110 Neb. 269 | Neb. | 1923
This is an action to recover damages on account of an ¡alleged fraud perpetrated by the defendants upon the plaintiff in a transaction concerning the exchange of certain real estate. There is a direct conflict in almost every essential and material.question of fact in'the evidence, but, the jury having accepted plaintiff’s theory of the case, the facts will be stated accordingly.
Plaintiff was a farmer residing at Burwell, Nebraska. He was more or less a buyer and seller of real estate, mostly carrying out his transactions through the aid of a real estate man in Omaha named Patzman. He had become vested with the title to 320 acres of land in Cedar county, Nebraska, which he had never seen. On his way to examine the land, he stopped at Wakefield, Nebraska, and was accosted by defendant Mallory, a real estáte
The evidence in the case is Amluminous. One of the chief points in controversy is Avhether Mallory Avas the
We are convinced from an examination of the testimony that there is evidence to warrant the finding that Mallory was Stageman’s agent, that Mallory was guilty of active, participation in the fraud, and that Stageman, having received and retained the fruits of the fraudulent actions and representations of Mallory after the same were brought to his knowledge, is a joint wrongdoer with him. A summons therefore might properly issue from Douglas county to 'be served upon him in Cedar county in the case.
The contract contains the following printed clause: “We each have inspected each other’s property and are dealing solely on our own judgment, and not upon any representations that had been made to us, and have carefully read this contract before signature.” It is insisted 'by defendants that plaintiff is estopped by reason of this recital from asserting that he has been defrauded. But the land that was shown to him, and as to which he spoke in this statement, was other land than that which was described in the contract, and, as the jury found, he was deceived and misled when he signed the paper containing this recital. Under such circumstances an estoppel cannot arise.
It is asserted that the court erred in instructing the jury with respect to the measure of damages. They were instructed that if they found for the “plaintiff he would be entitled to receive the difference between the reason
Exceptions were taken to the rulings of the court as to the admission or exclusion of certain evidence. Considering all the testimony introduced at different periods of the trial, we think defendant suffered no prejudice therefrom, except perhaps as to the testimony of plaintiff with respect to the values of the land in South Dakota.
It is contended that Stageman cannot be held to have ratified the act of Mallory if he in fact pointed out other and better land to plaintiff than that afterwards conveyed to him. The testimony shows that Stageman is no novice in the exchange and transfer of lands. He has . made no offer of rescission since acquiring knowledge of-the conduct of his agent, but has insisted on the contract being carried out. He retains the fruits of the transaction, and the fact that he willingly paid Mallory a commission of $1,000 for consummating the exchange is worthy of note.
It is complained that the verdict is so excessive that it must be the result of passion and prejudice. We think there, is some cause for this complaint. Excluding the testimony of plaintiff, who testified to the highest value placed upon the land 'by any witness, and for whose testimony an insufficient foundation was laid, four witnesses as to value testified on behalf of plaintiff. One of them valued the land in section 35, which was shown to plaintiff, as being worth $35 an acre, while that in sections 28 and 29 he valued at $3.50 an acre. Two
The jury found the difference in value between the two tracts to be $25 an acre, or $9,000 in all. Considering the testimony with respect to the value of dhe land, we are convinced that it does not. sustain a verdict for $9,000 as the difference in value. The jury having found in favor of plaintiff, he is entitled to recover his actual damages, but he is not entitled to a speculative, or excessive, award. Considering the mass of testimony and the cost of a new trial, we are reluctant to set aside the verdict in toto. The testimony as to value, all elements being considered, satisfies us that the verdict is excessive to the extent of $4,500. If plaintiff, therefore, is willing to remit the sum of $4,500 as of the date of judgment, the judgment, as thus reduced, will be affirmed, otherwise it will stand reversed.
The testimony in the case is peculiar, and would be unsatisfactory whether the jury found for plaintiff or for defendant. The zeal of plaintiff’s attorney led him in some instances rather close to the border line during his examination of witnesses, but if there is a second trial he will probably be a little more circumspect in his suggestions and implications to the jury.
The judgment is reversed unless plaintiff file a remit
Affirmed on condition.