126 Iowa 31 | Iowa | 1904
In the year 1897 the defendants were the owners of substantially all of the capital stock of a corporation known as the Clay County Land & Cattle Company of Texas. They were also the officers and directors of said corporation. Nearly or quite all of the assets of the corporation were represented by a ranch in Clay county, Texas, which it had advertised for sale. At the same time the plaintiff was the owner of a farm of 1,760 acres in Franklin county, Iowa, which he desired to dispose of; and, through efforts of certain real estate brokers, the parties were brought into negotiation for an exchange of lands, which was effected on or about October 26, 1897. There was no conveyance of the Texas land to the plaintiff, but the sañie end was effected by a transfer of the capital stock of the corporation. On July' 28, 1898, this action was begun at law to recover damages on account of alleged false and fraudulent representation by the defendants as to the quantity of land contained in the ranch, and upon -trial
On these allegations, judgment is demanded against the defendants in the sum of $27,000. A demurrer by defendants to the second count of this petition, and a motion to strike the same as stating no cause of action, were overruled, and defendants answered, admitting the exchange of property, but denying all other allegations made by the plaintiff. On trial to a jury there was a verdict for the defendants, and from the judgment rendered thereon the
It should also be stated, by way of preface to the discussion of the errors assigned, that the trial court refused to submit any question to the jury upon the second count of the petition, but submitted the case on the theory that plaintiff’s cause of action was upon two counts only — first, fraud and false representations as to the quantity of land; and, second, representations and statements amounting to a warranty of such quantity.
It is true that the law does not create any hard and fast presumption that defendants had read the receipts, but when it is shown that they had in their own hands papers containing material information concerning valuable property, of which, in their corporate capacity, they were the owners; that they were vitally interested in knowing that .the taxes upon all the property were paid; and that they preserved such papers and passed them to the purchaser — it is not an unreasonable inference that they knew what was shown thereby. The evidence offered should have been admitted, and allowed such weight and effect upon this phase of the case as the jury might find it entitled to.
3. iNSTRUCTIONS:intent to de-‘ II. The trial court, instructed the jury that the first count of the petition stated a claim based on alleged false and fraudulent representations concerning the quantity of land in the ranch, and that, in order to recover thereon, plaintiff must establish by a preponderance of the evidence that defendants did make the alleged representations; that the representations were false; that plaintiff believed and relied thereon, to his injury, in entering into the contract; that defendants made the representations knowing them to be false; and also that they made the representations, intending thereby to deceive and mislead the plaintiff. The proposition that plaintiff was required not only to show that the defendants made the alleged false representations with knowledge of their falsity, but also to show that they intended thereby to deceive, was stated once or twice in each of five several paragraphs of the charge. The rule thus repeatedly emphasized to the jury is challenged by the appellant, and we think the objection must be held well founded. It is not correct to say that when the plaintiff in an action of this kind has proved that the alleged false representations were in fact made, and that defendants knew them to be false when made, there still remains upon the plaintiff the burden of proving that
In Case v. Ayers, 65 Ill. 142, the trial court instructed the jury, substantially as was done in the present case, that to justify a verdict for plaintiff on a charge of false and fraudulent representations, it must be shown that the representations were false to the defendant’s knowledge, “ and that they were made by the defendant to deceive and defraud the plaintiff.” This instruction was held erroneous because “ nothing more was required to entitle plaintiff to recover than that defendants should have known the alleged false representations to be untrue.” A very similar case is found in Collins v. Denison, 12 Metc. (Mass.) 549. There
The opinion proceeds:
It is also contended that the maxim caveat emptor applies, and bars relief, and that the plaintiff was as much bound to ascertain the true quantity as the defendant, and that by admeasurement he could have discovered the truth of the fact, and for that reason he is not entitled to sustain his bill. We do not remember any case in which the maxim quoted has been used by the chancellor in such manner as to compel him to shut his ears against false representations, or to give latitude to the vendor of real estate to state facts untruly without any responsibility. The maxim will and ought to have more influence in the sale of real estate than that of a chattel. The former, from its nature, is open to a less precarious inspection as to quality, and, from its perma*42 nent character, cannot hide many defects which may be concealed in a chattel. For instance, misrepresentations of its fertility and productions, or even the validity of its title, may be more easily detected; but the quantity requires greater skill and a larger proportion of science than even in this age is acquired by a majority of men. Almost every man may be capable of deciding on the quality of land, while but few can ascertain its quantity with accuracy. This is ascertained by a surveyor and a mathematical instrument, and his decision determines the quantity expressed in most of our title papers. In this matter, therefore, ^specially when the title papers, as in this case, are silent, each vendor ought to be bound to speak truly.
