47 Neb. 346 | Neb. | 1896
In January, 1888, a contract was entered into between Moore and Scott, whereby Scott assigned to Moore his rights under a contract for the purchase of 1,600 acres of land in Lincoln county. The consideration for this transaction was a conveyance by Moore to Scott of a lot in the city of Kearney, the transfer of a note for $300 made by F. H. Gilcrest & Co., a note of Moore’s to Scott for $50, $5 in cash, and a box of cigars. This action was brought by Moore to rescind the contract. The Kearney Savings Bank and F. H.
The ground upon which rescission was sought by Moore was false representations in regard to the character of the land, -alleged to have been made by Scott. These were, in brief, that the land was nearly all good tillable land, a little rolling, but with valleys in it, and covered with a good growth of grass; that there was not enough sand upon it to prevent its being good farming land-; that water could be obtained at a depth of fifty or sixty feet, and that the land was actually worth $4.50 an acre. It may be assumed as established that the land was not in these respects as plaintiff claims it was represented. Scott, however, denies that he made such representations, but avers the fact to be that he informed the plaintiff that he had never seen the land and had no personal knowledge of its character, quality, or value, and would not be responsible for its character or quality upon that account. This was the controlling issue
It is true, as contended by plaintiff, that this court has repudiated the doctrine that in order to make out a case of deceit, it must be shown that the defendant knew his representations to be false. The scienter is not material. (Foley v. Holtry, 43 Neb., 133; Phillips v. Jones, 12 Neb., 213; Hoock v. Bowman, 42 Neb., 80; Johnson v. Gulick, 46 Neb., 817.) But in all of these cases it is either expressly stated or necessarily implied that in order to be actionable the representations must have been made as a positive statement of existing facts. Now in this case, assuming, as we must, that the defendant’s account of the transaction is correct, the fact represented was that persons whom the defendant deemed reliable so represented the land to him. The defendant did not represent these matters in regard to the character of the land as facts within his knowledge, but he
At some time during the trial the plaintiff asked leave to amend his petition by asking rescission on the ground of mistake. Leave to so amend was refused. The amendment tendered alleged the same representations as the original petition and averred that the contract was entered into.because both parties by mistake believed the facts to be as represented. We do not think that a ground for relief from mistake was shown, and, • therefore, there was' no error in refusing the amendment. As we understand the law, the jurisdiction of equity to relieve against mutual mistakes does not extend to all cases where the parties to a contract at the time it was made were in ignorance of, or misapprehended some matter incidental to the subject of the contract. If that . were so, and A sold his farm to B, he might rescind on its being subsequently discovered that there was a valuable vein of coal or other mineral underlying the land. As we understand it, the
There are other assignments of error, but they
Judgment affirmed.