114 Neb. 88 | Neb. | 1925
The plaintiffs Hanneman are brothers, residing at Mag
It may here be observed that this action involves a consideration of two land, sale contracts between the parties. The first contract is dated October 21, 1919, and has to do-with land designated in the record as the “Frost tract,” consisting of approximately, 2,880 acres, for which the purchase price was $35 an acre, or a little over $100,000 in all. On this contract plaintiffs paid $5,800 on the date of purchase. The second sale contract, dated December 20, 1919, has to do with another tract of land, consisting of about the-same number of acres and at about the same price. The first tract having been subsequently exchanged for the second tract, the above payment of $5,800 was applied thereon, as a part payment. The contract in suit also obligated plaintiffs to deliver to defendants a certain stock of implements, hardware, automobiles and accessories, then at Magnolia, Iowa, or so much thereof as was necessary to-pay out the unpaid remainder of the purchase price. This stock of merchandise was owned by plaintiffs and was valued at approximately $28,000 or $30,000, at wholesale prices.
Before the contract for the Frost tract was closed, plaintiffs made a thorough examination of the land and found a body of “about 1,100 acres of wheat” coming up at the time, and they noted that the farm equipment, of the then supposed former owner, consisted of “four or five tractors, a plow for each tractor, a couple of discs, a couple of drills, a tank wagon” and other implements, all of which tended to show that it was a fertile and producing farm.
About two months after plaintiffs bought the Frost tract, or believed they had bought it, they were called up by telephone at their Iowa home from Missouri Valley, by one of defendants’ agents, and informed that, owing to the then recent death of the late owner of the land which they had bought, the title théreto was in such condition that it would take at least a year, by appropriate court proceedings, to make the title merchantable. Plaintiffs then, by appointment; went to Omaha, taking Mr. Stirtz, a brother-in-law,
At first plaintiffs expressed an entire unwillingness to consent to an exchange of land for other land which they had never seen, and for a time they refused to even consider the proposition unless they were given time and opportunity for examination. But in this resolve, as disclosed by competent evidence, plaintiffs were overborne by the representations made by defendants and their agents, in respect of the value of the proposed tract and the like, and, in apparently implicit reliance on the representations so made, an exchange contract, or rather a new contract, for the purchase of the proposed tract was there entered into. It may here be noted that it afterward transpired that defendants never owned the Frost tract and the transaction proved to be only a pretended sale, though one of the vendors testified that they had a verbal agreement with the owner authorizing a sale.
In respect of the false and fraudulent representations, which induced the sale of the second tract, there is competent evidence, on this vitally material feature, tending to prove that defendants, by themselves and their agents, falsely represented to plaintiffs that a very large proportion of ¡the 2,880-acre tract under consideration, namely, the second tract, was as smooth as a floor; that the soil was fertile; that it was free from sand and gravel; that it would produce 25 bushels of wheat to the acre and upward, and other crops in like proportion, and that some of it was sub-irrigated land which, for growing alfalfa, was easily worth $250 an acre. Defendants further informed plaintiffs that
Plaintiffs consulted Stirtz, and he advised them to make the exchange and to forego a personal examination. He, being a man of mature years, assured them, in substance, that he, Stirtz, had become informed in respect of Olson’s •standing, and that he was a reliable man, who could be depended on, and would scorn to make false representations in order to effect a sale or a trade. Naturally, plaintiffs listened to their brother-in-law, in whom they placed implicit confidence, and, in view of defendants’ fraudulent representations and assurances, on which they relied, they yielded and the purchase was made. But it transpired that Olson had paid Stirtz $500 for his influence in getting plaintiffs to make the purchase without going to Colorado to •examine the land. This was, of course, undiscovered by plaintiffs until some time after the sale was effected. And it may here be noted that proof was offered which tended to show that one of defendants’ regular agents received almost $3,000 for his assistance in closing the deal, and that another wasi promised a like amount, or perhaps more; but it appears that he, for some reason, realized nothing for his efforts.
