180 Iowa 22 | Iowa | 1917
Plaintiff was the owner of a small opera house, with the lot upon which it was built, located in Gilmore City, Iowa. Plaintiff and defendant Small both lived in that town, and defendant Hayden, Small’s father-in-law, lived at Ruthven, also in this state. Prior to the transaction in question, plaintiff and Small had had some dealings with each other, Brechwald having transferred to Small a restaurant business in Gilmore, theretofore conducted by Brechwald, and a year’s lease on the opera house property, the rental of which was estimated at $10 per month. Shortly thereafter, negotiations were had for -a trade of the opera house property, by plaintiff to Small, for some land in North Dakota and Minnesota. It seems that Hayden then owned the lands, but that he soon entered into a contract to sell them to Small. Plaintiff dealt with Small as if he were the owner, and, although Hayden deeded the farm lands directly to plaintiff, he (Hayden), save as hereinafter noted, had nothing to do with the exchange. All parties were familiar with the opera house property, but plaintiff had never seen the Dakota or Minnesota lands. Small had never seen the Dakota lands, and claims that he never saw the Minnesota lands, although there is a dispute in the testimony regarding a statement said to have been made by him to the effect that he had seen them. Both the opera house property and the lands were encumbered, the lands being heavily mortgaged, so that nothing but “equities” were the subjects of exchange. There were 160 acres of the North Dakota land, subject to a mortgage amounting to $10 per acre. There were 80 acres of land in Sherburne
There is a sharp dispute in the testimony regarding the actual value of each and every piece of property. As already stated, Hayden owned the land when the negotiations began. Small said that he did not know much about this North Dakota land, and that he would write and find out about it. It is claimed that, some little time thereafter, Small produced a letter which he claimed to have secured from Hayden, and that in this letter Hayden represented that “there was a house, granary and other buildings, and that there were between 60 and 70 acres in crop of wheat.” Plaintiff’s testimony regarding Small’s statements as to the Minnesota land was substantially as follows:
“About the Minnesota property, he said that he had 120 acres of land in Minnesota that was worth about $40 or $45 an acre, and that there was a little broke on it that probably hadn’t been worked lately. He said that there was a mortgage of $20 an acre on it. He said there were no improvements on it. He said that it was worth $40 or $45 an acre. He said that he had seen the Minnesota land.”
Defendant Ha?'m denied that he ever wrote any letters to Small, or to anyone else, about the land, and none were produced upon the trial. But plaintiff says that Small gave him a letter which purported to come from Hayden,
As to the Minnesota land, it is not claimed that any misrepresentations were made regarding the improvements thereon. The charge here is that Small said it was worth from $40 to $45 per acre. Plaintiff testified that Small said he had seen the land, but this is denied by Small. Small was corroborated by two witnesses, each of whom said that they heard Small tell plaintiff that he had not seen either the Minnesota or Dakota lands. As to the North Dakota land,' there is no direct testimony that either defendant-represented that it was worth $40 to $45 per acre, or any other sum. The strongest testimony with reference to this is that he (Small) priced the land to plaintiff at $40 to $45 per acre. Small says that he priced it at $25 per acre. The statements relied upon by plaintiff, regarding this land, related to the improvements on the land, and to the number of acres in cultivation. The testimony tends to sIioav that this Dakota land Avas not improved as plaintiff says it was represented to be, and that the number of acres cultivated, or in A\dieat, Avas much smaller than is stated by Hayden and Small. There are also statements to the effect that this Dakota land, when traded, Avas Avortli from $1,600 to $1,700. As to the Minnesota land, the claimed representations were as to its value; that is, that it Avas worth $40 to $45 per acre. The testimony tends to sIioav that the lands in Mille Lacs County Avere worth $12 to $13 per acre, and that the land in Sherbourne County was Avorth: one 40, $10 to $12 per acre; and the other, from $5 to $15 per acre. The Da
If the case stood alone upon the issue of fraud and deceit, we would have some difficulty in finding any actionable fraud on the part of either defendant. Neither had seen the lands, and there is some doubt at to whether Hayden ever wrote a letter such as is claimed by plaintiff. Hayden and Small did talk over the matter, and Hayden repeated to Small what he had heard from others regarding the lands, their value and the improvements thereon. We are in considerable doubt, under this record, as to whether Small did more than repeat to plaintiff what Hayden told him, at the same time saying that this was a second-hand report, based upon information received from Hayden, he (Hayden) having no knowledge as.to the facts; but, as we are of opinion that the case must be made to turn on another proposition, we should dismiss the claim of fraud and de
About a year after closing the transaction, plaintiff tried to sell the Minnesota land to strangers. It is quite apparent from this record that, even if defendants were guilty of fraud and deceit, plaintiff was content to rely upon his knoAvledge arid information received regarding the lands, or, after receiving information regarding the Minnesota land, he chose to ratify the deal, or rather, failed to exercise the diligence required of one who claims to have been defrauded. In such cases, the defrauded party is required to act with promptness, and to disaffirm the contract because of the fraud practiced upon him.
We are satisfied with the decree of the trial court, and. in view of the decided conflict in the testimony, we feel that some weight should be given to the opinion of the trial court, which had all the witnesses before it. The decree must be, and it is, — Affirmed.