White v. Smith

• Decision Date: 23 June 1880
• Citation: 6 N.W. 284,54 Iowa 233
• Parties: WHITE v. SMITH
• Court: Iowa Supreme Court

6 N.W. 284

54 Iowa 233

WHITE v. SMITH

Supreme Court of Iowa, Des Moines

June 23, 1880

Appeal from Jones District Court.

ACTION to recover damages for alleged fraudulent representations made by the defendant, by means of which the plaintiff was induced to purchase about two acres of land at Olin, Jones county, upon which to erect a dwelling house. It is claimed that the defendant had laid out, platted and recorded an addition to said town, and that he took the plaintiff upon the premises in question, and falsely and fraudulently pointed out and asserted that said land so purchased was bounded on the north and east by streets, and that it was thus situated on a corner, whereas in truth and fact there was no street upon the north side of said premises. That plaintiff relied upon said representations and purchased the property, and that defendant well knew at the time of said sale, and plaintiff informed him, that he intended to erect a good dwelling-house on said land, with a frontage to the north upon said street, and that the contract was made by both parties with express reference to said fact of building thereon in the manner aforesaid. That plaintiff in the full belief that there was a street on the north of said premises and that the lot he purchased was corner property, erected a costly residence with reference to that fact. That afterwards the defendant sold the land on the north, which he had represented to be a street, to another party, who erected a house upon the extreme east end thereof, and closed up what was represented as a street.

There are proper averments as to the knowledge of the defendant that there was in fact no street on the north of said land. The defendant took issue upon the averments of the petition. There was a trial by jury, which resulted in a verdict and judgment for the plaintiff for $ 400. Defendant appeals.

AFFIRMED.

Sheean & McCarn, for appellant.

Oakley & Jamison, for appellee.

OPINION

ROTHROCK, J.

I.

The plaintiff introduced evidence tending to show the truth of all the material allegations of the petition. Thereupon the defendant presented a motion asking the court to direct the jury to find a verdict for the defendant, because the recorded plat of Smith's Addition to Olin showed that there was no recorded street on the north side of the land in controversy, and there was no testimony to show that defendant used any artifice or other means to induce the plaintiff not to examine said record, and that plaintiff did not examine said record, and that plaintiff did not exercise ordinary diligence to ascertain whether there was a street on said land. The motion was overruled, and the court, upon the final submission of the cause, instructed the jury upon that question as follows:

"8. It is not every representation made by a party selling real estate that the party can rely upon, and recover damages therefor if untrue. A purchaser is required to use ordinary care and diligence in regard to those matters of which he may by such care and diligence obtain correct information, and when the public records show the condition of such real estate as to roads and streets the purchaser is required to look to such records for such information, and is not justified in failing to seek such information, and relying on representations as to such conditions. If the public records do not show the existence of such streets and roads, and lands are sold with reference thereto, by means of false representations as to the existence of the same, and damages occur to the purchaser, without his fault, then he is entitled to be indemnified."

The force and effect of the ruling of the court in overruling the motion, and in giving this instruction, cannot be fairly understood without an examination of the recorded plat. It is enough to say that the plat did not purport to cover or include the land claimed as a street, nor that purchased by the plaintiff. An examination of it will show that the south line of the plat corresponds with the north line of the land which it is claimed was represented by defendant to be a street.

The above instruction was not excepted to, and must, therefore be regarded as the law of this case so far as this question is involved. It is, therefore, unnecessary to determine its correctness as an abstract proposition. That it was as favorable to the defendant as he had the right to ask, can admit of no question. In the closing sentence of the instruction the jury are told that, "if the public records do not show the existence of streets and roads, and lands are sold with reference thereto, by means of false representations as to the existence of the same, and damages occur to the purchaser without his fault, then he is entitled to be indemnified. " This was the precise situation of the land in controversy. The public records did not show the existence of a street, and there was evidence from which the jury was justified in finding that the false representations were made.

II. Witnesses were examined by the plaintiff upon the question as to the difference in value of the plaintiff's house as a residence with and without a street on the north side thereof. Objection was made to this evidence as "incompetent, immaterial and irrelevant testimony." It is now urged that the witnesses were not competent to testify as to the value of the property, because it was not shown that they knew the value of real estate in that vicinity. We think if the defendant intended to urge an objection to...