80 Ind. 164 | Ind. | 1881
— The complaint, which consists of two paragraphs, states, in substance, that on the 9th day of February, 1878, the appellee bartered and traded to the appellant the undivided one-half of one acre of land for a patent right to make, use and sell certain improvements in fence posts in the counties of Benton, Newton, Jasper and Pulaski, in the State of Indiana. That the appellant, by himself and agents, to induce the appellee to make said trade, and with intent to de
To this complaint the appellant filed a general denial. The cause was tried three times, the last resulting in a verdict for the appellee. The appellant moved for a new trial. The motion was overruled, and judgment rendered upon the verdict for the appellee.
The appellant assigns the following errors: .
1. The complaint does not state facts sufficient to constitute a cause of action.
2. The court erred in overruling the motion for a new trial.
1 The objection urged to the complaint is that the alleged representations were not material, nor such as a reasonable man ought to rely upon; that some of them were the mere expression of opinion as to value, and the others related to what the iron points would cost the appellee.
We think the statements alleged to have been made as to the contract with McGrath, to furnish the points and bolts to the appellant, or to those to whom he should sell, at one and one-fourth cents per pound, related to an existing fact, material to be known, and calculated to influence those about to purchase the right. It is too obvious to justify discussion, that the cost of the points and bolts was a matter proper to be considered by the appellee in making the purchase. It is equally clear that the appellant was in a position to know the
The appellant offered to prove by one LaFountain, a competent Avitness, that the appellee had sent him a letter with two notes, which he had given him for the patent right to Benton county, in which letter the appellee stated that the reason why he had not furnished the witness with points, as agreed, was because the foundry at Indianapolis, where they were to be made, had become embarrassed and could not go on with the work, and that the witness would have to wait until neAv arrangements could be made. The witness had testified that the notes had been burnt, and that the letter was in his coat, which had been stolen • that he had not been able to recover his coat or the letter.
The exclusion by the court, upon the objection of the appellee, of the testimony thus offered, is one of the causes urged for a neAv trial. The testimony as to the representations made in relation to the cost of the iron points was very conflicting. The fact that the appellee had contracted for the manufacture of the points at Indianapolis, and the failure of the manufacturing company there to furnish the points as agreed being the only reason given for not fulfilling his contract with the witness, were circumstances proper for the jury to consider in weighing the testimony as to the representations alleged to have been made by the appellant, and especially as to the ground upon which the appellee abandoned or rescinded the contracts for the sale of the right. The appellee had testified that he was compelled to rescind the contracts he had made for the sale-of the seAreral counties, because the irón points could not be furnished at Lafayette at one and one-fourth cents per pound as represented by the appellant. We think the testi
Per Curiam. — It is ordered, upon the foregoing opinion, that the judgment below be reversed, at the costs of the appellee.