193 Iowa 458 | Iowa | 1922
— In February, 1920, appellee, then a resident of Estherville, Iowa, came to Boone, Iowa, with the intention of buying a farm, if he could find one that was satisfactory. He was accompanied by a real estate dealer named Kennedy. They were met by one Cooper, of Boone, also a real estate dealer, who showed them a farm; but appellee did not deal for it. While they were in Cooper’s office, another real estate agent, named Page,' came in. Cooper told Page what appellee wanted, and asked if he knew of any farm for sale that might meet the requirements. Page suggested a farm owned by appellant, and appellee, with Cooper and Kennedy, went to the farm to examine it. Then they returned to Cooper’s office, where.appellant, in response to a telephone message, met them. Appellant priced his farm at $50,000. They all went to the farm again, and again returned to Cooper’s office, and a contract was written and signed by the parties, by which appellant sold to appellee the farm, at the agreed price of $50,000, on the terms set forth in the contract. Afterwards, appellee paid appellant for the farm, in accordance with the terms of the contract, with the exception of $200 of the purchase price, which was to be withheld until some defect in the title was cured, and about which there is no controversy in this case.
This action is based on fraudulent representations as to the acreage of the farm. Plaintiff alleged, and offered evidence tending to prove, that defendant represented to him that the farm contained 100 acres, including the highways, and that the land inclosed within the fences contained between 94 and 95 acres; that said representations were false; and the other neees
Replying, plaintiff averred, with reference to the mortgage given by plaintiff to defendant on the premises, that he executed such mortgage in accordance with the terms of his contract; that the mortgage contained the same description as was contained in the deed received from the defendant; that in said description the distances were given in part only, by chains and links, and that plaintiff did not know, at said time, that the description of said land in said deed and mortgage covered less than 95 acres; that the description so given was insufficient to apprise the plaintiff of the acreage. Further replying, plaintiff averred that, even if he had known that the description in the mortgage and deed showed less than 95 acres, he at said time had no knowledge or information as to what part, if any, of the land included in said description was in the roads adjoining said premises; and that, at the time of the execution of said deed and mortgage, the defendant again expressly stated to plaintiff that there were more than 95 acres inside of the fences, and that the premises contained 100 acres, including the roads.
Under the issues thus joined, the case was submitted to a
Errors assigned relied upon for reversal are:
(1) The verdict was contrary to law and the instructions of the court, and is not supported by the evidence.
(2) The verdict is excessive.
(3) The undisputed testimony was that appellee was informed, before he completed the transaction, that there were less than 100 acres in the farm.
(4) The undisputed testimony was that appellee knew, or should have known, that the description contained in the deed he accepted showed less than 100 acres.
(5) The defense of estoppel was not defined or explained or submitted to the jury in the court’s instructions.
(6) The defense that the farm was purchased as an entirety was not submitted or explained to the jury in the court’s instructions.
The second assignment, “that the verdict was excessive,” we will discuss later.
No instructions were requested. No specific objections are made to the instructions given. Only the quite general criticism is made that defenses interposed by defendant were not properly explained and submitted to the jury, which criticism we have already discussed. However, we have examined the instructions, and conclude that the case was submitted with clearness and without error.
We have carefully examined the record, and find no other error. If appellee, within 15 days from the filing of this opinion, shall file a remittitur, reducing the verdict in accordance with our finding, the judgment of the trial court, as so modified, will stand affirmed. Otherwise, the judgment, of the court below will be reversed, and the case remanded. — Modified and affirmed.