Realty Investment Company v. Shafer
| Decision Date | 28 September 1912 |
| Docket Number | 17,091 |
| Citation | 137 N.W. 873,91 Neb. 798 |
| Parties | REALTY INVESTMENT COMPANY, APPELLANT, v. WILLIAM A. SHAFER, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: ALBERT J CORNISH, JUDGE. Reversed.
REVERSED.
Hall & Bishop and G. W. Lewis, for appellant.
George A. Adams and Morning & Ledwith, contra.
This is an action on a promissory note for $ 840. Defendant agreed to buy from plaintiff a quarter-section of land in South Dakota for $ 5,200, and paid $ 200 down. Later he executed a formal contract of purchase and a series of notes for the remainder of the purchase price. The note in controversy is the first of the series. It bears date August 21, 1909, and fell due December 1, 1909. In his answer defendant admitted the execution of the note, but pleaded it was void on the ground that he had been induced to sign it by the false and fraudulent representations of A. H. Rait, who, as agent of plaintiff, conducted the negotiations leading up to the alleged fraudulent sale. The answer also contained a cross-bill demanding judgment for the amount of the cash payment. The charges of fraud consisted principally in the making of false representations that the land was situated 2 1/2 miles from Wetonka; that land of like character was selling for $ 35 to $ 40 an acre, and that the tract in controversy was better than the average quarter; that it was free from alkali, gumbo or hard-pan; that there were stones upon the surface, but not beneath it; that there was no waste land and that all could be cultivated that the land was worth $ 32.50 an acre; that plaintiff's title was good; that the soil would produce an average of 32 1/2 bushels of wheat to the acre and a large amount of flax; that the soil was fertile, rich and deep. It is also pleaded in the answer that defendant was unacquainted with the land or the locality; that he saw the land a few moments only and had no opportunity to investigate it sufficiently to determine whether or not it was as represented; that Rait claimed to be well acquainted with the land and the locality, and that he had actual, personal knowledge of all matters upon which representations were made; that defendant informed Rait he knew nothing about the land and would have to rely upon Rait's word in regard to it, and was assured by him that his statements could be relied upon and that he would guarantee them to be true; that so relying on them and believing them to be true, while in ignorance of the facts, he entered into the contract of purchase; that after discovering the fraud defendant offered to rescind the contract. All fraud charged was denied by a reply. The case was tried to a jury. Plaintiff's action was dismissed, and judgment was rendered in favor of defendant on his cross-bill for $ 200. Plaintiff has appealed.
The principal question argued is the insufficiency of the evidence to sustain the verdict.
Can the verdict be sustained on proof that Rait told defendant the land was 2 1/2 miles from Wetonka? Defendant testified that such a statement had been made, but it was denied by Rait. In any event it is undisputed that defendant, about mid-day, before he signed the contract of purchase or the note, went in an automobile directly from the land to Wetonka and there examined a map showing the exact distance. The evidence is uncontradicted that he had himself an accurate source of information, and that Rait pointed out to him the location of the land and the town of Wetonka on a map showing the distance between. Moreover, the abstracts fail to show that the distance from Wetonka affected the value of the land, or that defendant suffered injury through the representation, if falsely made. For the purpose of rescission, it was incumbent on defendant to show in some manner that the statement was material and that he was thereby misled to his injury and damage. Jakway v. Proudfit, 76 Neb. 67, 109 N.W. 388. On this issue there is a failure of proof.
Can the verdict be sustained on proof that the market value of land of like character was misrepresented? If such representations were made, there is no evidence that they were false. Besides, the issue as to the market value of land was withdrawn from the jury by an instruction of the trial court.
Can the verdict be sustained under the charge that Rait falsely represented that the land was free from alkali and hard-pan? In support of these and other allegations of the answer, defendant testified he was told by Rait: He further testified Rait represented to him that the surface was loam with a clay subsoil; that there were stones on the surface, but none under it, and that, when they were picked off, the place would be free from stones; that the water on the surface was not alkali water; that a draw crossing the land gave good drainage; that "there is as fine land as there is under the sun;" that "it was as good land as there is under the sun;" for crops;" that he would guarantee the land to be as represented. In testifying, defendant also stated that he told plaintiff he must rely on him; that he did so and believed Rait's representations and relied on them; that Rait said he was familiar with the land and the surrounding country; that defendant was not; that, when defendant was on the land to inspect it, he was hurried away by Rait and did not have an opportunity to complete his inspection. All of the testimony tending to prove misrepresentations is emphatically denied by one or more witnesses. Whether it is sufficient in this case to justify a rescission of the sale, or to sustain the verdict, depends upon the facts and circumstances proved and the rules of law applicable thereto.
Defendant was 46 years old, and had been farming near Lincoln for 26 years. His own story is that in August, 1909, he went with two of his neighbors and friends to Wessington Springs, South Dakota, to look at land, and to buy a tract, if he found one to suit. He was also accompanied by two real estate agents Hutchinson and Allen. The party spent two days inspecting lands near Wessington Springs, but defendant declined to make a purchase because the lands offered for sale were too rough and hilly to suit him. Afterward he went with his two friends and Allen to Aberdeen, and by the latter was introduced to Rait, who was an entire stranger. To Rait defendant stated he would buy a piece of land, if he found one to suit him, and he was taken in an automobile on a tour of inspection. On the trip Rait occupied the front seat with the chauffeur. Defendant sat in the rear seat with his two friends. Three tracts of land were inspected. In regard to the first, defendant testified Rait guaranteed that it was free from alkali, but that he did...
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