122 Minn. 130 | Minn. | 1913
Defendant owned a quarter section of land in Olay county, Iowa. Plaintiff owned 400 acres in Murray county, Minnesota. On June 19, 1906, they made a contract for ah exchange. This contract was consummated in December, 1906, by 'delivery of deeds. The deed to the Iowa land from defendant to plaintiff recited a consideration of $12,000, described the land by government subdivisions, and as “containing one hundred sixty acres, more or less, according to government survey.” The land in fact contained only 145.12 acres. It is not claimed that the mere fact that this government subdivision was short gives plaintiff any right to relief. Plaintiff’s claim is “that he accepted the deed by mistake induced by the fraudulent representations of the defendant as to the number of acres of land in the Iowa quarter section.” He claims that defendant represented that this tract contained full 160 acres; that the price agreed upon was $75 an acre, and that the total price of $12,000 was arrived at on that basis. The defendant denies that he made any such representation.' This is the issue. Counsel engaged in some controversy as to whether the recovery asked was on contract or in tort, or both. We are not particular about names. The gist of the action is an alleged misrepresentation by which a contract .was obtained. There are no difficult questions of law involved. The fact of the misrepresentation is the question in the case. The jury has determined this question of
“I said to Mr. Peters, I says: ‘What is the reason with this line, it looks kind of crooked to me’ * * * He says ‘no, it does run a little northeast.’ ‘Well, according to that,’ I says, ‘it may be a shortage in the land then.’ He says, ‘No, it isn’t;’ he says, ‘It is too full on the northeast corner, that will fill out the southeast corner to make it 160 acres.’ I says to him, ‘Did you have it measured,’ and he said ‘no.’ I says, ‘How do you know it is 160 ?’ ‘Well,’ he says ‘he farmed it for eight years and he ought to know by this time it is 160 acres.’ ”
Plaintiff further testified that while the contract was being drawn he again asked defendant, “Does this land contain 160 acres? He •said ‘yes,’ ” that the contract was then read over down to about where it said, “one hundred and sixty acres more or less according to government survey;” that plaintiff then said that the “more or less” wasn’t right, that he wouldn’t sign a contract unless it be 160 acres; that Mr. Flint, who was preparing the deed, then asked both of them what to do; that plaintiff said he wouldn’t sign a contract unless that be stricken out, and that Mr. Peters said, “Well,” he said “it would be all right to have it striken out then.”
Of course the preliminary contract was merged in the deed. In the absence of fraud or mistake it was fully discharged and has no further vitality as a contract. The mere fact that the deed varies from the preliminary contract is not in itself proof of fraud in procuring the deed. Whitney v. Smith, 33 Minn. 124, 22 N. W. 181; Slocum v. Bracy, 55 Minn. 249, 56 N. W. 826, 43 Am. St. 499. See also Thwing v. Davison, 33 Minn. 186, 22 N. W. 293. What plaintiff contends is that this “contract * * * and the conversation had between the parties leading up to its execution were competent evidence for the.purpose of showing the fraudulent representation
Defendant’s version of the verbal negotiation contradicts that of plaintiff. The record of defendant’s testimony is as follows: “Q. Did he ask you if the land was a full quarter? A. Yes. Q. And what did you say ? A. I say no. * •* * Q. Go on and state what he said. * * * A. I go to sell it or trade it off for Minnesota land; then I asked him what he take for his land here in Minnesota, he said, I take 31 and a quarter — no, he says, I promise you 400 acres here in Minnesota and take 31 and a quarter; then I say I can’t, promise you a full 160 acres, I go to trade it for $12,000, and you have to take it the way it is, and otherwise I won’t trade.” Defendant is corroborated by his wife and one other witness. It also appears that a second contract was later on prepared in which the words “more or less” were inserted after the number of acres.
Clearly this testimony raises an issue of fact. It is obvious that the determination of this issue of fact was for the jury. The case has been twice tried before a jury and a verdict returned for defendant on each trial. This court should not disturb this verdict. The evidence is ample to sustain it.
Order affirmed.