Roberts v. Holliday

• Decision Date: 05 April 1898
• Citation: 74 N.W. 1034,10 S.D. 576
• Parties: ROBERTS v. HOLLIDAY.
• Court: South Dakota Supreme Court

74 N.W. 1034

10 S.D. 576

ROBERTS v. HOLLIDAY.

Supreme Court of South Dakota

April 5, 1898

Appeal from circuit court, Brookings county.

Action by James E. Roberts against James Holliday. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Affirmed.

Haney J., dissenting.

John C Jenkins and Jenkins & Farrell, for appellant. E. H. Canfield and Cheever & Hall, for respondent.

FULLER J.

This action, sounding in tort, and based upon a $700 claim for damages, occasioned, it is alleged, by false, fraudulent, and deceitful representations of the defendant, by which plaintiff was induced to enter into a contract for the purchase of real property, was tried to a jury, resulting in a verdict and judgment for $200 in favor of plaintiff, from which, and an order overruling a motion for a new trial, the defendant appeals.

It is conceded that, pursuant to the contract, and in full consideration of $2,400 for the land, respondent gave appellant, as the agent of the owner, Mina C. Warren, $100 in cash, five head of horses, valued at $600, and assumed the payment of two mortgages aggregating $1,000, and further obligated himself to pay her $700, evidenced by two equal installment notes, and that thereafter, by a mutual arrangement, respondent, by quitclaim deed, transferred the land back to Mina C. Warren, who delivered up said notes for cancellation, but no part of the money paid to appellant, nor the horses delivered to him, were ever returned. In support of the contention that the evidence is insufficient to make out a case against appellant, his counsel maintain that "as plaintiff has failed to establish or prove the difference between the value of the farm actually received and the value of the farm he would have received had the boundaries been as represented, he has failed to show actual damage, and the verdict cannot be sustained." The evidence shows, and no claim is made to the contrary, that the land described in the contract of purchase is not nearly so valuable as the tract respondent actually thought he was buying, and, having rescinded the contract, on that account he could, upon proof of injury sustained to that extent by reason of the deceit complained of, rightfully recover in this action, in the way of damages, the value of all that appellant, as the agent of the grantor, has received and retained as part consideration for the property. Campbell v. Hillman, 61 Am. Dec. 195; Bartholomew v Bentley, 15 Ohio, 660; Kroeger v. Pitcairn, 101 Pa. St.

311; Hedden v. Griffen, 136 Mass. 229. That one who perpetrates a fraud acted throughout in the capacity of agent is no defense to an action against him to recover compensatory damages occasioned thereby. Reed v Peterson, 91 Ill. 288. As the difference between the purchase price and the actual value of the property, though doubtless a material element, is not, under the circumstances of this case, the true measure of damages, proof of the loss, if any was occasioned by the false and fraudulent representations of appellant, is all that is essential to a recovery. Smith v. Bolles, 132 U.S. 125, 10 S.Ct. 39; Reynolds v. Franklin, 44 Minn. 30, 46 N.W. 139. It appears from the evidence that respondent, a resident of Minnesota, came to this state with a view to buying a farm, and on the 15th day of March, 1893, called at the office of appellant, in the city of Brookings, where a conversation was had between the parties to this suit, concerning which respondent testified in part as follows: "He [appellant] then told me that he had a piece of land to sell that would just strike me, and I told him, if it was nice, level land, that that was the kind I wanted. He said it was all nice, level land, with the exception of probably eight or ten acres on the east side, which was a little bit rolling. He said the land was near Bruce, and belonged to a Miss Warren. That was my first visit to Brookings county, and I had never been in the vicinity of Bruce." Concerning further negotiations occurring on the following day, when the parties drove out to see the land, the witness said: "We first came to the land just west of the railroad track on the south side, then drove in a little northeasterly course up between the house and barn, and started up on the hill to the east, when something was said that, if the land went up there, we need go no further; that I would not have it under any consideration. Mr. Holliday rose up in the buggy, and looked back and forth a few minutes, then turned around, and drove in a northwesterly course along the foot of the hills to a ridge like and furrow mark. When we got down there, Mr. Holliday rose up in his buggy, looked back and forth, and says: 'That is the...