32 Ind. App. 550 | Ind. Ct. App. | 1904
Action by appellant for damages growing out of a breach of warranty in the deed of conveyance of certain real estate purchased by him of appellee. The complaint was in two paragraphs. The first paragraph of complaint contains averments covering the execution and delivery of the deed, the payment of the purchase price, the -warranty covering thirty-five and seventy-hundredths acres of land, the failure of the title to six and seventy-hundredths acres of the land so conveyed and warranted, and the eviction of appellant therefrom by one holding the paramount title. The second paragraph of complaint, in addition to the averments which appear in the first paragraph, contains the following: That at the time of the purchase of the real estate appellee orally represented that a certain rail fence running south from the Maple Grove gravel road, near the buildings on the land conveyed, was the line fence, and formed the western boundary of said land; that such representations were false and fraudulent, and were falsely and fraudulently made, and that appellant relied upon and believed them to be true; that thereafter, and after appellant had purchased the real estate so pointed put to him, a survey was had of said land, and said.line
The questions presented to this court all arise under the assignment of error that the trial court erred in overruling appellant’s motion for a new trial. The action of the trial court in regard to the giving of certain instructions, and in the refusal to give certain other instructions to the jury, and in the refusal to permit the introduction of certain evidence, is assigned as cause for a new trial.
If we concede that the law as'stated in this instruction is correct, it would only 'be correct as applied to the first paragraph of complaint; and while the second paragraph of the complaint was not based upon the contract as evidenced by the deed, but was based upon the fraud of the vendor in misrepresenting the number of acres in the tract conveyed, the reference in the- instruction to the deed of conveyance would not, we think, have the effect of directing the attention of the jury to the fact that the law as stated in the instruction was applicable alone to the case made by the first paragraph of complaint. The instruction took from the jury the evidence introduced upon the question of fraudulent representation of the amount .of fend conveyed, and, in effect, told the jury that if certain facts wore proved, which were only provable under the allegations of the first paragraph of complaint, that their verdict must be for the defendants. It is the settled few in this State that, if by the fraudulent representations of the vendor as to the extent of, or the number of acres in, the tract of
The second paragraph of complaint squarely presented an issue based upon fraudulent representation of the number of acres of land conveyed. Appellant produced evidence in support of this, issue, and the court ought to have confined the effect of the instructions above set out to the case made by the first paragraph of complaint.
Other alleged errors are discussed by counsel, which we do not deem it necessary to consider.
For the error in giving instruction number eleven the judgment is reversed, and the trial court is directed to grant appellant’s motion for a new trial.