Franke v. Kelsheimer

Jun 19, 1917

Reporters:
Before:: Salinger

Salinger, J.

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.

1’ uion^ropiosenIon01( ?) orm fact (’) II. A number of other representations alleged were stricken out. It was done on motion, in substance, that they were not actionable, were mere statements of opinion, and laid foundation for damages that were too remote and speculative. The motions should have been overruled. But as .to some of these allegations, evidence tending to sustain them was permitted on the trial without objection. For that reason, we will not consider their striking. This leaves for consideration whether it was error to strike out the following allegations: It was represented that the land was a good farm, and as good as the average one in the vicinity in which it was located, when in truth it was old, run down, its soil was nearly exhausted, and the whole farm had only about 27 acres of fairly good land; that it was level and “laid well;”, that it was neither rough nor hilly, when in truth 80 acres of it was so rough and hilly that it could scarcely be farmed; that it was tillable, was in a good state of cultivation; that it was falsely represented the farm was capable of producing and would produce 50 to 60 bushels of corn per acre without extra care or attention; that it would raise as much of a crop of oats, wheat and other crops as was ordinarily raised in the vicinity; *254that there were 80 acres of fall plowing done in workmanlike manner, when all the plowing was much less than that, and all of it poor, owing to the presence of weeds when the plowing was done. It has been held that a false representation that a stated portion of the land is tillable, may be actionable. Brett v. Van Auken, 99 Iowa 553. So df one that land is free from weeds and properly drained. Hetland v. Bilstad, 140 Iowa 411, 419. Or one that a farm is ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍not wet. Dennison v. Grove, (N. J.) 19 Atl. 186. So of one that a furnace will heat a house leased. Pryor v. Foster, (N. Y.) 29 N. E. 123. False and material representations as to the quality of land may be actionable. Mitchell v. Moore, 24 Iowa 394. The seller has the right to exalt the value or quality of his own property to the highest point credulity will bear, provided his efforts stop at puffing or praise; but statements of value or of quality may be made with the purpose of having, them accepted as of fact, and, if this is done and so relied on, they are to be treated as representations of fact. Hetland v. Bilstad, 140 Iowa 411, 415. It was error to strike these allegations.

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2. uandlobd and £raudSentiySes’ measure a?ses’ pleadings. Allegations were stricken that defend-ant planted 120 acres of corn which produced but 1,700 bushels, most of it a very poor quality and light and chaffy; that 50 acx’es put in wheat produced 400 bushels, 65 acres of oats, about 550 bushels, and 35 acres of meadow, about 35 tons of hay. Also, allegations that, if the land had been as represented, the same lands would have produced 6,000 bushels of corn, 800 to 1,000 bushels of wheat, and 2,600 bushels of oats; that this deficiency in crops was due to the poor quality of the farm, and defendant thereby damaged in a sum stated. We think the striking was justified. See Dilly v. Paynsville Land Co., 173 Iowa 536.

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3. evidence : parol as affecting-writing: fraud-induced contract. A motion to strike certain allegations was sustained, on the grounds that they were sham, irrelevant and immaterial, and state no cause of action because they would tend to vary, alter and modify the terms of the written lease. The objections were not good. The allegations stricken were of fraudulent representations that induced the making of a lease. Such may be proved in parol, even though they contradict the written lease. The rule excluding evidence contradictory of a written instrument does not apply when fraud is the gravamen of the action or gist of the defense. Humbert v. Larson, 99 Iowa 275; 6 Encyc. of Ev. 24, 25.

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.

4. eiued: aeception conslitutmg fraud: duty to investigate: portunity^ preination. exam’ IV. Another ground of the motion that was sustained asserts that defendant has failed to prove that plaintiff made any false r r J or- fraudulent representations upon which defendant had any right to rely, because no attempt was made by plaintiff to defraud or prevent defendant from making his own independent investigation of the premises, and the affirmative and undis*256puted evidence shows that, if he had made investigation, either physical or by inquiries in the neighborhood, he could readily and eásily have ascertained the true condition of the farm, and so the damages, if any, have arisen by his own negligence. It should not have been sustained.

