14 Utah 408 | Utah | 1897
On August 1, 1893, at Denver, Colo., appellant and respondent exchanged real estate by written contract, which was afterwards executed by interchange of deeds of conveyance. By the terms of the written contract, appellant agreed to exchange 3,250 acres of land in Colorado, at a stipulated price of $30 per acre, and some personal property, for four pieces of property belonging to respondent in Ogden, Utah. The price of the Ogden property was not fixed in the contract, but was fixed in the deeds of conveyance. Plaintiff alleged in his complaint that the price of each piece of Ogden property was fixed and represented by the defendant at the following-stated sums in the negotiations which culminated in the written contract: One piece of the Ogden property consisted of residence property on the corner of Washington avenue and Twenty-first street, valued at $10,000, and represented by the defendant to be renting at $240 per year. The second piece was business property on the corner of Twenty-third street and Washington avenue, of the value of $60,000, and was represented by the defendant to be producing a rental of $4,000 a year. The third piece consisted of a vacant lot on Twenty-Eighth street and Washington avenue valued at $16,000. The fourth piece consisted of a number of lots and a piece of unplat-ted ground in South Ogden, known as “Central Park Annex to the City of Ogden,” valued at $33,000, and represented by the defendant to be sufficient to cut into 100 full-sized building lots, and situated southeast of the Pingree Avenue school-house, and that they were high, dry, and smooth, were full lots, accessible to the streets,
This action was brought to recover damages for fraud and deceit, and the measure of damages relied upon was the difference between the actual value of the several pieces of Ogden property as it was and what it would have been worth had the representations been true. After the plaintiffs attorney had made his opening statement to the jury, and before the trial proceeded, the attorney for the defendant made the following opening statement to the jury: “That we right here and now offer to deed that ranch to Mr. Hecht for the sum of $15,000, when he is asking for a judgment of $85,000, and keeps the Ogden real estate. We right here say now to the gentleman that claims he has been damaged in the sum of
The price of the Colorado land was fixed and expressed in the contract of sale at $30 per acre, besides the personal property. The price of the Ogden property was not fixed in the contract of sale, but the consideration, as alleged, was stated in the deeds. The answer does not allege any deceit or fraudulent representations on the part of the appellant with reference to the Colorado property. The trial took place about 21 months after the contract was made, — at a time when values may have greatly depreciated. With reference to damages, the case must be tried just as it would have been tried the day after the contract was made, if the question had arisen at that time. The deed tendered was signed by Mr. Stowre, with no assurance of title, and when there
In Stanhope v. Swafford, (Iowa) 45 N. W. 403, the court held that, “ in an action for false representations in an exchange of land, allegations in the answer as to the value of the land traded by plaintiff were properly stricken out when its value was fixed by the written contract between the parties, and that an action for false representations inducing plaintiff to enter into the land trade is distinct from an action on the contract of exchange, and may be maintained, although such representations do not appear in the written contract.” In Matlock v. Reppy, (Ark.) 14 S. W. 546, it is held in a similar case that in an action for false representations as to land, evidence as to the value of the land exchanged by the plaintiff is immaterial when the value was agreed to. In Drew v. Beall, 62 Ill. 164, in an action brought for fraud and deceit in the exchange of land, the defendant offered to prove the value of the house and lot he received from the plaintiff in exchange, as affecting the question of damages, which the court refused to allow.
On the trial the appellant introduced testimony tending to establish the allegations in his complaint, and, among other things, evidence tending to prove that respondent fraudulently represented that the Twenty-Third street property was producing $4,000 rental per year, and was worth $75,000, when in fact it was renting for about $90 per month, and. was not worth more than $17,000; that the Twenty-First street property was represented to be of the value of $16,000, and renting for $240 per year, whereas the value did not exceed $5,000, and it was renting for not over $90 per year; and that the lots in question were not located as represented, did not contain the land as represented, and were partly located in a swamp; that appellant relied upon the representations made as true, and believed them to be true, and made the exchange in reliance thereon; that, had the representations been true, the land in question would have been worth the amount paid for it, but, as it was, the land was not worth over one-third to one-fifth the price paid; that in consideration for this property he gave the respondent the contract and deed of the Colorado land, valued in the contract and deed at $30 per acre, besides a lot of personal property. At the close of the plaintiff’s case, the court, on motion of the defendant, struck out all of the testimony of the plaintiff with reference to the false representations and rental of the Twenty-Third and Twenty-First street properties, and confined the proof
The court, in its instruction to the jury, limited the appellant’s right of recovery to what he paid, and, notwithstanding the testimony was clear that he gave 2,250 acres of land, valued at $30 per acre, the court held that there was no evidence as to what he did pay, and that he was only entitled to recover what he paid. We are of the opinion that the measure of damages as laid down by the court was erroneous. Sedgwick, in his excellent
We are of the opinion that the court erred in striking out plaintiff’s testimony with reference to the fraudulent