91 Kan. 488 | Kan. | 1914
Mary E. McDanel brought this action to recover damages from John Whalen and his agent, Mathias A. Lohr, alleged to have resulted from misrepresentation and fraud of the latter in the exchange of properties. She owned city property in Salina, and Whalen owned land in Lane county, Kansas. An agreement of exchange was made and deeds of conveyance were executed and delivered, the deed from Whalen to McDanel conveying the northwest quarter of a certain section. She claims, however, that a different tract of much greater- value was pointed out to her as the land to be conveyed; that her husband, who was acting for her in the matter, was unacquainted with lands in that section of the state, or with the location and boundaries of the same, and that she was unaware that the land shown was not the land conveyed until some time after the transfer was made. It was further claimed that the land pointed out, which was a part of the northeast quarter of the section, was worth about $2500 more than the northwest quarter that was actually conveyed to her. A general verdict, as well as some special findings, were returned in favor of McDanel, the jury awarding her damages in the sum of $1000.
On this appeal it is contended that the court should have directed a verdict in favor of appellant, on the ground that appellee had received the northwest quarter, as she alleged, when she believed she was receiving the northeast quarter, whereas the testimony showed that she knew all the time that she was not to receive the northeast quarter. There is some confusion in the averments of the petition, but when all in the pleading are considered together it is apparent that no mistake could have been made as to the purpose of the pleader or the basis upon which a recovery was sought. In short, it was that appellant had defrauded
It is contended that the evidence does not support the verdict and, further, that appellee’s evidence is inconsistent with the averments of hér petition as well as with the findings of the jury. The appellant Lohr took C. S. McDanel, who represented appellee in the transaction, out to see the Lane county land, and instead of going directly to the northwest quarter he drove north on the east side of the northeast quarter, which was owned by one Hallam, passing about a half mile east of the northwest quarter and about a half mile north of that quarter. There he turned about and started in a southwesterly direction with a view of going upon and inspecting the northwest quarter. In doing so they passed through a rough section of land over hills and gullies until they came to a fence which Lohr said was the north line of the northwest quarter. He stated that he took this indirect course in order that Hallam would not learn that a trade of land adjoining his own was in contemplation. According to- the testimony of appellee, Lohr told McDanel that a certain fence, which he pointed out and which was on the west side of the Hallam land, was the west line of the northwest quarter and that a certain ridge pointed out at a distance east of them was the east line of the northwest quarter. As a matter • of fact, the land pointed out -was the western part of the Hallam land and was a much better quality of land than that in the northwest quarter. It was admitted by Lohr after-
It is next urged that error was committed in an instruction given to the jury in regard to the measure of damages. It was:
“Should your verdict be for the plaintiff, you are instructed that the measure of her damages would be the difference between the value of the said northwest quarter of said section 27, and the value of 160 acres of land of the character pointed out to McDanel by Lohr.”
No material error is found in the rulings, and the judgment of the district court will, therefore, be affirmed.