Odell v. Story
| Decision Date | 23 April 1908 |
| Docket Number | 15,134 |
| Citation | 116 N.W. 269,81 Neb. 437 |
| Parties | CHARLES ODELL, APPELLEE, v. JAMES C. STORY, APPELLANT. [*] |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Hitchcock county: ROBERT C. ORR JUDGE. Reversed.
REVERSED.
W. S Morlan and Boyle & Eldred, for appellant.
Perry & Lambe, contra.
DUFFIE C. EPPERSON and GOOD, CC., concur.
In January, 1906, the plaintiff purchased from the defendant 320 acres of land in Hitchcock county, Nebraska. The land purchased is the southwest quarter of section 31, the west half and the southeast quarter of the northwest quarter, and the southwest quarter of the northeast quarter of section 31, in township 4, of range 34 west of the sixth P. M. It will be noticed that the south boundary line of the land purchased is one-half mile in length. The plaintiff in his petition alleges that the defendant pointed out and represented to him that the southeast corner of the southwest quarter of section 31 was 80 rods east of its true location, and that the land he was selling him included a tract of level farming land lying east of the land actually sold and conveyed; that he represented the land to contain 200 acres of good level land with deep soil well adapted to corn and wheat raising; that he was a stranger to that part of the country, had no knowledge of the land he was purchasing, and, relying upon the defendant's representation, paid $ 3,100 for said land; that the land sold and conveyed to him did not contain to exceed 60 or 70 acres of level farming land, and was worth $ 2,500 less than the land pointed out, and which he supposed he was buying. The defense was a denial of any false representations relating to the boundary of the land, and, further, that plaintiff before making his purchase examined and investigated the location, boundary and character of the land and character of the soil, and that means of knowledge of all matters were open to the plaintiff and equally available to both parties. The jury awarded the plaintiff $ 1,600 damages, and from a judgment entered upon the verdict the defendant has appealed.
The testimony of the plaintiff and of several witnesses who testified in his behalf tended strongly to establish the allegations of the petition, but the defendant testified, in substance, that he showed the plaintiff a fence on the west boundary line of section 31, as well as the south line of said section, and told him and those with him that the southeast corner of the southwest quarter was one-half mile east from the fence on the west line, and denied locating the southeast corner or pointing it out. The law in this state seems to be well settled that a purchaser of real estate has a right to rely upon representations made by his vendor relating to the location of his property, when the facts concerning which such representations are made are unknown to the vendee. Hoock v. Bowman, 42 Neb. 80, 60 N.W. 389. In that case, Roberts v. French, 153 Mass. 60, 26 N.E. 416, was referred to with approval. In Roberts v. French, a lot was sold at auction. It was inclosed by a fence. The auctioneer announced that he had measured the lot, and that its dimensions were as stated in the advertisement, except as to the easterly line, which was 107 feet long, and that the lot contained about 11,000 square feet. The plaintiff was familiar with the premises, and he understood that he was buying only the land inclosed by the fence, but according to his evidence he believed the statements of the auctioneer as to the length of the line and the area, and made his bid relying upon them. It was afterwards ascertained that the easterly line was in fact only 95 1/2 feet long, and that the contents of the lot was 7,760 feet instead of 11,000 feet. The action was to recover the purchase price. In the opinion it is said:
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