6 Neb. 220 | Neb. | 1877
The plaintiff on the twenty-eighth day of February, 1873, sold to the defendant lot twenty in Perkins and Harford’s second addition to the town of Kearney Junction, for the sum of $300; $100 of which sum was paid at the time of entering into said contract for the sale of said lot; $100 with interest, was to be paid in one year from that date, and $100 with interest to be paid in two years from date. The defendant afterwards paid thereon the sum of $25. This is an action for the unpaid purchase money. The defendant answered : “ That immediately prior to the execution and delivery of the said contract the said plaintiffs, to induce the said defendant to purchase said lot, did then falsely and fraudulently, and with the intent to cheat and defraud the defendant, represent to him that said lot was of great value, to-wit, of the value of $300, by reason of being situate in the immediate vicinity, to-wit, within eighty feet of the south-east’corner of lots eleven, twelve, thirteen and fourteen, upon which lots the said plaintiffs falsely and fraudulently represented to defendant that they were about to erect a large brick hotel of the value of several thousand dollars. That plaintiffs, for the purpose of inducing the defendant to purchase said lot at a price far exceeding its true value, and for the purpose of cheating and defrauding defendant out qf the difference between the true value of said lot and the price mentioned in said contract, to-wit: out of the sum of $270, did then falsely and fraudulently state to the said defendant, well know
The cause was tried to a jury who found in favor of the defendant. A motion for a hew trial was overruled and judgment rendered on the verdict. The cause is brought into this court by petition in error.
It appears from the testimony that the defendant went upon and examined the lot in controversy before purchasing. The only question therefore to be. considered is the sufficiency of the answer.
Oan fraud be predicated on a promise not performed for the purpose of avoiding' a written instrument or a bargain of any hind ? I think not. To be available there must be a false assertion as to some existing matter by which the victim is induced to part with his money or property. If it is said that there was no intention on the part of the plaintiffs to perform on their part by the erection of the hotel, and that the defendant was induced to purchase the lot in question by the promise of the plaintiffs to erect a hotel, it may be answered that the defendant was content to take the plaintiff’s promise, and fraud cannot be based on a failure to perform the same. In morals the failure to perform such a promise may be without excuse or justification, but in law false* representations to authorize a rescission must be made in regard to existing facts. Ranney v. People, 22 N. Y., 417. State v. Magee, 11 Ind., 154. Ex parte Fisher, 18 Wend., 608. Long v. Woodman, 58 Me., 49. Groves v. Hedges, 58 Penn State, 504. The answer therefore, does not state facts sufficient to constitute a defense.
The judgment is reversed, and the cause remanded for a new trial.
Reversed and remanded.