Vaupel v. Mulhall
| Decision Date | 19 November 1908 |
| Citation | 118 N.W. 272,141 Iowa 365 |
| Parties | JOHN VAUPEL, Appellee, v. JOHN MULHALL, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED SATURDAY, FEBRUARY 20, 1909.
Appeal from Woodbury District Court.--HON. J. F. OLIVER, Judge.
ACTION for damages for false representations in the sale of land. Verdict for plaintiff for $ 13,000. Judgment on the verdict for $ 7,000, plaintiff remitting. Defendant appeals.--Reversed and remanded for a new trial.
Reversed and remanded.
Milchrist & Scott, for appellant.
Robert Munger, J. W. Hallam and Stearns & Zipf, for appellee.
At the time of the transactions involved in this action, the plaintiff was a merchant of Freeport, Ill., and the defendant was a dealer in real estate at Sioux City Iowa. The plaintiff was desirous of purchasing real estate, and of paying therefor, in part, with goods to be selected by him from the shelves of his store at Freeport. He called at the office of the defendant at Sioux City for the purpose of ascertaining what he had for sale. The defendant sent one Casselman with the plaintiff and his son to see the farm in question. This farm is known in the record as the "Fisher farm," and is located in Monona County, and was then occupied by Fisher with his family, although he had recently sold it to the defendant. This farm consisted of three hundred and thirty-four acres, and was somewhat irregular in shape. Its extreme length was about a mile and a half, lying east and west. Its greatest width one hundred and sixty rods, and its minimum width eighty rods. It lay somewhat in the form of an open monkey wrench. In the open mouth of the wrench was a smaller farm, known as the "Erskine farm," being surrounded on three sides, namely, the west, north and east, by the Fisher farm. Substantially all of the east half of the Fisher farm and the west end of the other half consisted in rough, hilly, broken ground, and unfit for cultivation. Between these extremes there lay about sixty or sixty-five acres of level bottom land, fit for cultivation. Joining this bottom land on the south, and divided from it by an east and west highway, lay the Erskine land, which was also bottom land, and fit for cultivation. To the west and to the east and to the northwest and to the northeast of this Erskine land lay the hilly, rough ground of the Fisher farm. The Fisher house was located upon the east and west highway, which separated the Erskine land from the bottom land on the Fisher farm. This house faced toward the south, and toward the Erskine land. The evidence on the part of the plaintiff tends to shows that on the day in question Casselman represented to him that the Fisher farm contained two hundred and twenty acres of good bottom land, fit for cultivation, and that the balance consisted of hilly, untillable land. In order to reach the Fisher place, the parties drove over a private driveway running north through the Erskine farm and opening into the highway near the Fisher house. While passing through the Erskine farm, Casselman, pointing his hand over the Erskine farm, said, in substance, "This is the land." The parties drove to the Fisher house. More or less of an inspection was had by the plaintiff, to the extent, at least, that he looked over the ground, which he supposed to be the two hundred and twenty acres of good bottom land. He did not pass over the whole farm, nor leave the Fisher house for any considerable distance; nor did he ascertain the boundaries of the land. He believed, however, that the Erskine land to the south of the highway was part of the farm, and believed the statement of Casselman that there were two hundred and twenty acres of good bottom land, and, so relying, he purchased the farm at a consideration, expressed in the contract, of $ 65 per acre, and paid for the same. After the purchase of the farm he discovered that it contained not more than sixty or sixty-five acres of good bottom land, and that the farm as a whole was worth not more than about $ 30 or $ 32 an acre. His evidence tends to show, also, that it would have been worth $ 65 per acre if it had contained two hundred and twenty acres of good bottom land as represented. The evidence on defendant's part tends to show as follows: That no representations of any kind were made; that the Erskine farm was not pointed out as any part of the Fisher farm; that the farm would not have been worth $ 65 an acre if it had contained two hundred and twenty acres of bottom land; that the plaintiff did not pay $ 65 an acre therefor; that although the contract expressed the consideration at $ 65 per acre, it was also a part of the contract that it was to be performed, in large part, by an exchange of goods, to be selected by the plaintiff himself from the shelves of his store; that he paid for said farm only $ 10,000 in money, and $ 11,710 figured at the original invoice value of shelf-worn goods, which were worth, in fact, not more than ten or fifteen cents on the dollar. The evidence on defendant's part also tends to show that the farm, in the condition it actually was, was worth all the value which plaintiff paid for it. Plaintiff's evidence in rebuttal tended to show that the goods turned out by him in partial payment for the farm were worth from eighty to eighty-five cents on the dollar.
I. The court charged the jury, in substance, in instruction No. 6 that, if Casselman, with the intention to deceive and defraud the plaintiff, pointed out to him the Erskine land, and represented it as being a part of the Fisher farm, and that the Fisher farm, as so pointed out and shown to plaintiff, contained at least two hundred and twenty acres of good farm land, or if, without pointing out the Erskine land, the said Casselman falsely and fraudulently represented to the plaintiff that the Fisher farm contained two hundred and twenty acres of good farming land, located upon the bottom, and excellent for cultivation and the raising of crops, and that such representations were false, and known by Casselman to be false, and the falsity of such representations was not known by plaintiff, but that he believed and relied upon such representations, and, so believing and relying, purchased the farm in question, then he was entitled to recover. The appellant contends earnestly that this instruction submits the case to the jury on two inconsistent theories, and that, if the plaintiff relied upon one representation, he could not have relied upon the other. It is urged that, if the plaintiff has failed to prove that Casselman pointed out to him the Erskine land as part of the Fisher farm, his case must fail, because he has testified that he relied upon that representation. The argument is not sound. Suppose it had been found as a fact in the case that Casselman had not represented the Erskine land to be a part of the Fisher farm, but that he had represented the Fisher farm to contain two hundred and twenty acres of good bottom land. The plaintiff was upon the ground. He looked about him to see the general character of the bottom land. The Erskine land was close at hand and in plain view. If he looked for approximately two hundred and twenty acres of bottom land, his eyes must have rested upon the Erskine land as a part of it, for there was no other bottom land in sight sufficient to make approximately the number of acres represented to him. If, therefore, by any false representation, knowingly made by Casselman, the plaintiff was induced to believe that the Erskine land was a part of the Fisher farm, then he would not be precluded from relying upon such belief, simply upon failure to prove that the Erskine land was expressly pointed out to him as a part of the farm. The essence and material part of plaintiff's case is that Casselman falsely and knowingly represented the Fisher farm to contain two hundred and twenty acres of good bottom land, fit for cultivation. If that charge is proved by whatever proper evidence, plaintiff's case is made in that respect.
Plaintiff testified that Casselman expressly pointed out to him the Erskine farm, and it was proper evidence tending to prove the essential charge. If he failed to satisfy the jury that express representations were made as to the Erskine land, the jury might still find that he saw the Erskine land, and believed it to be a part of the Fisher farm, because of Casselman's representations that there were two hundred and twenty acres of such bottom land included in the farm. And such belief on his part would warrant the jury in finding that he relied upon Casselman's representations as to the two hundred and twenty acres. If, after hearing such representations from Casselman, it was plainly obvious to him that the farm did not contain two hundred and twenty acres of bottom land, or approximately so many acres then he would not be justified in believing or relying upon such false representations. On the other hand, if he saw two hundred and twenty acres of bottom land in plain view, the jury...
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