant, being the owner of a section of land in Becker county, subject to a mortgage of $1,200, and also subject to a sale contract, exchanged his interest in the land, subject to the mortgage and contract, in consideration of respondent's stock of hardware. The answer further states that in pursuance of the contract the parties invoiced the stock of hardware and mutually agreed that, for the purposes of trade, the hardware be estimated at the price of $1,000; that respondent delivered the hardware to appellant in accordance with the agreement, and that appellant took possession of the same; that appellant complied with his terms of the agreement and executed and tendered to respondent a good and sufficient warranty deed of the premises, subject to the mortgage and contract of sale, and requested respondent to execute and deliver to appellant his promissory note for $1,027.90, which was the difference between the hardware stock at $1,000 and respondent's interest in the land, subject to the mortgage and sale contract, but that respondent had failed and refused to accept the deed and to execute the mortgage.
In reply, respondent admitted the execution of the contract, and alleged that appellant, with intent to defraud, represented that he was the owner of the land described in the answer consisting of three hundred forty three acres; that it was of the value of $5,500, for which sum appellant had contracted in writing to sell the same to one Frank W. Day and others; that the purchasers had paid thereon $2,500 in cash, and that there was due appellant from such purchasers the further sum of $3,227.90, including interest, which amount was payable according to three promissory notes, due in 1905, 1906, and 1907; that all of the signers of the notes and the contract were in every way personally responsible; that the notes were good, bankable paper which could be easily sold for the face value; that the land was subject to a prior mortgage of $1,200; and that appellant's equity in the land was of the value of $2,027.90. The reply further alleged that respondent relied upon such statements and representations as true, and accordingly entered into the contract to sell the hardware to appellan...
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