Patton v. Rapp

• Decision Date: 24 September 1937
• Docket Number: 29974.
• Citation: 275 N.W. 315,133 Neb. 308
• Parties: PATTON ET AL. v. RAPP ET AL.
• Court: Nebraska Supreme Court

275 N.W. 315

133 Neb. 308

PATTON ET AL. v. RAPP ET AL.

No. 29974.

Supreme Court of Nebraska.

September 24, 1937

Syllabus by the Court.

1. " A conspiracy, like other facts, may be proved by circumstantial evidence, and one means of proof is by showing overt acts of the individuals charged with conspiring. From the fact that different persons at different times by their acts pursue the same object, the jury may, in connection with other facts, infer the existence of a conspiracy to effect that object." Farley v. Peebles, 50 Neb. 723 70 N.W. 231.

2. Evidence examined and found, as to all defendants, to warrant submission of case to jury.

3. Verdict found to be sustained by sufficient evidence.

4. No prejudicial error found in argument to jury by plaintiffs' counsel.

Appeal from District Court, Douglas County; Leslie, Judge.

Action by William H. Patton and another against Max Rapp and others. From a judgment in favor of the plaintiffs, the defendants appeal.

Affirmed.

Gray & Brumbaugh and Fradenburg, Webb, Beber, Klutznick, & Kelley all of Omaha, for appellants.

Merrow & Murphy and O'Sullivan & Southard, all of Omaha, for appellees.

Heard before GOSS, C. J., ROSE, GOOD, and CARTER, JJ., and SPEAR and KROGER, District Judges.

SPEAR District Judge.

Action for alleged fraud and conspiracy to defraud, brought by William H. Patton and Blanche Patton, husband and wife, plaintiffs and appellees, against Max Rapp and Elsie Rapp, husband and wife, the Eagle Jewelry Company, and Joe Ban, defendants and appellants.

Plaintiffs' petition alleges that they were, on April 24, 1933, the owners of certain lots in the city of Omaha subject to a mortgage of $1,626 owned by the defendant Elsie Rapp; that the defendants Rapp at said time purchased the property and that the consideration therefor was cancellation of the mortgage and a perfect diamond weighing close to four carats. Plaintiffs say that Max Rapp induced them to go to the defendant Joe Ban, owner of the Eagle Jewelry Company, to have the diamond appraised, after Rapp had falsely told him that the stone was worth $3,000, and that Rapp and Ban conspired together to defraud plaintiffs. In furtherance of this scheme to defraud, plaintiffs claim that Ban appraised the diamond at $3,000, but that in truth it was worth only about $875, and that both Rapp and Ban knew this fact. Plaintiffs asked for damages.

Defendants answers are quite elaborate, but they really constitute a denial of the allegations in plaintiffs' petition.

A trial was had to a jury and the jury returned a verdict against all of the defendants in the sum of $2,396.73. Defendants each appeal. A great many assignments of error are made by defendants and many propositions of law are advanced by the respective parties. However, lack of space makes it imperative that we rather loosely group these contentions and discuss them generally.

Mr. Patton was 57 years old at the time of the trial and quite deaf. Mrs. Patton was 40. Patton is a blacksmith and automobile repair man, and had done work for Mr. Rapp since 1915. In 1932 Mrs. Rapp had a mortgage of $1,626 against the premises and was threatening foreclosure, so Pattons gave a deed to Mrs. Rapp with an option to redeem same within a year. Rapp, on the theory that he would sell the property, induced the Pattons to give him the option, that is, the instrument evidencing same, and refused to return same. Rapp then tried to trade the Pattons other properties for their rights under the option. Early in 1933 he began a campaign to trade the diamond for plaintiffs' option. After some negotiations the deal was consummated on April 24, 1933. Boiled down to essentials, the position of plaintiffs is that Rapp said that this was a fine blue white diamond worth $3,000, when in fact he knew it was worth only $800, thus deceiving plaintiffs, and that, in addition thereto, Rapp conspired with Ban, who also falsely and knowingly deceived plaintiffs as to the value of the jewel. Rapp's position, in short, is that he did not make these statements, and, in fact, told the Pattons that it was worth only $800; also, that there was no scheme to defraud between him and Ban. Ban's position is that there was no conspiracy between him and Rapp and that he gave his honest opinion that the stone was worth $3,000.

Defendants complain that the trial court erred in permitting plaintiff Blanche Patton to testify that she had attended school only through the first year in high school, and in permitting Patton to testify that he went through the seventh grade, when there is no allegation in their petition that either was illiterate. This is not error. The evidence was not offered upon the theory of illiteracy, but to show that plaintiffs were not of the same mental stature as Rapp and Ban. As such it was admissible under the general issues.

Defendants contend that the first paragraph of Instruction No. 1 is erroneous. It is as follows:

" Plaintiffs bring this action to recover damages for alleged false representations as to the value of a diamond ring alleged to be a part of the consideration of the sale of a lot described in the evidence, the balance of the con sideration being $1,626 represented by a mortgage upon the premises, and plaintiffs allege that defendants Max and Elsie Rapp represented that said diamond was a perfect and flawless blue diamond, worth $3,000 and weighing from three and one-half to four carats."

The court then goes on to tell of the contentions of fraud. Defendants seem to contend that the deed had been given long before, and that the deal in question was over the option to repurchase, so that therefore the instruction is not proper. We think that there is no error in the instruction. The deal involved plaintiffs' rights in the land, and whether the " sale" was made when the deed was delivered, or over a year later when the repurchase option was returned, is immaterial as far as the jury is concerned. The question for the jury was as to the fraud, and the court endeavored to confine the case to that issue, without going into technicalities as to the legal effect of the deed and option.

Most of defendants' other specifications of error may be grouped in the claim that there is not sufficient evidence of fraud and conspiracy and that therefore the court should have directed a verdict for defendants. Counsel for the Rapps both in his brief and in oral argument before this court complained of plaintiffs' attempts to show the value of the premises, but in the same breath argued that plaintiffs had no substantial equity in the land in any event. In any event, after carefully going over the record we find no error...