Shuttlefield v. Neil

• Decision Date: 21 January 1914
• Citation: 145 N.W. 1,163 Iowa 470
• Parties: J. H. SHUTTLEFIELD, Appellee, v. W. J. NEIL, Appellant
• Court: Iowa Supreme Court

145 N.W. 1

163 Iowa 470

J. H. SHUTTLEFIELD, Appellee, v. W. J. NEIL, Appellant

Supreme Court of Iowa, Des Moines

January 21, 1914

Appeal from Wapello District Court.--HON. FRANK W. EICHELBERGER Judge.

ACTION to recover damages for alleged false representations in the sale of land. Jury trial, verdict and judgment for plaintiff. Defendant appeals.

Affirmed.

McNett & McNett and Seneca Cornell, for appellant.

Jaques & Jaques, for appellee.

OPINION

PRESTON, J.

Prior to October 14, 1909, plaintiff was the owner of two hundred and eighty acres of land in Davis county, Iowa and defendant owned two hundred and forty acres in Kearney county, Kan September 23, 1909, plaintiff and his wife, and defendant, entered into the following contract in regard to their properties:

This contract entered into on this 23d day of Sept., 1909, by and between J. H. Shuttlefield and Augusta Shuttlefield, parties of the first part, and W. J. Neil, party of the second part, witnesseth: That parties of the first part hereby agree to sell to party of the second part their two hundred and eighty acre farm in Soap Creek township, Davis county, Iowa at $ 40.00 per acre. Said farm being the farm on which said first parties are now living. Second party to turn in his two hundred and forty acre farm in Kearney county, Kansas, at $ 20.00 per acre, and any balance to be paid by second party in cash. It being understood that $ 500.00 of said balance shall be paid by second party to first parties when a written acceptance of said Kansas land at said price is made by first parties. It being understood that this contract shall be in full force and effect only in case said first parties are willing to accept said Kansas land at said price, after an inspection thereof. Said option to be exercised on or before Oct. 15, 1909. In case said option is exercised, both parties agree to furnish warranty deeds and abstracts of title to their respective premises, showing good and sufficient title thereto. All papers to be exchanged and possession given on or before March 4, 1910.

J. H. Shuttlefield

Augusta Shuttlefield

Parties of the First Part.

W. J. Neil

Party of the Second Part.

Before October 14, 1909, plaintiff and one William K. Williamson went to Kearney county, Kan., to examine the land, and after their return the following acceptance was executed:

Whereas parties hereto on Sept. 23, 1909, entered into an option wherein first parties agree to sell their two hundred and eighty-acre farm in Soap Creek township, Davis county, Iowa at $ 40.00 an acre and accept as part payment thereon, the two hundred and forty-acre farm of second party in Kearney Co. Kansas, at $ 20 an acre, and balance to be paid in cash, said deal to be closed providing the Kansas land was acceptable to first party, and whereas first party has examined the Kansas land and the same is acceptable to him at said price, said option is hereby exercised, and the parties hereto agree as follows: To at once make and deliver warranty deeds and abstracts to their respective premises. Second party to pay to first parties the balance due them, amounting to $ 11,200.00 minus the amount now due on the $ 4,500.00 mortgage to John Webber and the $ 500.00 mortgage due to Steckel & Sons, and the full amount of the judgment, and any other liens of any kind which may appear against said property of said parties.

It is further agreed that said parties shall pay the taxes on the Kearney county land and Neil shall pay the taxes of 1909 on the Davis county land.

Dated, Ottumwa, Iowa October 14, 1909.

J. H. Shuttlefield

Augusta Shuttlefield

Parties of the First Part.

W. J. Neil

Party of the Second Part.

Deeds bearing date October 14, 1909, were exchanged. In the deed from defendant to plaintiff for the Kansas land the consideration is given as $ 4,800, and in plaintiff's deed to defendant for the Davis county land the consideration named is $ 11,200.