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 *257one examines a farm and finds it is not as represented, and yet goes upon and farms it without objection, and sues for damages caused by deceit. Then, he may not recover, because the deceit did him no injury. He ‘suffers because he voluntarily chose to suffer by acting after lie ivas no longer deceived. That is not this case. Plaintiff falsely represented the farm to defendant; told him he could not make efficient investigation. Defendant believed him, and could not, with any effort within reason, ascertain the truth until after he had changed his position. In such a case, he could rescind, but Avas not compelled to. At his election, he could sue for damages and recover the difference betAveen the actual and the represented value of the farm in rental. Humbert v. Larson, 99 Iowa 275, at 281. He may make the claim by counterclaim when sued for rent. Sisson v. Kaper, 105 Iowa 599; Herrin v. Libbey, 36 Me. 350; Dennison v. Grove, (N. J.) 19 Atl. 186; Barr v. Kimball, (Neb.) 62 N. W. 196; Peck v. Brewer, 48 Ill. 54. This, though he has paid the rent in part. Pryor v. Foster, (N. Y.) 29 N. E. 123; Reger v. Henry, (Okla.) 150 Pac. 722. One who buys is not estopped to recover damages caused by showing the wrong tract of land, upon the theory of failure to exercise ordinary diligence, if the truth could have been learned only by employing a competent surveyor. McGibbons v. Wilder, 78 Iowa 531. In Hale v. Philbrick, 42 Iowa 81, Carmichael v. Vandebur, 50 Iowa 651, and State v. McConkey, 49 Iowa 499, we say that one may rely upon representations as to the ownership of property, its location and the like, though it is not shown that he instituted inquiry by consulting records or plats. In Ladner v. Balsley, 103 Iowa 674, the question of ordinary care was held to be for the jury, when the tenant testified that, before the leasing of a farm, he and the landlord’s agent went to examine the farm, but that they found it too muddy to go over it, and so he relied on the agent’s statements as to the number of *258acres under cultivation. In Dennison v. Grove, (N. J.) 19 Atl. 186, an action for rent and defense of false representations inducing the lease, whether the representations of the lessor were fraudulent was held to be for the jury, where the representation was that the farm was not wet, whereas, though the surface appeared to be dry, it was wet and miry at the depth of a few inches and unfit for farming, though it appears that, before accepting the lease, the lessee personally examined the premises. While, in Bell v. Byerson, 11 Iowa 233, and McGiblons v. Wilder, 78 Iowa 531, we approve the rule stated in 5 Am. & Eng. Ency. of Law (1st Ed.), 340, that “It is the duty of every person in transacting business to use ordinary care and prudence. If false representations are made regarding matters of fact, and the means of knowledge is equally open to both parties, and then one party, instead of informing himself, sees fit to put himself in the hands of the other, whose interest it is to mislead him, the law will give him no remedy for his injury,” — we say, in the McGiblons case, that yet “A man to whom a particular and ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍distinct representation has been made is entitled to rely on the representation, and need not make any further inquiry, although there are circumstances in the case from which an inference inconsistent with the representation might be drawn,” — and Kerr, Fraud & Mistake, 80, is cited in support. It was error to sustain this part of the motion to direct.

5. witnesses : belated objec V. The contract was that $4.50 an acre rent was to be paid for 205 acres, and half t(ie CTOp for the rent of 115 acres. The sustained motion to direct verdict against defendant asserted: (1) That the damages attempted to be proved are not actionable because they are remote, indefinite and uncertain; (2) defendant “has not shown any standard” by which court or jury can measure or determine his alleged damages; (3) he has failed to prove‘any dam*259ages; and (4) the record shows affirmatively, and without conflict, that the land, as it was, was worth as much as the rental agreed to be paid.

6.’landlord and tenant : leases: dnceauli?Mes *ln” images. of We are at a loss to understand how the motion could have been sustained on these groun<is- So fra’ froni appearing without conflict that the farm in its actual condition was worth all that is paid for rent, it appears without dispute that it was not worth so much. One witness on the point, Reyman, at first said he did not know what the reasonable rental value of this farm was, and that he couldn’t give an estimate of it; but was allow.ed then to add, without objection, that, if it had not had any Russian thistles, sunflowers or cockleburs on the north 40, it would probably have been worth $4.50 an acre rent. He said lat; er that he is acquainted with the reasonable rental value of farms to a certain extent. The defendant testified, without any objection, that the reasonable rental value of the farm in the condition it was actually in, was about $1 an acre, and that, if it had been as represented, its value would have been $5 or $6 an acre. When the witness finished his testimony, there was no motion to strike. Thereafter, three witnesses testified for defendant, and he rested, and still no objection was made to the testimony on comparative value given by defendant as a witness. It was only as part of the motion to direct verdict that it was moved to strike his testimony, with claim that his cross-examination disclosed that he had no knowledge or information such as entitled him to express an opinion; that he knew nothing of rental value of lands in the neighborhood, knows of no similar farms rented in’ the neighborhood for that or previous years; and that, in giving this value, he was giving his own individual opinion. The objection came too late, even if the record sustained what it asserts, and it does not; The only shadow of ground for making the claim is that defend*260ant testified that he had great difficulty in giving an opinion as to what the rental value of the farm was as based on farms in the neighborhood generally, because he knew of no other farm that was so thickly covered with Russian thistles, cockleburs and sunflowers. Of course, this difference in rental value was a proper measure of damages. Adair v. Bogle, 20 Iowa 238.

