91 Neb. 469 | Neb. | 1912
The action in this case ivas brought in the district court
The defendants answered denying each and every allegation contained in the petition “except what may be hereinafter specifically admitted.” They further allege that prior to August 6, 1907, they entered into a contract to sell to the plaintiff the south 80 acres of the northeast quarter of section 3, township 2, range 16, in Richardson county at the agreed price of $90 an acre, the “entire consideration being $7,200;” that the intention Avas only to convey the said 80 acres “at the agreed price of $7,200, which has been fully paid;” that the intention was not to convey to the plaintiff the soutli half of said quarter section, Imt “80 acres of land;” that said northeast quarter consists of lot 3 containing 46.67 acres, lot 4 containing 46.04 acres, and that the south part of the northeast quarter contains a slight fraction more than 80 acres; that said two lots 3 and 4, being the north forties of said northeast quarter, liad previously been conveyed, as the plaintiff AArell knew, to August Bucholz (the deed to Bucholz describes them as lots 1 and 2); that the plaintiff well knew that he was only buying the remainder of the quarter which had not already been conveyed to Bucholz; that the line dividing the land conveyed to Bucholz from the land conveyed by the defendants to the plaintiff liad been established according to the government survey, the north half containing over 92 acres and the south half containing a little over 80 acres. There was no reply.
A trial was had upon the issues joined before Judge Pemberton and a jury. A verdict Avas found for the plain
It is stipulated that the south part of the quarter contains 80.29 acres. The evidence shows that the nortli forties, lots 3 and 4 (or 1 and 2 as the case may be), contain, respectively, 46.67 and 46.04 acres. It appears, therefore, that the alleged statement of the defendant Henry Shaw to the purchaser Kuhlman that the quarter was a “long quarter” was correct; but whether he informed the plaintiff of all that he knew concerning the amount of land contained in the south part of the quarter is something which invites further discussion later in the case.
It is contended by the appellants that the court erred in giving the third instruction upon its own motion as follows: “The court instructs you that, before the plaintiff can in any event recover a verdict against the defendants, he, the plaintiff, must prove by a preponderance of the evidence that the defendant Henry Shaw was the duly authorized agent of said Emma Shaw to make the sale of said premises to the plaintiff,- and that said Henry Shaw did in fact make such sale as the agent of the said Emma Shaw.” It is claimed by the defendants’ counsel in their brief that Mrs. Shaw swears positively that Henry Shaw was not her agent to make the sale of this land, and that when Kuhlman was at her house she asked $90 an acre for the land.' It is claimed that the husband must have been authorized by her in writing. The instruction in question seems quite favorable to Mrs. Shaw. It clearly puts the burden upon the plaintiff, and seems under the evidence to be wholly without prejudicial error to the defendants’ case. Mrs. Shaw cannot claim and receive the benefit of her husband’s persuasive and effective conversation without being liable for it. If the testimony of the witnesses for the plaintiff is true, Mrs. Shaw received, and is yet holding, the fruits of her husband’s skilled tongue. The claim of counsel for- the defendants assumes
The defendants claim that the court erred in refusing to give to the jury at their request instruction No. 4, as follows: “The jury are instructed that if before the plaintiff purchased the land in dispute he inquired as to how many acres were contained in the south half of the quarter section of land, and w.as informed by Bucholz that it contained 80 acres, or was informed when the conveyance was made in Whittaker’s office that this governmental description of the land contained only 80 acres, then, in either case, the plaintiff cannot recover.” It is contended by the defendants concerning this instruction that, at the time the deed was drawn in Whittaker’s office, it was there stated in the. presence of Kuhlman that he was buying 80 acres at $90 an acre; als.o, that Mrs. Slvaw was there present, and, if Kuhlman had bought 86 or 87 acres for $7,200, it was then- incumbent upon Kuhlman to inform Mrs. Shaw of this fact, and not to keep quiet and by his silence perpetrate a fraud upon her. As to what was said in Whittaker’s office there is a dispute and the witnesses do not agree, and this question was submitted to the jury along with the other issues in the case, and they found against the defendants. The sixth instruction given by the court upon its own motion seems to cover the exact question contained in the request of the defendants. By
