Woolman v. Wirtsbaugh
| Decision Date | 23 November 1887 |
| Parties | HORACE M. WOOLMAN, PLAINTIFF IN ERROR, v. MILTON H. WIRTSBAUGH, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for York county. Tried below before NORVAL, J.
REVERSED AND REMANDED.
France & Harlan, for plaintiff in error, cited: Jackson v Timmerman, 7 Wend. 436. Seward v. Jackson, 8 Cow., 406. Hilliard New Trials, Sec. 127. Williams v. Hartshorn. 30 Ala. 211. 3 Sutherland Damages, 578.
J. F Hale and Scott & Gilbert, for defendant in error, cited: 3 Sutherland Damages, 592. Drew v. Beall, 62 Ill. 165.
The defendant in error brought this action in the court below to recover of the plaintiff the sum of $ 500 damages, which, he alleged, he sustained by reason of false representations made in the sale of eighty acres of land in York county. The plaintiff was agent for one Elam G. Fay, who was the owner of the land so sold and conveyed to defendant, the sale being made in November, 1883. It is alleged in the petition that plaintiff in error represented that said eighty acre tract contained a strip of land, which, in reality, is situated on the west side of said land, and which strip of land contained twenty-four acres, and is a smooth and level piece of land worth at least $ 500, and damages in that sum are claimed. The answer is a general denial. On the trial of the cause a verdict was returned in favor or Wirtsbaugh for the sum of $ 200, upon which judgment was rendered.
The testimony of Wirtsbaugh tends to show that Woolman pointed out the boundaries of the land in question to him, and that the western line so pointed out included 20 to 24 acres of smooth land, which was afterwards found not to be included in said 80 acre tract; while the testimony of Woolman is that he did not know the exact boundaries of the land, and so informed Wirtsbaugh, and that he pointed out what he supposed to be approximately the western boundary; that they had found the north-east corner of the land, and drove, as they supposed, to about the west line of the land, without knowing definitely where it was located, and that he so informed Wirtsbaugh.
The court instructed the jury that, "If you find from the evidence that the defendant Woolman at or prior to the time of the sale of the land in question told the plaintiff Wirtsbaugh he knew where the boundaries of said land were and then represented to the plaintiff where the...
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