Shepard v. Hamaker

• Decision Date: 18 November 1925
• Docket Number: 23321
• Citation: 205 N.W. 937,114 Neb. 42
• Parties: LEWIS W. SHEPARD, APPELLEE v. HENRY D. HAMAKER, APPELLANT
• Court: Nebraska Supreme Court

205 N.W. 937

114 Neb. 42

LEWIS W. SHEPARD, APPELLEE v. HENRY D. HAMAKER, APPELLANT

No. 23321

Supreme Court of Nebraska

November 18, 1925

APPEAL from the district court for Douglas county: JAMES M FITZGERALD, JUDGE. Affirmed on condition.

AFFIRMED ON CONDITION.

Herman Aye, for appellant.

McKenzie Lower & Sheehan, contra.

Heard before MORRISSEY, C. J., DEAN, DAY, GOOD, THOMPSON and EBERLY, JJ.

OPINION

DAY, J.

Lewis W. Shepard, plaintiff, brought this action against Henry D Hamaker, defendant, to recover damages on account of an alleged fraud perpetrated by the defendant upon the plaintiff in an exchange of real estate between the respective parties. The trial resulted in a verdict and judgment in favor of the plaintiff for $ 9,960. Defendant appeals.

There is a direct conflict upon every material question of fact in the evidence, but the jury having accepted the plaintiff's version of the case the facts will be stated accordingly.

Plaintiff was a farmer living in Iowa and the owner of two tracts of land located in the counties of Mills and Fremont in the state of Iowa. Each of the farms were encumbered for a considerable amount.

Defendant was a real estate agent residing in Omaha and the owner of a section of land in Cherry county, Nebraska, the record title to which stood in the name of William R. Young. The record also showed a mortgage on the land executed by Young in favor of the defendant for something over $ 8,000, the purpose being to enable the defendant to more readily effect a trade of the land. Defendant, pretending to act as agent of Young, entered into negotiations with the plaintiff with the view of effecting an exchange of the respective properties. The plaintiff had never examined the Cherry county land with the view of purchase or exchange, although he had driven through the tract in looking at other lands in the vicinity. As an inducement to the plaintiff to make the exchange, the defendant represented that the Cherry county land was rented for $ 620 a year, payable about September 1, 1921, which would be paid to the plaintiff in case the trade was effected; that the land had been sold to William R. Young for $ 25 an acre; that the land was reasonably worth the sum, and as agent for Young he had an offer of $ 25 an acre, and that the offer was still open; that the land consisted of 200 acres of good bottom land; that 40 acres had been cultivated for a number of years; that there was growing on the land 25 acres of corn, 5 acres of cane, and 10 acres of potatoes; that the land during the year 1920 had produced a corn crop yielding an average of 40 bushels to the acre; that there were 200 acres of good hay land, which for a number of years had yielded at least one ton an acre; that there were no blowouts on any part of the section; that there was a stream of running water through the pasture; and that the improvements were as good as any in the vicinity of Wood Lake. The defendant further represented that he intended purchasing a large amount of hay in the vicinity of Wood Lake during the winter months of 1921 and 1922; that he would pay the plaintiff 50 cents a ton for purchasing hay for the defendant, and that the plaintiff would be paid as commission at least $ 1,500.

The plaintiff's testimony tends to show that all of the representations above enumerated were untrue; that the land was worth not to exceed $ 5 an acre; that the tenant paid no rent whatever; that the reasonable rent of the land would be 15 cents an acre; that the amount of hay and corn produced on the land was extremely overrated; and that the greater portion of the land was sand. The plaintiff testified that in making the exchange he relied upon the representations made by the defendant and believed them to be true.

Without reviewing the testimony further, we think that the record clearly presented a question for the jury's determination.

Defendant complains of the giving of instruction No. 4. That instruction told the jury in substance that fraud is never presumed, but must be proved; that the law presumes that every person transacts business honestly and in good faith; that the burden of proving fraud is on the person who charges it, and that fraud may be proved by circumstantial...