235 F. 497 | 8th Cir. | 1916
This action was brought in the District Court by Pearce, the defendant in error, against Nupen, Lane, and Wiley, to recover damages for alleged deceit and misrepresentation
Some undisputed facts are these: In October, 1909, defendant Wiley was the owner of the E. % of section 15, township 138 N., range 73 W. of the fifth principal meridian, in Kidder county, N. D. Desiring to dispose of it, he employed the defendant Nupen, who was a real estate agent and doing business at Steele, not far from the land in question, authorizing him to sell it at $9 per acre net to him (Wiley). Afterwards Nupen entered into correspondence with defendant Lane, who resided at Fllendale, a distance of about 100 miles from Steele, who had property he desired to trade for land in Kidder county. Negotiations followed, resulting in an agreement, dated February 21, 1910, between Lane, whom Nupen had interested in the matter, and Pearce, the plaintiff, by the provisions of which Lane assumed and agreed to sell the land to Pearce at $22,50 per acre, and to accept in payment therefor a certain residence property situated in Letcher, S. D., valued at $4,000, subject to a mortgage, however, securing a debt of $1,500; the balance in notes of Pearce, secured by mortgage on the property in question. This agreement was made subject to the approval of the properties after inspection by the parties. On the following day (February 22d) Pearce and Lane, pursuant to an arrangement made by Nupen, met the latter at Steele, and the three went together to view the land in question. Defendant Wiley was not present at this inspection. ‘ On returning to Steele, plaintiff advised Nupen and Lane that he was willing to consummate the trade. Afterwards, and on March 3d, Wiley and his wife executed a general warranty deed qf the tract in question to Nupen, and Nupen and his wife on the next day (March 4, 1910) executed a general warranty deed of the same tract to the plaintiff, Pearce. On March 2, 1910, Pearce and his wife executed a warranty deed conveying lots 7, 8, and 9, of block. 11, in the town of Letcher, S. D., to one Clark, who had purchased the property from Lane. ' On March 12, 1910, Pearce executed two mortgages on the land in question, one to secure a note for $3,000, and the other a note for $1,920, each payable to Nupen. Nupen retained the one for $1,920, and assigned and delivered the other ($3,000) to Lane. Nupen paid Wiley $9 per acre, amounting to $2,880, and no more, for the land. The balance of the purchase money and property paid by Pearce for the land was divided between Nupen and Lane. So much for undisputed facts.
There was evidence tending to show that Nupen and Lane, on the occasion of the inspection of the land by Pearce, pointed out to him, who was ignorant as to its location, the W. ½ of the section, instead of the E. ½, as the property of Wiley which they were trying to sell Pearce (this W. ½ having the appearance of a fine flat tract of land), and represented to Pearce that there was no alkali, gumbo, or excessive sand on the land they offered to sell him, and that, with the ex
At its close each of the defendants moved the court to instruct the jury to find a verdict in their favor. These motions were denied, and the court charged the jury; but as no parts of the charge, except those presently to be referred to, have been brought here for our consideration, the jury were presumptively properly advised as to the general rules of law governing the case. The court included in its charge the following statements, which were duly excepted to:
(1) “As to the motion on behalf of the defendant Wiley (to instruct a verdict in his favor), I think it is true that there is little or no evidence there— certainly no evidence on which a verdict could rest—that Mr. Wiley himself made any misrepresentations in regard to this land, so that he cannot be held on the theory that he himself made any misrepresentations; and the question then arises whether there were two transactions here: First, a sale by Wiley to Nupen; and, second, a sale by Nupen to the plaintiff—or whether there was really and in fact only one transaction, with two or three steps to accomplish it. I am inclined to take the latter view, or at least I think it will be a question for the jury to say whether or not there was in fact two separate and distinct transactions. If they find that there were two separate and distinct transactions, a completed sale between Wiley and Nupen, which had nothing whatever to do with the other transaction between Nupen and Lane and the plaintiff, then the defendant Wiley would drop out of the case so far as damages were concerned. If, on the other hand, they find that Nupen was acting for Wiley, and that the deeds from Wiley to Nupen and from Nupen to the plaintiff were simply steps in one transaction, the deed running to Nupen for the purpose of convenience in carrying out the transaction, and enabling him to conveniently get his commission, then I think the defendant Wiley would be included with the other defendants. * * * Now, one of the first questions for you to determine in this case is: Was there but one transaction, or were there two or more transactions involved here? * * * ”
(2) “The measure of damages in this case is the difference between the actual value of what Pearce parted with and the actual value of what he received, and these values are to be ascertained by you as of the time of the transaction; that is, on or about March 4, 1910.”
The assignments of error challenge: (1) A large number of rulings of the trial court in the admission of evidence, offered by plaintiff, over defendants’ objection; (2) the ruling of the trial court upon the defendants’ motion for an instructed verdict at the close of the case; (3) the charge of the trial court to the jury, as already set forth, concerning Wiley’s liability; and (4) the charge of the trial court on the measure of damages.
Counsel for defendants have not seen fit to make any argument, either orally or in writing, on the several assignments of error relating to the admission of evidence, neither have they in any respect con
So far as the defendants Nupen and Lane are concerned, there can be no doubt about the sufficiency of the evidence to justify a submission of the case to the jury as to them. The only argument they make in their brief against it is that it appears affirmatively that Pearce did not rely upon any of their representations. We think this is not so. The evidence tends to establish such reliance, and it was for the jury to pass upon its sufficiency under proper instructions. This is all we need to say on that subject.
As to the motion for an instructed verdict by Wiley, this may be said: All that he appears to have done, according to the proofs in this case, w:as to place his land for sale in the hands of Nupen, a reputable real estate agent, whose business it was to find purchasers for land intrusted to him. Wiley fixed the sum of $9 per acre, net to him, as the price at which he would sell tire lánd. He does not appear to have had anything further to do with the matter until Nupen advised him that a sale had been made, when he made a deed to Nupen, as requested by him, and received the consideration of $9 per acre therefor, in strict accord with his original proposition to Nupen, and nothing more. And such seems to have been the impression of the trial court. He observed:
“I think it is true that there is little or no evidence there—certainly no evidence on which a verdict could rest—that Mr. Wiley himself made any misrepresentations in regard to this land.”
It is inconceivable, except for one thing, how a jury found a verdict against Wiley, and, judging from the observations of the trial judge, just quoted, it is apparent that he would not have submitted the case to the jury, so far as Wiley was concerned, except for the same thing.
Wiley filed a separate answer to the complaint of plaintiff. His answer contained an explicit and unequivocal denial of any misrepresentations made by him to Pearce, or any participation with the other defendants in any transactions leading up to the sale of the land to Pearce. In this way he obviously intended to stand on his own bottom, and defend himself in his own way. Lane, however, took a different course. He sought not only to protect himself, but injected statements in his answer which the court thought inculpated Wiley, and accordingly charged the jury as already set out.
The judgment against Nupen and Lane is affirmed, and that against Wiley is reversed, and the cause, as to him, is remanded to the District Court, with instructions to grant a new trial, when, unless the evidence is substantially different from that now presented, a verdict should be directed in his favor.