11 Iowa 295 | Iowa | 1860
A question preliminary to the consideration of the errors assigned, first demands our attention. During the trial testimony was offered by appellant which was rejected, to which defendant, in the language of the bill of exceptions, “ at the time excepted.” These instructions were asked by plaintiff and given, and defendant in like manner excepted. And so he did again when instructions asked by him were refused. The verdict being for plaintiff, defendant moved to set it aside and for a new trial; and this motion, “ owing to a press of business,” was continued to the next term. At the succeeding term this motion was overruled, and the bill of exceptions was then settled, reciting all the above facts, as well as the order overruling said motion. It is now moved to exclude this bill of excep-. tions for the reason that it was not settled and signed at-the term at which the trial took place and the exceptions were taken. Whether the appellee objected or consented to the signing of the bill, does not appear.
If this bill had been settled in vacation, we think, upon the authority of Claggett v. Gray, 1 Iowa 20, it should be excluded from the record. Where, however, the motion in arrest and for a new trial has been continued to the succeeding term, we are of the opinion that it is sufficient to embody the several exceptions into one bill and have it signed by the judge, unless the dissent of the appellee is shown. The better and safer practice doubtless is to reduce the exceptions taken prior to the verdict to writing, before its rendition, and certainly during the term. And if the opposite party will not consent to the postponement beyond the term'it must be done. If, however, the party excepting sees proper, at his own hazard, to thus delay and from a press of business, as in this case or otherwise, the disposition of his motion for a new trial is continued to a succeed
II. Thus viewing the record we pass to the consideration of some of the errors assigned.
The action is for fraud in the wilful misrepresentation of defendant in the sale to plaintiff of certain lands. These misrepresentations are alleged to consist in statements made as to the quality of the land; the quality and quantity of the timber thereon; the character and capacity of a saw mill thereon erected; the number of saw logs on the land and sold therewith, as well as in some other respects not material to be now mentioned. All these averments are denied and the testimony seems to have been directed to the issue thus made. At the request of the plaintiff the court instructed the jury, “that when a party misrepresents a fact for the purpose of misleading and imposing upon the other party, to his injury, he is guilty of a positive fraud, and it does not matter by what means such misrepresentations were effected, whether by silence, by acts, or by words, or signs or artifices of any kind, it is a fraud if the party upon whom they are practiced is actually deceived thereby; nor is it necessary that there should he a wilful intention to deceive; hut if the misrepresentation is made through mistalce, carelessness or ignorance, the result is the same and is a fraud.’’ This instruction was objected to by defendant, and the giving of it is now assigned for error.
The case of Holmes v. Clark, 10 Iowa 423, must be regarded as decisive of the question here presented. The rule is there clearly stated, that before a defendant can be held liable in an action on the case for deceit, or before the plaintiff can recover for damages sustained in consequence of the wilful mis-statements of the vendor,it must appear not
We do not stop to discuss the further proposition that defendant might be liable if he made the representations in a spirit of recklessness, or if he made them as of his own knowledge to be true, (and not as mere general assertions) when in fact they were untrue, for the reason that the instruction complained of goes still further and holds him liable if he made the representations through either mistake, ignorance or carelessness. This rule ignores too completely the necessity of proving the scienter, or that which, in some excepted cases, has been held to supply its place. Nor again need we enquire whether, (following Williamson v. Alanson, 2 East. 446,) plaintiff might not recover upon a proper petition in an action on the case for a breach of warranty -without evidence that defendant knew it to he false at the time it was given, for the reason that this action is for the deceit, without reference to a warranty.
The case of Collins v. Denison, 12 Met. 549, referred to by appellee, turned not upon the point now under discusión, but whether in addition to the false representations and the knowledge thereof by defendant, as also evidence that plaintiff was thereby induced to make the purchase, the vendee must also prove that the vendor made the representations with the intent thereby of inducing the trade. We need only say that the distinction between that case and this is too manifest to need comment. Nor is the case of Taylor v. Fleet, 1 Barb. 471, more applicable. That was a hill in equity to rescind the contract, and was placed upon the ground that Taylor’s object in purchasing the farm was to obtain one adapted to a particular faisiness; that he was ignorant of the actual character and capabilities of that purchased;
The case of Monroe v. Pritchard, 16 Ala. 785, cited by appellee, is not before us, but from what is stated in argument we conclude that the fact that the representations were recldessly made, had much to do in its determination. That defendant would be liable for representations made through either mistake, ignorance or carelessness, is by no means deducible from the doctrine contained in Story on Sales, section 165.
This conclusion renders it unnecessary to examine the other errors assigned.
Judgment reversed.