143 Iowa 338 | Iowa | 1909
I. There was evidence tending to
On the 15th of . December, 1905, the plaintiffs, who were partners engaged in the business of selling real estate on commission, took Conrad and his wife from Waukon, to what is called the “Sandry place,” about fifteen miles distant, with - a view of effecting a sale thereof to said Conrad, who had already indicated to them his intention of buying the place if it suited his wife. Mrs. Conrad was not satisfied with the Sandry place, and, instead of going to Lansing, a few miles distant, for the purpose of returning home by rail, they went 'back with plaintiffs to Waukon, and remained over night. There is a controversy in the evidence as to what the purpose of the Conrads was in thus returning to Waukon, but as this purpose, so far as it was known to plaintiffs, was involved in the determination of the question whether any fraud was perpetrated by plaintiffs on defendant in the subsequent transaction with him, and as the court refused to submit any. question of fraud to the jury, we must give the version of the facts found in the evidence of Conrad which was most favorable to defendant, although it was contradicted in some respects by that of the plaintiffs. Conrad testified that, while they were at the Sandry place, he and his wife
It is to be noticed that the Conrads had not formed any definite intention of buying the defendant’s place when they went out to look at it with Larson. They had communicated neither with the defendant nor with any one who represented him in reference thereto as agent or otherwise. They had simply acquired the information that there was such a place in the neighborhood of Waukon which they thought might suit them. Collins did not misrepresent any fact when he said to defendant that he thought he could bring a purchaser to buy his farm at the terms specified if he should be allowed a commission for doing so. Our conclusion that plaintiffs perpetrated no fraud on defendant in concealing their knowledge, that the Conrads desired to look at his place with a view of a possible purchase is supported by the authority of Donohue v. Padden, 93 Wis. 20 (66 N. W. 804), and Barringer v. Stoltz, 39 Minn. 63 (38 N. W. 808). The facts in these cases are analogous to those in the case before us, and the conclusions reached are in harmony with our conclusion in this case, as already indicated. We think the court did not err in refusing to submit any question •of fraud to the jury.
The witness was further asked whether or not he would have bought that farm if he had not talked with plaintiffs about it at all, and an objection to this question was sustained. We think the court might well have allowed the question to be answered. It does not appear in this immediate connection what answer the witness would have given. But from the tenor of the examination we think it is plainly apparent that defendant expected an answer to the effect that the witness would have bought the farm although he had not talked with plaintiffs about it, and that, if the objection to the question had not been sustained, such an answer would have been given. It is urged that the question calls only for a conclusion, and in a' sense this is true, but the issue involved the determination of the jury as' to whether the acts of plaintiffs brought about the sale or had a material influence in bringing it about, and we. hardly see how the jury could, have passed on that question without taking into account the motives and purposes of the witness and the causes which influenced his ■ action. • '
Other alleged errors are argued, but, in view of the conclusions already indicated, we think it not necessary to consider them. If the case is retried on the theory indicated in this opinion, the rulings complained of, if erroneous, are not likely to be repeated.
Eor the error pointed out in the fifth division of this opinion, the judgment is reversed.
Weaver, J. — I concur in the result reached by the majority, hut am thoroughly convinced that the evidence is sufficient to sustain a finding of fraud as charged in the petition.