180 Iowa 251 | Iowa | 1917
I. There was error in striking out allegations that fraudulent representations were made, to the effect that the land leased was free from noxious weeds. That is cured because substituted pleading upon which the case was /tried has such allegations.
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III. The cause was tried on a complaint that the lessor fraudulently represented that the land was free from noxious weeds. The jury could find that there was a representation that the land was free from such weeds, except some coekleburs on a small part thereof, and find that it was known to be false when made. Under the evidence, it could not find otherwise than that it was in fact false, and that practically all of the farm was full of noxious weeds to an extraordinary extent. The representation is neither “trade talk,” mere puffing nor a mere expression of opinion, but, if false, an actionable representation. In so far as sustaining the motion to direct verdict rules otherwise, its sustaining was error.
The jury could find that lessee lived 20 miles from the farm, and was 14 miles from it when the lease was made. Under the evidence, it would be compelled to find that, at the time and for a month after lessee moved on the farm, it was covered with snow to a depth of 2 to 5 feet, and that, when the lease was made, lessor said there was no use for lessee to go and see the farm, because there was all the way from 2 to 5 feet of snow on it, and lessee couldn’t see the farm if he went there. It is demonstrated, moreover, that this-was the fact until after the lessee had been on the farm for some time. And the motion errs in stating that there is evidence that lessor asked lessee, prior to renting, to go and look it over. Lessee testifies that the representations induced him to enter into contract and to move upon the farm.
If the vendor dissuades the vendee from examining the property on the assurance that it will be a useless expense to do so, and such representations are relied on by the vendee, the representations of the vendor as to value may constitute such fraud as to subject him to liability in damages. Mattauch v. Walsh, 136 Iowa 225. And when he makes representations as to the character of the land which he offers to sell, and insists on the consummation of the contract within such time as not to allow defendant an opportunity to inspect the land, he is bound to know that defendant relies on his representations, and it , is immaterial whether the representations were knowingly false, if they were false in fact. Brett v. Van Auken, 99 Iowa 553.
We think the court confused this with a case wherein
The notice of appeal set out in the abstract does not state what was appealed from, but does say that “plaintiff perfected an appeal to the Supreme Court of the state of Iowa,” by duly serving the counsel who appeared for the plaintiff, and the clerk of the district court of the county in which the motion and the suit for rent and counterclaim thereto were at one time pending and determined. New of our decisions, if any, give much light on whether such a state of the record brings up a collateral matter, and, in a sense, independent matter, disposed of in or in connection with a suit which goes to final judgment. And whether this record does that is the exact question. Where the notice is specific enough to limit the appeal to being “from the judgment,” it is presumed that nothing but the final judgment and intermediate rulings and orders in the suit which culminates in such judgment are brought up. Searles v. Lux, 86 Iowa 61, at 62; Geyer v. Douglass, 85 Iowa 93,
“Appellant gave notice of appeal to the Supreme Court to defendants and to the clerk of the district court of Lee County, Iowa, at Keokuk, in which court the case was heard, and secured the clerk his fees.”
We held that, in the absence of setting out the notice in full, or an amendment asserting that no appeal was taken from any order or judgment of the court, we would sus
“A motion may be made to discharge the attachment or any part thereof, at any time before trial, for insufficiency of statement of cause thereof, or for other cause making it apparent of record that the attach-i ment should not have issued, or should not have been levied ! on all or on some part of the property held.” Section 3929. Code, 1897.
The case of McLaren v. Hall, 26 Iowa 297, at 300, is the foundation case in dealing with this statute provision, and it merely holds that the testimony should be clear and entirely satisfactory; otherwise, the party should be left to the ordinary means of proper action for testing the liability of the property levied upon to be seized under the writ. Cox v. Allen, 91 Iowa 462, and Union County Inv. Co. v. Messix, 152 Iowa 412, hold just that. None of these attempt to say what is a sufficient making apparent of record, nor what is necessary to make evidence so clear and satisfactory as that the movent should not be remitted to the ordinary form of action. The appellant proceeded by filing motion supported by affidavit. We think he made both his complaint and his proof “apparent of record.” And we perceive no good reason why the affidavit in this case, contradicted by nothing, and clearly setting out what property was claimed to be exempt, and the facts which in law constitute its exemption, whs not clear and satisfactory proof. It is, therefore, our judgment that it was error to overrule the motion.
The judgment and the order on the motion to discharge must be reversed. — Reversed and remanded.