See, also, 2 Mechem, Sales, section 938; 2 Warvelle, Vendors, section 952; McGibbons v. Wilder, 78 Iowa, 531. Nor is this rule peculiar to suits in equity. In Stark-weather v. Benjamin, 32 Mich. 305, the plaintiff brought an action at law to recover damages for false representations made by defendant as to the number of acres in a, tract of land conveyed by the latter to the former. We quote from the opinion written by Campbell, J., as follows:
The defense rested mainly on the ground that the purchaser saw the land and was as able to judge of its size as Starkweather. We do not think the doctrine that, where both parties have equal means of judging, there is no fraud, applies to such a case. The maxim is equally valid that one who dissuades another from inquiry, and deceives him to his prejudice, is responsible. It cannot be generally true that persons can judge of the contents of a parcel of iand by the eye. When an approach to accuracy is needed, there must be measurement. When a positive assurance of the area of a parcel of land is made by the vendor to the vendee, with the design of making the vendee belifeve it, that assurance is very material, and equivalent to an assurance of measurement.
The rule of the ease here cited is especially applicable to facts like those at bar, where the buyer is referred for information to the seller’s own agent, who answers the in
refused to give any express guarantee as to quantity of land. A refusal to warrant or guarantee the quantity or quality of property sold is not inconsistent with liability for false representations. Haight v. Hayt, 19 N. Y. 464. In the cited case the plaintiff purchased land at an assignee’s sale. At the time and place of sale a third party was present and claimed to have a mortgage lien upon the property. The assignee expressly refused to warrant or guarantee the title against the claim thus made, but falsely stated to the bidders that the claim was worthless and that no such mortgage existed. Eelying on this assurance, the plaintiff purchased the land, and the mortgage was afterward established against it. Action was thereupon brought to recover damages. On trial the court refused an instruction asked by the defendants to the effect that, if the assignee refused to warrant the title against the mortgage, the plaintiff must be held to have purchased at his own risk. On appeal this ruling was affirmed. The court, by Grover, J., says:
Upon what principle the refusal of Hayt to warrant against the claim of H'elevan, the existence of which he denied, is to protect, him, if the denial was made with a design to deceive and defraud the purchasers, is not perceived. * * * The refusal of Hayt to warrant against the claim did not prove that plaintiffs knew of, or believed*44 tbat it existed. The question was whether they were deceived by Ilayt’s representation. If they believed that Delevan’s claim was valid, they were not deceived, and could not recover. The refusal of Hayt to warrant was proper evidence for the consideration of the jury upon this point, but did not constitute a legal bar to the action.
A refusal to. warrant, or a request that the buyer go and examine the property for himself, may sometimes serve to increase the misleading effect of a false representation. Webster v. Bailey, 31 Mich. 36; Rood v. Chapin, Walker’s Ch. (Mich.) 19.
It follows from these considerations, as we have already suggested, that the record before us makes no such clear and undisputed case for the defense that this court can say, as a matter of law, that the errors complained of were without prejudice.
Y. Complaint is also made of the instructions as a whole, and of rulings which we do not here specifically recite upon the admission of evidence, but we shall not discuss them. In many instances the exceptions are not well taken, while others involve questions not likely to arise upon a retrial. It is to be said of the instructions as a whole thafithe trial court, in its commendable anxiety to avoid error in omitting any element needed for a proper explanation of the rules to be observed by the jury, went perhaps to the other extreme,, and involved the issue in some.obscurity by an unnecessary fullness and repetition of statement, but we think there was no error in this respect which would call for a reversal.
9. Transfer ofland: fraud; damages. The fact that the Texas land was held by a corporation, and that the exchange with plaintiff was affected by a transfer to him of the capital stock of the corporation, instead of by a conveyance of the land itself, has been the occasion of considerable confusion m the statements and arguments of counsel on both sides; but the difficulty thus arising pertains to the terms employed, rather than to the essence of the discussion. Speaking generally, the defendants were the corporation, the ranch was its sole asset, a transfer of the capital stock was in fact a transfer of the ranch, and whatever served to increase or decrease the value of the land increased or decreased the value of the stock in precisely the
■ For the reasons stated, a new trial must be ordered, and the judgment appealed from is reversed.