46 La. Ann. 499 | La. | 1894
The opinion of the court was delivered by
The plaintiff, Martha A. Ashley, wife of W. H. Jack, brings this suit to set aside for fraud an exchange of her property in
The act sought to be set aside, of exchange of plaintiff’s property for the Schmalinski lands, is of date the 30th January, 1892, and recites that each party gives her property for the other. The valuation of plaintiff’s dwelling is fixed higher than the lands, the difference being adjusted by the stipulation that plaintiff should retain her dwelling for a few months after the date of the act.
The testimony shows that plaintiff, desirous of selling her dwelling in Alexandria, employed Strouss, one of the defendants, a real estate agent, to effect the sale. About the same time Loomer and the defendant were employed by Schmalinski and wife to sell their lands in the parish south of Red river. Of Loomer’s employment by Schmalinski and wife, plaintiff was ignorant. Strouss conceived
Loomer, if not then, soon after became the partner of Strouss, and the commissions on the exchange thereafter effected of plaintiff ’s dwelling were shared between Loomer and Strouss. The plaintiff, entirely ignorant on the subject, stated she would have to rely on the information given her, and the result was, Loomer proceeded on his mission of examination. His account to plaintiff on his return was even more favorable than that of Strouss. Loomer’s report was in substance, that the lands were heavily timbered with white oak and other trees of value, lay convenient to the railroad in a solid body; that the timber could be readily sold at good prices: when cleared the lands were adapted to farming purposes— worth ten dollars per acre, could readily be disposed of, and he and Strouss concurred in the assurance that she should get all the lands. Loomer emphasized his account by the statement that the lands were high and free from overflow. True, the testimony of these representations comes from plaintiff. We have weighed the circumstance of her interest, and of the contradiction her testimony encounters from that of Strouss and Loomer. Her narration, clear, consistent and positive, finds corroboration, we think, in other parts of the record. As to the contradiction of Loomer and Strouss, their parts in the transactions connected with the litigation, we think, give little, if any, weight to their statements. Our conclusion is the representations were made as detailed by plaintiff. Our conclusion is, also, the representations were false, and designedly false. There is some testimony tending to show a speculative value of the lands, based on the hope of a perfect levee system and other possibilities of the future. On the other hand 'there is testimony far more persuasive, that under any conditions the cost of reclaiming the lands places that result beyond rational probability. As to the timber, it is put beyond dispute that there is practically, no growth on the lands of the kinds represented to plaintiff _ The lands are shown to be low, swampy and overflowed; of course, utterly unfit for cultivation, or capable of being fitted for cultiva
The judgment of the lower court decrees that Strouss and Loomer pay damages, and thus condemns their conduct but holds there is no basis to disturb the exchange. We have given the most careful attention to the case exhibited with respect to Sehmalinski and wife, and reach a conclusion different from that of the lower court. It is in evidence that on Loomer’s visit of inspection of the lands he was accompanied by Baker, who gave his testimony as a witness. Baker was asked by Strouss to examine the lands, and at his instance went with Loomer. On Baker’s return he gave Strouss the true condition of these lands, and that conformed to the testimony produced by plaintiff. Bad as the lands were reported by Baker, Strouss testifies he “ colored ” it, and made it, as he expresses it, as “blue” aspossible. Thus the false report of the lands was given to plaintiff by Loomer to induce her to make the exchange, and the true report exhibiting the worthless character of the lands was placed before Sehmalinski. Srouss practically directed both reports. When Baker’s report was put before Sehmalinski it elicited from him the comment, “ he did not think the lands were as bad as that,” but he was stimulated to no action or forbearance with respect to the exchange into which the plaintiff was being led by the false report then before her. But the record shows that in this condition, the true report before Sehmalinski and the false report before plaintiff, at Strouss’ request Sehmalinski made him a gift of one thousand acres of the land, consummated by the conveyance a day or two after, the conveyance reciting Strouss’ services in effecting the exchange as the motive for the gift. The general rule, as claimed by counsel for defendant, is that the law requires the parties to the contract of sale, to inform themselves as to the property, and does not exact disclosures from one to the other (Story’s Equity, Sec. 200). This principle of law supposes equal opportunities of information, but is never applied to sustain unconscientious advantage.
There is another view. In her conferences with Strouss, it was the plaintiff’s understanding she was to receive all the Schmalinski lands south of Red river, in all five thousand or six thousand acres. It was afterward falsely represented to her that there were only four thousand acres. This was in aid of the gift of the one thousand acres, Strouss proposed to secure for himself. A paper was prepared, reciting that Schmalinski bound himself to convey four thousand acres for the plaintiff’s dwelling. Schmalinski signed it, and, as we gather from Strouss’ testimony, in that condition was submitted to plaintiff and assented to by her. There is some dis - crepancy in the briefs whether plaintiff ever saw the paper; but the point is not of importance. It is quite certain, she acted on the belief in the representation that four thousand acres was the ■extent of Schmalinski’s ownership. But when Baker’s report was
The grounds we have announced dispose of the case, involving in the main questions of fact; we might have simply announced our conclusions, but that would not have been consistent with the right of the litigant to know the grounds of decision. There are-phases of the litigation on which we have not touched, because not necessary. The case is presented by defendants in this court without reference to any questions of the admissibility of the testimony. We have endeavored to give the requisite attention to all parts of the voluminous record, and to weigh with care the argument of the defence, and if there are points of that argument not discussed in the-opinion it is not because they have escaped our attention, but that the case is dominated by the views we have expressed. The controversy, in our opinion, does not at all involve the question of the value of plaintiff’s dwelling. Hence, we have excluded from consideration the testimony and discussion on that point. The issue is whether the lands were of the character represented. The effect of the alleged deficiency and non-warranty in respect to-property given in exchange, is a question not free from difficulty, but not necessary to be considered. There is a question raised whether the deed to Strouss of the one thousand acres is in issue, plaintiff contending she asked no relief on that ground. We think the issue is substantially made in plaintiff’s last supplemental petition; the general issue was enough in the answer on this, and, for that matter, perhaps, on all points. Besides, the evidence on that point is in the record. We take occasion to say that, in our opinion, the insertion of the non-warranty clause affords no room for any comment, with respect to counsel, if, indeed, any unfavorable comment was intended.
As to the mortgage of Ehrstein, in our opinion, there is no básis to disturb it. We shall endeavor to secure plaintiff against that mortgage.
It is therefore ordered, adjudged and decreed that the judgment of the lower court, in so far as it dismisses plaintiff’s demands against Elise Schmalinski and husband, be avoided and reversed; that the ■exchange of plaintiff’s property for the lands of said Elise Schmalinski, by act of date 30th January, 1892, before Hooe, notary, be and it is hereby annulled, and the parties to said act are hereby reinstated in the ownership, the plaintiff of her dwelling and said Elise Schmalinski of her land, as that ownership existed before said act; that plaintiff do have and recover from said Elise Schmalinski and husband two hundred dollars, taxes paid on said lands, with interest from date of payment; that Samuel Schmalinski and wife do surrender to plaintiff, within twenty days from the filing of the mandate in the lower court, the note made by them of date the 10th of May, 1892, and secured by mortgage on plaintiff’s dwelling, or, in default thereof, that plaintiff do have and recover from said Samuel Schmalinski and wife one thousand dollars, with interest from 1st ■of January, 1893, the amount due on said note; that, in other respects, the judgment of the lower court be affirmed and that defendants pay costs in both courts.