158 Iowa 287 | Iowa | 1912
The negotiations between Hammett and Hicks ended at that time. Early in January, 1906, the plaintiff herein again opened negotiations for the farm by correspondence, and on January 20, 1906, wrote Hicks as follows: “Referring to yours of January 14th, will say that if the farm can be bought between $25 and $26 per acre, I will come and see you. If not, it will not be worth while to consume your time coming up.” It will be noticed that this letter was written seven days after Hammett had written to the defendant and Hicks, notifying them of the shortage in the acreage of the farm. On January 22d, Hicks wrote the plaintiff as follows: “We have yours of 20th, 1906. If you will come up, we think there is no trouble in making a deal for $8,710.00, which is $26.00 per acre.” On the 29th day of January, 1906, the plaintiff and Hicks agreed upon terms for the farm, and Hicks drew a contract covering the matter, which was signed by the plaintiff and forwarded by Hicks to the defendant in Ottumwa, Iowa. The description of the land in the contract Mras as follows: “All of the north half of the southeast quarter of section 19, and two hundred and fifty-five acres being all that part of the south half of section 20, that lies south and west of Walnut creek, all in township 55, range 15, containing in all three hundred and thirty-five acres, it being the intention of the said Henry S. Merrick to deed and convey to the said Day all of the interest which the said Herrick may have in and to the lands in the above sections, which were conveyed to the said Merrick by one Thomas H. Bradshaw and wife, Annie L. J. Bradshaw, by their deed of conveyance made on the 15th day of March, 1905, and recorded in Book 75, page 590 of the Records of the Recorder’s office of Randolph county,
But, if such were not the case, the evidence of fraud on the part of defendant himself is sufficient to take that question to the jury. The defendant had the contract before him when he made the deed. He was familiar with its contents, and could not help knowing therefrom that the plaintiff was bargaining for three hundred and thirty-five acres, and expecting to get such acreage for the sum that he had agreed to pay for the farm. The defendant at that time knew that the farm did not contain, the number of acres named in his deed from Bradshaw and in the contract that the plaintiff had signed, and, having accepted the terms thereof it was for the jury to say whether or not in executing the deed in the manner he did, he was endeavoring to perpetrate a fraud regardless of the acts of his agent Hicks. The evidence tends to support the claim of the plaintiff that he purchased the farm by the acre and not in gross but, whether he did so or not, he is entitled to recover because of the fraud practiced by the defendant himself and by his agent. Thomas v. Beebe, 25 N. Y. 244; Starkweather v. Benjamin, 32 Mich. 305; Cawston v. Sturgis, 29 Or. 331 (43 Pac. 656); Antle v. Sexton, 137 Ill. 410 (27 N. E. 691); McGhee v. Bell, 170 Mo. 121 (70 S. W. 493, 59 L. R. A. 761.)