57 Ind. App. 421 | Ind. Ct. App. | 1914
This is a suit by appellee against appellants to recover damages for fraud, alleged to have been perpetrated in an exchange of real estate. Issues were formed by a general denial to the complaint. The cause was tried by the court and upon request a special finding of facts was made and conclusions of law stated thereon. The conclusions were in favor of the plaintiff, appellee, and judgment was rendered in her favor against both defendants for $1,550. Each
As far as material to a decision of the questions presented by the briefs, the substance of the findings is as follows: On February 21, 1910, appellee was the owner in fee simple of certain real estate in the city of Valparaiso, Porter County, Indiana, which was encumbered by mortgage for $1,650; that appellee is a widow with six children, her husband having died in May, 1908; that appellants are husband and wife and they and appellee, and her husband in his lifetime, were friends and visited each other; that appellee’s husband before his death expressed confidence in the integrity and honesty of appellant, George E. Firebaugh; that appellee is a woman of more than ordinary intelligence, but inexperienced and unaccustomed to business transactions; that appellant, George E. Firebaugh, is a man of experience and more than ordinary business ability ; that appellants knew appellee was unfamiliar with business methods and not accustomed to transacting business; that after the death of her husband appellee visited appellants several times and they visited her, and were all members of the same church; that appellee had confidence in the honesty and integrity of appellants and after the death of her husband sought and obtained the advice and assistance of said George E. Firebaugh on certain matters of business; that one A. T. Collison, a brother of said Mary Florence, lived in Bartlesville, Oklahoma, and was in partnership with one Smysor; that they had an addition of lots to said city, known as Capitol Hill Addition; that the lots were of different sizes and values, some were connected with sewers and sidewalks and were nearer the business portion of the city than others; that the value of the lots on February 21, 1910, was from $200 to $750, each; that appellee had some correspondence with said Collison and Smysor
On the foregoing finding the court stated its conclusions, (1) that appellee recover of appellants $1,550; (2) that she has a lien on the real estate in Valparaiso, describing it, to secure the payment of said amount and that the lien be foreclosed and the real estate sold to pay the amount due her.
On the other hand appellee alleges that under all the circumstances of the ease shown by the finding of facts, the representations made were of facts and not mere trade talk or opinions as to value; that a relation of trust and confidence is shown, which put upon appellants the duty of revealing to appellee all material facts in their knowledge affecting the transaction; that they failed so to do- and fraudulently made false statements of price and value, knowing that appellee was ignorant of the value of the property, and intentionally withheld from her information concerning the location and value of the lots and concealed from her the plat in their possession at the time the contract was entered into for the fraudulent purpose of inducing appellee to enter into the contract, well knowing at the time that she trusted and confided in their friendship, honesty and truthfulness, and accepted as facts and relied upon the statements made in regard to said lots; that she would not have entered into said contract but for her confidence in them and reliance on the truthfulness of the representations made concerning the value of said lots.
These facts show that appellant Mary Florence assumed to know the value of the Oklahoma lots and that her opportunity of knowing the value of the lote in question was superior to that of appellee; that she stated the price paid and the value, not as mere trade talk, or opinion, but as a fact intended to induce appellee to act thereon, well know
The court did not err in its conclusions of law. Judgment affirmed.
Note. — Reported in 107 N. E. 301. As to false representations in sales of real estate, see 2 Am. Dec. 77. Upon the question of