48 Iowa 378 | Iowa | 1878
The plaintiff demurred upon the ground, among others, that the answer does not show that the defendant relied upon the representations of the plaintiff, and we have to say that we think that the demurrer is well taken. While it is averred in the answer that the defendant was induced by the false and fraudulent representations to execute the note sued ujjon, still it is necessary for us to look at the subject-matter of the representations to enable us to determine whether the defendant can be considered as having relied upon them. Kerr on Fraud and Mistake, page 77. In mere matters of opinion, every one is presumed to rely upon his own judgment. Story’s Equity Jurisprudence, § 179. The defendant does not aver that the land did not contain coal, oil and mineral. No presumption that it did not can be entertained for the purpose of establishing fraud. We may, then, take the fact to be (nothing being shown to the contrary) that the land did contain coal, oil and mineral, and that what the plaintiff said about it was a mere exaggeration. It is not averred that the plaintiff represented that it contained any particular quantity of coal, oil and mineral. 'He merely said that it contained large deposits. What would constitute large deposits of coal, oil and mineral, in distinction from deposits which are not large, is necessarily a matter of opinion. It seems to be well settled that mere exaggeration, expressed in vague and general terms, will not constitute fraud. See Kerr on Fraud and Mistake, page 82, and cases cited.
But no allegations of fraud, even if properly made, can, we think, avail the defendant. The plaintiff’s contract is with the Buffalo Creek Oil Company. If the plaintiff has been guilty of fraud, a right of action against him has accrued in favor of the company. The plaintiff is certainly not liable to both the
II. It is alleged as error that the court erred in rendering judgment against the defendant under the state of the pleadings. In the matter of submission, the record simply shows that the case was submitted to the court without a jury. It does not show upon what evidence, if any, it was submitted, and we conclude that it was either submitted upon the pleadings, or upon the evidence used upon the former trial. If it was submitted upon the pleadings, without evidence, the judgment is correct, for the execution of the note is admitted; and as to the other matters of defense, if they were allowable, the burden of proof was upon the defendant. If the case was submitted upon the evidence used upon the former trial the judgment must be held to be correct, according to the decision upon the .former appeal.
It is claimed by the defendant that judgment was rendered pro forma, and no trial allowed, but, as we have seen, no different judgment could have been properly rendered, unless the defendant had other evidence to offer, and it is not claimed that he had.
Affirmed.