Mather v. Robinson

47 Iowa 403 | Iowa | 1877

Adams, J.

This action was not brought to recover damages for fraud in the sale. The plaintiff had paid less than the property was worth, according to his admission in the petition, and the notes given for the balance were still in the defendant’s .possession. Nor is the action brought to procure a cancellation of the notes. It is an action at law for damages alleged to have been sustained by the wrongful taking of the property. But the property was taken under the mortgage, and that provides that it might be taken whenever the mortgagee should elect. Whether the plaintiff was prudent in giving such a mortgage it is not for ns to judge; it was for the plaintiff to judge. It is to be supposed that he knew the desirableness of the trade; that he knew whether the defendant would accept a less stringent mortgage, and what his own resources were, and ability to protect himself by payment if the property should be seized under the mortgage upon the mortgagee’s election. We see nothing illegal in the mortgage. Indeed, so far is the provision in question from being obnoxious to the law, it is provided by statute that the mortgagee of personal property shall be entitled to the possession, unless it is stipulated otherwise. The question, then, is as to whether there were any facts extrinsic to the mortgage that rendered it invalid. The plaintiff seeks to treat it as a nullity. The reason given is that the plaintiff was defrauded in the purchase in pursuance of which the mortgage was given. There had, however, been no offer to rescind, and without rescinding something was due to defendant. Whether the mortgage, could be treated as a nullity by plaintiff, while he really owed some part of the debt which it was given to secure, is a question which has not been argued by counsel, and is not necessary now to be determined.

Conceding, for the purposes of the opinion, that if there was fraud by defendant in the sale to plaintiff' it rendered the mortgage void, we proceed to consider whether the judgment can be sustained, even upon that theory.

i. evidence: representations: vendor and vendee, I. The plaintiff introduced as a witness one Womly, and asked him a question in these words: “Did you, about the time Mr. Mather purchased, hear Mr. Robinson state what the daily receipts of the house were . - , , , 1 , , , > exclusive ox that received irom boarders and the lunch room?” To this question counsel for the defendant objected as immaterial and incompetent unless Mather was present. The objection was overruled and the defendant excepted. The witness answered: “Defendant wanted me to buy the business. I told him it was not worth buying. lie then took me in the dining room and showed me the receipts to satisfy me that it was. When he showed me the receipts in a book (which is the same book now in court) I told him I couldn’t nor wouldn’t believe that there was any such receipts.”

We think'the court erred in allowing the question to be answered. It cannot be proven that fraudulent representations are made to one person because the same or other false representations were made to another.

_._. -• II. The defendant offered to introduce in evidence the books kept by him during the time he was in business, and the only books that he kept, and the books that were exhibited to the plaintiff during the negotiations, to show the receipts of the business. The plaintiff objected, and the objection was sustained. The plaintiff alleges in his petition that false entiles had been made in the books by defendant, with intent to cheat the plaintiff. The evidence, however, wholly fails to support the allegation. The plaintiff, in his testimony, said: “Defendant went through the house with me. I looked at the table and crockery, and different things he had in the house, and he showed me the bed-rooms up stairs. I took just a general observation. I then told him I saw nothing worth what he represented, and he told me he considered it worth that. He then took out a book and read to me the daily receipts of this house, stating them to be from $35 to $125 per day, extending over a period of several months back.” The defendant, in his testimony, says: “Mr. Mather inquired about the receipts, and here are the books that I exhibited to him. These are the only ones that I ever kept there, and he examined them both. I don’t think I gave him any amounts. I explained to him why some days showed so much more than others; they would show up $25 to $80 per day; sometimes on Sunday as low as $15, and then sometimes run up to $100, and perhaps $200, for one day. I explained to him that sometimes my boarders would run along for some time and then pay up. I referred to one man that paid me $50 on one day, and the railroad boys paid once a month.” The plaintiff testified that after lie took possession the receipts from transient custom were from $15 to $30 per day. The defendant says that with him they sometimes ran as low as $15 per day, and he claims that the very books which the plaintiff examined showed it. There is one point of difference between plaintiff and defendant. The plaintiff says that he did not examine the books, and that the statement of defendant as'to the amounts shown did not include what was received from boarders. The defendant says the plaintiff did examine the books, and that ho explained to him that the large amounts were from payments made by boarders. If the books appear upon their face to have been fairly and properly kept, and were examined by plaintiff’ as the defendant says, and show what he claims, they would tend to rebut the plaintiff’s testimony, and corroborate the defendant. In excluding the books we think that the court below erred.

Reversed. .