Hibbets v. Threlkeld

137 Iowa 164 | Iowa | 1908

Deemer, J.

It is charged in the petition that defendants conspired and confederated together to cheat and defraud plaintiff out of his property, and pursuant thereto, falsely and fraudulently misrepresented certain Wisconsin land which they were proposing to exchange for plaintiff’s town lots; that sixty acres of the Wisconsin land was in cultivation, and the rest in good timber, and that it was all underlaid with a vein of coal. Other misrepresentations are charged, but need not now be set out. Defendants denied the alleged conspiracy, and separately denied the making of any false statements or representations. They also pleaded that plaintiff made false and fraudulent representations regarding his property. Upon these issues the case was tried resulting in a verdict for defendants, and plaintiff appeals.

1. Fraudulent representations: verdict upon conflicting evidence. It is strenuously argued that the verdict should have been for plaintiff, instead of defendants, on the theory that the testimony shows without conflict or without serious dis-pute that defendants made the representations claimed, that they were false and untrue, and , -, it t -r.* that plamtifl was damaged thereby. It is enough to say in this connection that there was a decided conflict in the testimony, and that much of the testimony upon which plaintiff relies is in the form of statements made after the trade was negotiated, which statements defendants explained in such a manner as that, if true, the jury might have given them no force or effect for the purpose of proving fraud.

2. Instructions: review. II. Appellants complain of the third instruction given to the jury. The instructions were not excepted to when given> ^ plaintiff made no complaint of the third instruction in his motion for a new trial. This leaves nothing for us to consider with reference to the third instruction.

3. Fraudulent representations: evidence: instruction. III. The complaint made of the eighth instruction is such as that a consideration of some of the rulings on evidence is necessary to a complete understanding of the matter. Testimony was adduced by defendants to show the value of the town lots given by plaintiff in exchange for the Wisconsin property. This was objected to, but the objection was overruled. In this there was no error. Likes v. Baer, 8 Iowa, 368, s. c. on rehearing, 10 Iowa, 89; High v. Kistner, 44 Iowa, 79. See, also, Aldrich v. Scribner, 146 Mich., 609 (109 N. W. 1121), and cases cited. In this connection, the trial court gave its eighth instruction, reading as follows: “ Evidence has been permitted to go to you as to the value of the lots of plaintiff which were exchanged for the Wisconsin land. This evidence was admitted only as a circumstance for the jury to consider as to whether or not it is probable that the plaintiff relied upon the alleged representations as to the Wisconsin land, or that he did not contract with reference to such representations, and such evidence should not be considered by you for any other purpose whatsoever.” This instruction is in exact accord with the authorities above cited, and nothing need be added to what is said in those cases.

4. Exclusion of evidence: prejudicial error. Eelating to this same matter, plaintiff offered in evidence certain letters written by defendant, Threlkeld, to plaintiff something like two years before the trade in qiiestion, in which certain statements were made ' by said defendant as to the value of his, plaintiff’s lots. These were offered expressly for the purpose of showing the friendship which existed between the parties at or about the time of the transactions involved in the suit. The trial court sustained an objection to the letters, and they were not received in evidence. They might well have been received for the purpose offered, but no prejudice resulted from their rejection, for the reason that the relations between the parties was fully shown by other testimony, and was not denied. Offered at a proper time, they might, perhaps, have also been received for impeaching purposes, and perhaps to show the value of the lots or rather defendant’s admissions as to value, but they were not so offered.

5. Evidence of value. IV. Certain deeds made by plaintiff for various of the town lots were offered in evidence, but the trial court admitted them simply to show that such deeds were executed; the statements as to consideration being ex-eluded. In this there was no error. The statement in a deed as to its consideration where the transaction is an exchange is not evidence either as to the amount paid or as to 'the value of the property. Deeds made by defendants shortly after they obtained title to the lots were also offered, and the objections thereto were sustained. It is now contended that they were admissible to show the value of the lots; but this is not so. They were made to strangers, and the statements therein as to the considerations paid were not admissible for any purpose. Again, it is said they were admissible for the purpose of showing that plaintiff could not rescind; but this was entirely immaterial.

6. Hearsay evidence. Plaintiff had one West look up the Wisconsin land, and offered to show what West reported to him. This was manifestly hearsay, and was properly excluded. He also offered to show what o~e Culbertson, who at West's request wrote to Wisconsin regarding the character of the Wisconsin `and, reported to West. Surely this evidence was not competent.

7. Evidence of value. In introducing his evidence in chief, plaintiff offered to show from whom he purchased his lots in this State, and what he paid for them. When this testimony was offered, it was incompetent for any purpose. When defendants introduced their testimony regarding the value of these lots for purposes heretofore disclosed, this testimony might have been proper as rebutting defendants' testimony regarding the value of the property, and, as some of it was purchased from one of the defendants as showing the value of the property, to impeach the defendants, and as showing plaintiff's knowledge or belief as to the value of his lots in this State which he was exchaiiging for defendants' land. This testimony was not again offered, and there was no error in the ruling of the trial court. Moreover, there was other testimony regarding the value of the lots, and as to what plaintiff paid for them. So that, in no event, was there any prejudice.

The two points most relied upon by plaintiff for a reversal are, first, that the verdict should have been the other way; and, second, that the court erred in permitting defendants to show the value of plaintiff's lots and in giving the eighth instruction. The rulings on this testimony and the instruction given have support in our previous cases, and the first Doint is without merit.

No prejudicial error appears, and. the judgment must be, and it is affirnwd.