There is a dispute between the parties and a conflict in the evidence as to whether Williamson was the agent of defendant or plaintiff in the transaction. Plaintiff claims that defendant represented that his Kansas land consisted of two hundred acres of valley or bottom land and forty acres of hill land; that Williamson was defendant's agent, and that defendant and Williamson conspired to, and that Williamson did, fraudulently point out land which corresponded with that described and represented, but that the land so shown was not the land owned by defendant; that the land owned by defendant and conveyed to plaintiff was sand hills and of but little value. Defendant's land was in section 19. The undisputed evidence is that the land shown to plaintiff by Williamson was situated about five miles from defendant's land and was in section 11. The evidence for plaintiff tends to show that defendant agreed to send Williamson to Kansas with plaintiff to show him the land, and that in this, also, Williamson was acting as agent for defendant. It is conceded by appellant, in argument, that the jury must have found against the defendant as to the agency of Williamson, and that there was such a conflict in the evidence that they cannot ask this court to disturb that finding. We should assume then that Williamson was the agent of defendant.

I. W. H. McElroy, an attorney and abstracter, was called as a witness for plaintiff to testify in regard to statements by defendant in regard to the Kansas land. Defendant objected on the ground that such statements were privileged communications between attorney and client under section 4608 of the Code. Before the witness gave his testimony he was cross-examined by counsel for defendant as to the nature of his relations with Neil. Witness testified that he was acting as attorney for plaintiff, and denied that he was acting as attorney for Neil or that he had been so employed; that he never gave defendant any advice; that defendant knew he was plaintiff's lawyer; that Seneca Cornell was defendant's attorney; that, after the first contract had been signed by plaintiff and wife, defendant asked witness to change the figures therein, $ 40 to $ 37.50, which witness refused to do; that he did have his stenographer run off another contract like it, except that the price of the Iowa land was fixed at $ 37.50 instead of $ 40 per acre, in order that defendant might try to get plaintiff to agree to a reduction; that he made no charge for rewriting this agreement; that the negotiations in regard to the deal, or many of them, took place in McElroy's office, and at one time when it appeared that the trade would be consummated, defendant told McElroy if it went through he would make McElroy a present of $ 25 because of the bother to him; that McElroy informed plaintiff of this. The $ 25 was paid when the matter was concluded. McElroy did draw the deed for the Kansas land from Neil to plaintiff. He says the only thing he did for defendant for which he could make a charge was the drawing of this deed. This was substantially the situation at the time the court overruled defendant's objection to this testimony. The court stated that from this evidence he did not think the relation of attorney and client existed at that time; that, if anything, it was scrivener work.

After the witness had given his testimony, defendant testified that he had employed McElroy as his attorney, and McElroy produced his books from which it appeared that an entry had been made in regard to the $ 25 item which defendant claims was a charge against defendant, but which the witness claimed was only a minute to show the amount of money taken in by him.

If this evidence had all been before the court when the ruling was made, it would have made a conflict in the evidence for the determination of the court. Defendant was the objecting party and had the burden of showing that the witness was the attorney for defendant and the communications privileged. As stated, this evidence was not all before the court when the ruling was made. The ruling was correct when made. O'Mara v. Jensma, 143 Iowa 297, 303, 121 N.W. 518. We do not find in the record that defendant moved to strike this evidence after the evidence on this point was all in. The situation is unlike that in Hanson v. Kline, 136 Iowa 101, 113 N.W. 504. In that case the attorney testified that the relation of attorney and client did exist, and the objection was therefore properly sustained.

II. On the question as to whether plaintiff relied upon the alleged fraud and representation of defendant and his agent, or whether he should be heard to so say, the court instructed:

(5) To recover in this action the plaintiff must show by the greater weight or preponderance of the evidence that the representations were made as alleged; that they were false and untrue; that the defendant knew that they were false and untrue; that they were made for the purpose of inducing the plaintiff to make the trade; that the plaintiff relied on said representations and was thereby induced to make the trade, relying upon such representations as true, and that, in so relying on such representations, he exercised ordinary care and prudence.

(6) The allegations of fraud and misrepresentation charged in plaintiff's petition and for which he claims damages in this case are: First: That defendant represented to him that he owned two hundred acres of valley land and forty acres of hill land in Kearney county, Kan., worth $ 20 per acre, which land would be shown to plaintiff in case of a trade, and, if then satisfied, the trade would be made; second, that defendant afterwards sent one Williamson as his agent to show plaintiff the land, and that said Williamson showed him about two hundred acres of nice bottom land, irrigated or...