136 Iowa 297 | Iowa | 1907
The note upon which the action was brought is for $1,175, and is one of four of a series made by defendant to Baxter & Becroft on or about January 6, 1903. It was indorsed-.by Baxter & Becroft without recourse to C. M. Thompson, and by Thompson indorsed in blank. It is claimed that Earnest E. Hart purchased the same from Thompson in April of the year 1903, and that he (TIart) sold and assigned the same to A. W. Way on or about April 5, 1903, for full value. Defendant claims that the note was obtained through fraud perpetrated upon her in the sale of certain lands in Nebraska by Baxter & Becroft; that in addition to the notes she gave them $2,300 in cash as and for the purchase price of the lands; that the lands were sand hills, rough, unfit for grass or cultivation, and were of no value whatever; and that the consideration for the notes has wholly failed.
If you find from testimony that the defendant has shown that the payee on said note, Baxter & Becroft, or either of them, falsely and fraudulently represented to the defendant the location and character of a certain 480-acre tract of land in Bock county Neb., and pointed out to her the boundaries thereof, and showed to her the character and quality of the same as being the land they were offering to sell to her as owned by said firm; and if you further find that the defendant believed and relied upon the statements and representations so made as to the location, character, and value of said tract of land, and was thereby induced to purchase the same and execute the note in suit with others as part payment thereof, and make a cash payment thereon of $2,300; and if you further find that the land in question was not in fact located as represented and pointed out, but was located elsewhere and of but little, if any, value — then such representation and conduct on the part of said Baxter & Becroft would constitute and be a fraud upon the defendant, and the consideration of said note would thereby fail as between the said Baxter & Becroft and the defendant, and the said payee could not enforce the validity of said note as against the defendant.
Defendant gave in cash and notes $7,000 for the land, and a jury was authorized to find that it was not worth to exceed $3,840. But, as defendant did not rescind the sale, and so far as shown yet retains the land, it was a question for the jury to determine whether there was a partial or total failure of consideration. The damages which defendant suffered by reason of fraud was not submitted to the jury. The reason for this undoubtedly was that no such issue was tendered by the pleadings. Defendant relied upon entire failure of consideration for the notes. There was no testimony that the land was worthless. Indeed, some of the witnesses said it was worth about $4,000. If there was