118 Ind. 565 | Ind. | 1889
The second paragraph of the complaint, upon which this cause was tried in the circuit court, avers, substantially, that on the 30th day of July, 1880, the appellee and Nancy M. Coppersmith were the owners and tenants in common of one hundred and twenty acres of land in Hancock county, Indiana, of the value of six thousand dollars; that at said date appellant and one William W. Craig were the sons and heirs at law of Moses Craig, deceased; that Moses Craig died intestate the owner of two hundred and forty acres of land, situate in the counties of Marion and Hamilton, of the value of twelve thousand dollars, but at the-date aforesaid there had been no settlement or distribution of his estate ; that appellee and the said Coppersmith agreed with the appellant and the said William W. Craig to convey to them their interest in the said land in Hancock county in consideration of four hundred dollars to be paid to each of them, and in consideration that the appellant and the said William W. would convey to and vest the title in the appellee of one-third in value of all the lands of which the said Moses Craig died seized in the counties of Marion and Hamilton that appellant and the said William W. represented to the appellee that they, as the heirs of the said Moses Craig, were-the owners of one full third of all said lands, and that upon a distribution of their said father’s estate there would be set apart and assigned to appellee, as their grantee, one-third of said real estate in value, of the value of four thousand dollars ; that pursuant to the terms of said agreement, and relying upon said representations and agreement aforesaid, appellee and said Coppersmith conveyed to said appellant and
A demurrer to this complaint was overruled by the court, and the appellant excepted.
The appellant filed an answer in three paragraphs, to which a reply was filed.
The cause was tried by a jury, resulting in a verdict and judgment for the appellee.
The appellant assigns as error:
1st. That the circuit court erred in overruling the demurrer of the appellant to the complaint.
2d. That the circuit court erred in overruling the appellant’s motion for a new trial.
We do not think that the circuit court erred in overruling
The appellant, at the proper time, asked the court to instruct the jury:
4th. “If the defendant made false and fraudulent representations or statements, and the plaintiff did not rely on them, but sought and obtained information as- to the facts from other sources, and then, on his own judgment, concluded to enter into the contract mentioned in the complaint, and" take his chances as to what he should get by reason thereof, then he can not recover in this action on that issue.”
If the appellee did not rely upon the representations made to him by the appellant, but relied upon information obtained from other sources, and upon his own judgment, he can not be heard to claim that he was defrauded by the appellant. To constitute fraud, it is necessary that the party alleging it should show that he relied upon the representations alleged to be false. Pattison v. Jenkins, 33 Ind. 87; Hoffa v. Hoffman, 33 Ind. 172; Meyer v. Yesser, 32 Ind. 294; Bowman v. Carithers, 40 Ind. 90; Hagee v. Grossman, 31 Ind. 223.
The court erred, we think, in refusing to give this instruction. ^
Several other special instructions were asked by the appellant, but we do not think the court erred in refusing to give them.
For the error committed in refusing to give the instruction above set out, the judgment of the court below must be reversed.
Judgment reversed, at the costs of the appellee, with in