The petition charges that the plaintiff suffered damages because of the false representations of the defendants. The evidence shows that Kuhlman went to Shaw’s house, and that Shaw and Kuhlman talked together about the purchase of the premises in the presence of Shaw’s wife. The wife, who is .one of the defendants, therefore knew that her husband was negotiating for the sale of the premises. When Kuhlman, the purchaser, and Shaw met down town after dinner and Shaw continued the negotiations, it is claimed that he then told Kuhlman that if he bought the land he (Kuhlman) would not be paying $90 an acre for it because the northeast quarter was a long quarter, and that if he (.Kuhlman) bought the south half he would get 86 or 87 acres. It is perhaps immaterial whether Shaw personally knew that his representations were untrue. Foley v. Holtry, 43 Neb. 133; Carter v. Glass, 44 Mich. 154; Shippen v. Bowen, 122 U. S. 575; Johnson v. Gulick, 46 Neb. 817. In Phillips v. Jones, 12 Neb. 213, it is said: “And if a party, without knowing whether his statements are true or not, makes an assertion as to any particular matter upon which the other party has relied, the party defrauded, in a proper case, will be entitled to relief”— citing Smith v. Richards, 13 Pet. (U. S.) *26, *38; Turnbull v. Gadsden, 2 Strob. Eq. (S. Car.) 14; McFerran v. Taylor, 3 Cranch (U. S.) 281. This court quotes with approval from the last-named case that “'he who sells
Shaw, the husband, had no business to make the representations unless he knew them to be true, and if he did make them without knowledge upon the subject, and his wife received the benefit of these representations, then she ought to give up the benefit received. In Williamson v. Allison, 2 East (Eng.) 446, it was held not necessary either to aver or prove the scienter. Lord Ellenborough, C. J., said: “But, here, if the whole averment respecting the defendant’s knowledge of the unfitness of the wine for exportation were struck out, the declaration would still be sufficient to entitle the plaintiff to recover upon the breach of the warranty proved. For if one man lull another into security as to the goodness of a commodity, by giving him a warranty of it, it is the same thing whether or not the seller knew it at the time to be unfit for sale.” And Le Blanc, J., said: “The insertion or omission of the fact of the defendant’s knowledge at the time, that the wine was unfit for sale, according to the warranty, makes no difference in the cause of action declared on, and therefore it may be struck out altogether.” The same rule as to averment and proof of scienter is laid down in the following cases: Beeman v. Buck, 3 Vt. 53; West v. Emery, 17 Vt. 583; Johnson & Grimes v. McDaniel, 15 Ark. 109; Hillman v. Wilcox, 30 Me. 170; Newell v. Horn, 45 N. H. 421; Ives v. Carter, 24 Conn. *392. The case of Ives v. Carter is instructive, while that of Newell v. Horn closely resembles the instant case..
It is claimed by counsel for the defendants that the wife sold the land herself, and she attempts to testify to that fact, but the evidence clearly shows that she knew that her husband was active in making the sale and that ho was negotiating with Kuhlman. The husband seems to have done a large share of the talking at the residence.
Quarter sections adjoining the north and west boundaries of townships may be fractional, and therefore may contain more or less land than is given to other quarter sections within the township, and are sold as surveyed according to their plats in the land offices. The northeast quarter of section 3 was such a quarter section, and the north half of it had been divided into lots, 46.04 acres in one and 46.67 acres in the other, making the north half of the northeast quarter contain 92.71 acres, according to the copy of the plat (defendants’ exhibit 1), and the south half containing, according to the same copy, 79.58 acres, although the parties stipulated that the south part of the quarter contains 80.29 acres.
It may be argued with force that “the south half of the northeast quarter” is equivalent to “all of the south half of the northeast quarter,” and that'one set of words conveys all the land that might be conveyed by the other. The latter phraseology is the language used in the deed. We think that “the south half of the northeast quarter of section 3” means all the south half of the quarter, and that the use of the additional words “all of” before “the south half of the northeast quarter of section 3” added nothing to the meaning of the words used, but we can understand that these words may have been used to in
We are unable to perceive any substantial error in the proceeding’s. The judgment of the district court is therefore
Affirmed.