7. appeal and be-appeal^“incitáis presumption! VI. Before the trial was begun, but after the petition was filed, defendant filed a motion, supported by affidavit, asking that property claimed to be exempt be discharged from the landlord’s attachment that had been levied. The motion was overruled, and the ruling duly excepted to. To sustain the ruling, the appellee urges: First, that the notice of appeal does not give us jurisdiction to review this order; second, that the motion and affidavit were not sufficient proof to warrant sustaining the motion.

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, *261at 96. On that reasoning, we held, in Lesure Lbr. Co. v. Mutual Fire Ins. Co., 101 Iowa 514, at 516, that an interlocutory judgment on a plea of abatement, which did not affect the defense as far as same went to the merits, was not brought up by a notice of appeal “from the judgment in the above-entitled case,” which notice was served more than six months after the interlocutory judgment was rendered. In a way, we grounded the dismissal in Weiser v. Day Bros., 77 Iowa 25, at 26, upon the indefiniteness, of the notice. There, the appeal was taken from “the decision” at a certain term, and we held that this could not be held to be an appeal from the final judgment, because the language of the notice does not so declare, nor bear an interpretation to that effect, and because, since, while there may be but one final judgment, there may be many decisions, it may not • be said that all decisions have been appealed from. Wherefore, the notice should have indicated what decision was appealed from. This, too, is of little value here. Augustine v. McDowell, 120 Iowa 401, at 405, and Dolan v. Midland B. F. Co., 126 Iowa 254, at 260, are more helpful, and yet scarcely decisive. In the first, the notice- advised “that intervener in the above cause has appealed to the Su- ■ preme Court of the state of Iowa.” We found that there were practically two judgments, one for possession of corn,. and the other a dismissal of the petition of intervention, and held that this notice was specific enough to bring up both actions of the trial court. In the last, the abstract recited :

“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*262tain the appeal against the objection, among others, that could not be determined from what order or judgment an appeal had been taken. And we have held that the notice j need not be set out in full. But what we have cannot be decided without a consideration of Section 4139, Code Supplement, 1913. That, provides that a jurisdictional defect must be raised by specific, written objections. Here, none such were filed. Under the construction given this statute in Sawyer v. Iowa Cons. Pro. Amend. Association, 177 Iowa 218, in the absence of such objections as the statute requires, it is no longer material that the abstract show affirmatively that we have a specified controversy for review. The mere paucity of the recitals in the abstract are no’ longer of consequence. A notice of appeal having been duly served, we indulge the presumption, in the absence of such objections, that the record presents nothing but that which we have power to review. It is for the appellee to show affirmatively, and by amendment, that we may not review all or part of what the abstract presents. Some language is used in Yockey v. Woodbury County, 130 Iowa 412, that gives some color to this claim on part of appellee. But what this case decides is that, where the main judgment in an action is distinct from a judgment for costs, then, if the notice of appeal is from the main decree simply, this excludes a consideration of the judgment for costs. The appeal was “from the judgment of said district court entered on the 10th day of April, 1905, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in favor of said plaintiff appellant,, sustaining .his objection to the assessment .of a certain tax . against his land.” It is merely a case where that which is distinctly enumerated is held to exclude that which is not enumerated. We are of opinion that we must entertain the complaint lodged against the overruling of the motion.

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8. Attachment: dissolution : motion: suffi- . cieney of i showing. But it is urged that, though we do this, the ruling below is justified on the merits. The statute that governs is:

“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.

Gaynor, O. J., Laud and Evans, JJ., concur.