Stetson v. Riggs

• Decision Date: 04 October 1893
• Citation: 56 N.W. 628,37 Neb. 797
• Parties: STETSON v. RIGGS.
• Court: Nebraska Supreme Court

37 Neb. 797

56 N.W. 628

STETSON

v.RIGGS.

Supreme Court of Nebraska.

Oct. 4, 1893.

Syllabus by the Court.

To maintain an action for damages for false representations, the plaintiff must allege and prove (1) what representation was made; (2) that it was false; (3) that plaintiff believed the representation to be true, (4) relied on and acted upon it, (5) and was thereby injured.

Commissioners' decision. Appeal from district court, Lancaster county; Hall, Judge.

Action by Frank L. Stetson against James Edward Riggs to foreclose a mortgage. From the decree rendered, plaintiff appeals. Reversed.A. G. Greenlee and Marquett, Deweese & Hall, for appellant.

J. R. Webster and Rose & Fisherdick, for appellee.

RAGAN, C.

One Stetson conveyed two lots in Lincoln, Neb., to one Riggs in exchange for a stock of drugs. One of the lots conveyed was incumbered by a mortgage of $700 previously executed by Stetson to other parties, which mortgage Riggs assumed. On the maturity of the mortgage, Stetson advanced the money, took an assignment of it, and brought this suit to foreclose it. Riggs filed an answer, the substance of which is as follows: “And for further answer this defendant says that said described real estate was conveyed to the defendant by the plaintiff in a transaction of barter and exchange, as part of the consideration for the purchase of a stock of drugs and merchandise,and to induce the defendant, James Edward Riggs, to receive the deed for and accept said real estate for exchange of said merchandise received by the plaintiff, the plaintiff represented to the defendant that one of the pieces of real estate so deeded and pledged in the mortgage was the corner lot immediately back of the residence of J. J. Kelly, and said real estate, if it had been located as described, and as the same was in fact pointed out to this defendant by the plaintiff, would have been described as lot one, (1,) block six, (6,) in Houtz' addition to the city of Lincoln; and seeing said ground, as pointed out and described to this defendant, defendant was willing to accept the same in trade and barter on said stock of merchandise, and agreed so to do. But the plaintiff conveyed other and different real estate to this defendant, which was of much less value, being worth $500 less than the real estate pointed out, or the said lot having been located as described and represented,” and prayed that $500 of damages might be set off against the amount due Stetson on the mortgage. Stetson replied to this answer by a general denial. The court, by its decree, allowed Riggs the set-off of $500, as claimed, and Stetson appeals.

The appellant makes the points that the answer of Riggs does not state facts sufficient to constitute a defense, and that the finding and decree are unsupported by the evidence. We agree with the appellant in the above contentions. The defense of Riggs was, in effect, an action against Stetson for damages...