76 Neb. 402 | Neb. | 1906
This was an action instituted by the plaintiff in the court below against the defendant for damages for fraud and deceit alleged to have been perpetrated upon plaintiff by defendant by misrepresentations as to the character, quality, improvement, and value of a forty-acre tract of land situated in Garfield county, Colorado, which was deeded to plaintiff by defendant at the agreed price of $1,200 in part payment for a one-half interest in a stock of merchandise situated in Cedar Rapids, Nebraska, which plaintiff traded to defendant. The petition alleged that plaintiff was without any knowledge of the value, character or improvement on the land; that defendant falsely represented that the land contained improvements in the nature of a house and outbuildings and that nine acres of the land were in alfalfa and under irrigation, and that the land was of the reasonable value of $1,200; that defendant had been on the land, and had personlly examined it and knew the condition thereof; that plaintiff, relying on these representations, accepted the land without making any further investigation as to its value, character, or im
It is conceded in the brief filed on behalf of the defendant that the testimony as to the alleged fraudulent representations of the land, while in sharp conflict, is sufficient to sustain the judgment, and the only alleged error in the proceedings, for which a reversal of the judgment is asked is the giving of paragraph eight of instructions by the court on its own motion. This instruction is as follows: “You are instructed that if you believa from the evidence that the real estate in question was purchased .on the personal representations of the defendant, and such representations were false as to value and improvements, and the plaintiff did not know the land, and had no opportunity to examine it and was prevented from examining the property or making inquiries as to its condition or value by a trick or fraud of defendant, the measure of damages that the plaintiff is entitled to recover is the difference in value 'between the land as represented and as it actually is.” It is apparent that this instruction, construed with other instructions given, is correct and in harmony with the holdings of this court in McKnight v. Thompson, 39 Neb. 752;
“The omission, by one of the parties to an agreement, to make inquiries as to the truth of facts stated by the other, cannot be imputed to him as negligence. Every contracting party has an absolute right to rely on the express statement of an existing fact, the truth of which is known to the opposite party, .and unknown to him, as the basis of a mutual agreement.”
The doctrine announced in this case has been quoted with approval by this court in the case of Hoock v. Bowman, supra, and, we think, correctly states the law.. It is beyond dispute from the testimony in the case at bar that defendant had, or should have had, personal knowledge of the character and improvement of the land which he traded
We therefore recommend that the judgment of the district court he affirmed.
By the Court: For the reasons given in the foregoing opinion, the judgment of the district court is.
Affirmed. .