19 Iowa 162 | Iowa | 1865
The first irregularity insisted upon is in allowing a counterclaim of damages for fraud and deceit, to be set up in a proceeding to foreclose a mortgage. The objection is not thought to be well taken. A foreclosure proceeding is equitable to be sure, in its nature, yet not exclusively or purely so. It is triable before a jury on oral testimony, and comes here to be reviewed upon errors assigned, and not to be tried upon its merits. Being a demand for money, we know no reason, under the liberal provisions of the Code, why a defendant may not interpose any set-off or counterclaim he may have a right to sue the plaintiff for.
The chief error relied upon, however, for reversing this case has relation to the rule laid down by the court as to the true measure of the defendant’s damages. This will better be understood perhaps by giving # x x J ° ° a brief summary of the evidence introduced to establish the defendant’s claim to damages on account of the fraud complained of. It seems that when the trade was made the parties were both in Indiana. The plaintiff
Now the court, among other things, charged the jury that the measure of damages (in case they found it necessary to assess the same) would be, in this case, the difference between the actual value of the land which the defendant got of the plaintiff, and such land as he (the plaintiff) represented he was selling to him. The plaintiff excepted, and claims that such was not the rule or measure of damages in this description of case, but that the amount of damages could not exceed the contract .price, less the value of the land. Without now stopping to re-discuss the question, as to the proper rule or measure of damages in cases of this kind, we shall affirm the ruling below on this subject, upon the authority of the following cases: Hahn v. Cummings, 3 Iowa, 583; Likes v. Baer, 8 Id., 368; Gates v. Reynolds, 13 Id., 1.
Affirmed.