Plaintiffs, as noted, in reliance on the false and fraudulent representations of defendants and their agents, and in utter ignorance of the real facts, of which they were the victims, and in ignorance of the fact that their brother-in-law had been' basely seduced by defendants, proceeded to invoice their farm implements, their hardware, their automobiles and accessories, which, as above noted, approximát
The truth in respect of the transaction was not discovered by plaintiffs until they went to Colorado the following spring and tried to farm the land in suit, but they found that the soil was sandy and so streaked with gravel that it could not be farmed, and was altogether an! unproductive tract and was fit for grazing purposes only. They and other witnesses, produced by them, testified that the value of the smooth land which was sold to them was about $10 an acre, and the rough land, of which there was considerable, was worth about $7.50 an acre. Other evidence was introduced which tended to prove that the land was worth about $16 an acre. But the question of value, and of the credibility of the witnesses as well, was for the jury.
In respect of defendant, D. R. Jones Land Company, the contention is that no liability attaches on the ground that Swanson, who was Jones’ partner, exceeded his authority as a member of the firm. In view of the evidence, the argument does not appeal to us. In passing, it may be observed that the offices of defendant “Land & Cattle Company” and of defendant “D. R. Jones Land Company” are closely located in the same building, and certain features of the transaction were talked over in both offices between plaintiffs and defendants’ agents. But this is only an incident. Jones, however, testified that the “D. R. Jones Land Company” was a partnership, consisting of himself, and his partner Swanson, and was located at Cheyenne Wells, Colorado. A large folder, or poster, is in evidence which is a direct and persuasive invitation to purchasers
Plaintiffs began a former action in Douglas county to recover damages. Defendants endeavored to bring about a settlement of the action, which in effect amounted to a dismissal, but plaintiffs refused to consider a dismissal until their money was returned to them. Subsequently, however, they did sign an instrument which, in terms, indicated that there was no suit pending, and this, solely on defendants’ assurance that it would help them in their efforts to sell the land. Defendants’ contention now is that this instrument constitutes an absolute dismissal by which plaintiffs are bound. But plaintiffs testified that they signed the proposed settlement agreement, or dismissal, above referred to, with an agreement on the part of defendants that it would be used solely to show to prospective buyers, and that it should not become effective until defendants returned their money which was wrongfully obtained, and this, for the very obvious reason that no person would consider a purchase of land which was involved in present litigation. On the cross-examination, in respect of the above-mentioned proposed agreement for settlement and dismissal, Swanson testified that he told plaintiffs, or one of them, that he was going to see defendants’ attorney and have him “draw up an agreement along the line we had discussed, provided it met with his approval,” and that plaintiffs “were to sign what we had agreed upon.” Swanson further testified in respect of the instrument of dismissal that the Hannemans were “to be the j udge whether it was what you had agreed upon.”
It is well settled, in this and other jurisdictions, that such an agreement is enforceáble. In Gund v. Roulier, 108
Ware v. Allen, 128 U. S. 590, is in point. The court there said:
“Parol evidence is admissible, in an action between the parties, to show that a written instrument, executed and delivered by the party obligor to the party obligee, absolute on its face, was conditional and was not intended to take effect until another event should take place.” And it was further held that the contract, there in suit, never went into effect because the condition upon which it was to become operative never occurred, and that the case therefore came under the well-recognized rule, as stated, “By which an instrument, whether delivered to a third person as an escrow, or to the obligee in it, is made to depend, as to its going into operation, upon events to occur or to be ascertained thereafter.” To substantially the same effect is Golden v. Meier, 129 Wis. 14.
Defendants excepted to certain instructions tendered by them, and refused by the court, and also in respect of certain instructions given by the court of its own motion. Upon examination we find that reversible error cannot be predicated upon these assignments of alleged error. The jury
Reversible error has not been pointed out. The judgment, is therefore
Affirmed.
Note — See Evidence, 10 R, C. L. 1055 — 22 C. J. secs. 1459,. 1540, 1617.