Roper v. Noel
| Decision Date | 07 October 1913 |
| Citation | 143 N.W. 130,32 S.D. 405 |
| Parties | C. E. ROPER et al., Plaintiffs and respondents, v. CHARLES E. NOEL Defendant and appellant, J. H. Corey, and Walter A. Elliot, Defendants. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Hyde County, SD
Reversed
Boyce, Warren & Fairbank
Attorneys for Appellant.
M. Harry O'Brien, Royal C. Johnson
Attorneys for Respondents.
Opinion filed October 7, 1913
The defendant J. H. Corey, a resident of Nebraska, owned the N.E. 1/4 of section 30, township 112, range 80, in Hughes county, S.D. He placed the land with the defendant Noel, a real estate dealer of Highmore, S.D., for sale or trade. Plaintiffs lived at Ft. Dodge, Iowa. They owned a cigar store. They advertised in a newspaper their store, offering to trade for South Dakota real estate. Corey saw this advertisement, and wrote Roper that he had a piece of land in Hughes county, S.D., and that Noel was looking after it for him. Corey wrote Noel about the matter, and Noel wrote Roper that he was instructed to show the land; that he had full authority to deal for their store if the same invoiced $2,000. Roper then wrote Noel that he would come up and look at the land, and also sent a telegram. This telegram came while Noel was away. Defendant Elliot had a desk in Noel's office. They were not in partnership. Elliot testified that he sometimes took care of Noel's business when he was gone, the same as he did for other land men; that they had such arrangement with each other. Noel testified that he did not think there was ever any arrangement such as that, and, "taking that as a general statement, Elliot would be mistaken," and that he did not remember of Elliot ever taking care of any land for him. Elliot opened the telegram and found that Roper would be at Pierre the next morning, and wanted Noel to meet him. Elliot at this time knew nothing about the land or the instructions to Noel. He looked up the correspondence, but was unable to find any description of the land. He knew, however, that Corey had at one time owned a quarter section in section 30, township 112, range 80, and he thought that it was the S.W. 1/4. He went to Pierre and met Roper at the hotel, telling him that Noel was away, and that he would try to show him the land. With the aid of a map they drove out to the proper township and tried to find section 30. Roper did not know the description of the land, and neither he nor Elliot had ever been in the vicinity. On the way they passed a little frame house which it afterwards developed belonged to Valentine Buell, and was on the S.W. 1/4, section 15. They located what they thought was the S.W. 1/4 of section 30. Elliot testifies that he then told Roper they had better go over to that house to find out where they were; that he did not talk to Buell, and that Roper did, and that Roper went and asked him the location. This Roper denied. They then drove back to Pierre, and Roper made inquiries as to the prices of land. They went back to Highmore that night, and, Noel having not yet returned, Roper talked over the trade with Elliott and then went back to Ft. Dodge, Iowa. When Noel returned, Elliot told him what he had done, and said that he had shown Roper the S.W. 1/4 of section 30. Noel at once told him that he had shown Roper the wrong quarter, and that it was the N.E. 1/4 of section 30 that Corey owned. There is nothing to show that Noel at that time knew Roper had been shown land in section 17. It does not appear that Noel and Elliot ever talked about this land until after Roper came to Pierre. Noel claimed that he told Elliot he would not put any money in the transaction, but Elliot was anxious to go ahead with the trade himself. Noel wrote Roper as follows (omitting date, address and signature):
Elliot took this letter to Roper, and Roper testified that Elliot told him they had been on section 30 and that the N.E. 1/4 lay northeast of the S.W. 1/4 which they had been on. Roper satisfied himself from the map that he had seen the S.W. 1/4. and went ahead with the trade. Upon the consummation of the trade, Elliot received $150 commission and Noel got $100 commission. It developed that Elliot and Roper had been upon section 17 of the same township, instead of section 30. The evidence tended to show that the N.E. 1/4 of section 17 was of about the same quality as the S.W. 1/4, but that section 30 was in the hills near the Missouri river, and was of much less value than land in section 17. Noel never saw Roper until the time of the trial. The defendant Corey was not served with process. The jury returned a verdict against defendants Elliot and and Noel. Judgment was entered thereon, and from such judgment and order denying a new trial, defendant Noel appeals.
This is an action for fraud, deceit, and misrepresentation. Incidentally a conspiracy is alleged on the part of defendants and it is urged on the part of appellant that no conspiracy was proven. But the allegation of conspiracy does not change the real gist of the action. Lovelett v. Heumpfner, 32 S.D. 35, 141 N.W. 1080. The other grounds of appeal are the insufficiency of evidence to sustain the verdict, and errors in instructing and in failing to instruct the jury. We are of the opinion that there was not sufficient evidence connecting Noel, with the alleged fraud and deceit to justify the verdict.
Considering the evidence in the light most favorable to respondent, the connection of Noel with the fraud and deceit, if any, rests solely upon conjecture. In such a situation the case should not be submitted to the jury. Scott v. Boyne City, G. & A. R. Co., 169 Mich. 265, 135 N.W. 110.
It is urged that because Noel said in his letter "he has showed you the wrong quarter" that the inference is that Noel led Roper to believe the land showed was another quarter of section 30, and that he should have said "he has showed you the wrong section.'" Even if Noel knew that the land shown was not in section 30, it would not necessarily follow that by the use of the term "wrong quarter" such would be the inference. It is a matter of common knowledge that 160 acres of land are commonly referred to as "a quarter" or "a quarter section." The use of the words "wrong quarter" in the letter to Roper conveys no impression to our minds that Noel was trying to mislead Roper. Wherever the true land was situated it would have been the natural thing for Noel, or any real estate man, to refer to the land shown as the "wrong quarter."
It is further argued, because Noel testified that he did not have anything further to do with the deal, and it subsequently appeared that upon settlement with Corey he received $100 for this transaction, that the rule, "Falsus in uno, falsus in omnibus," should be applied. But as before stated, we are of the opinion that the evidence connecting Noel with the fraud rests solely on conjecture, and for that reason the verdict may not stand.
We are of the opinion that the court erred in denying the third, sixth, and thirteenth requested instructions, which are as follows:
We believe these requested instructions properly state the law of the case upon the...
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