188 Iowa 1212 | Iowa | 1920
I. The defendant bank held a mortgage on the lands of plaintiff. It entered into an arrangement with him through- which it received a -deed to said lands from him. Concurrently with the deed, a contract was made, which, among other things, reserved possession in the grantor for a stated time. The tenant of the grantor paid into the defendant bank $1,000 rent money. The bank refused to pay this sum to the landlord, this plaintiff, on the ground that he had injured the bank in a sum much larger than $1,000 by the making of alleged false representations at the time the bank took deed and made contract, and possibly because of alleged breaches of guaranty then made
. II. The affirmative defense is this: The deed and the contract were made at the same time, and delivered together as a part of the same transaction, as an inducement to and as a part of the consideration to defendant. Plaintiff, before the signing and delivering, “made certain oral representations and guaranty to this defendant as to the true measure of indebtedness subsisting at that time” because of a certain life lease and mortgage held by Jule T. Qualley -and two mortgages to C. J. Weiser. It is averred that said oral representations and guaranty were, in effect and substance, that all of the incumbrance held by said Qual-ley “was paid, down to §2,500; that all of the interest on the Weiser mortgage was paid for the years 1915 and 1916, and plaintiff undertook to pay one half of the interest on the Weiser mortgage for the year 1917 and up to May 1st of that year.” Defendant “further avers and explains that, according to such representations and guaranty, it was the intention of these parties that the true consideration assumed to be paid by defendant upon the life lease and the two mortgages was the Qualley life lease and mortgage, which amounted to §2,500, and that all the interest on the two Weiser mortgages was paid to the first day of May, 1917, and that such was to be the true and full consideration to be paid by defendant upon said terms.” It is alleged that defendant “so understood it to be from the said represen-tátions and guaranty, and that plaintiff knew defendant so understood the transaction as to the measure and extent of the consideration of the said Qualley and Weiser items.” There is an allegation that the statements made “were false aiid fraudulent, and were known and intended by plaintiff
The fair interpretation of this pleading is that the bank was injured by said false and fraudulent representations made to it by plaintiff, and was damaged by a breach of the guaranty made.
III. The defendant offered to prove by its cashier, who conducted the transaction in question, the following: That witness talked with plaintiff about taking over the lands and helping an adjustment of the situation between plaintiff and the bank; that, in this talk, there was discussed the amount of the debts owed by plaintiff on the Qualley farm on account' of the Jule T. Qualley life lease and the amount of the two Weiser mortgages; that witness asked plaintiff about the amounts of these claims, “and he explained that he was assuring me as to such amounts as a guaranty, as I told him that I didn’t know and could not know, for the bank, as I had control only of the mortgage he had made to the defendant bank, and that I would have to rely upon his representation as to the actual amount of the said debts; and he said I could rely upon his statements as to the amounts actually due and to become due on the said lease and said mortgages, and accordingly, upon that answer to me, that assurance, I did rely upon his representations as to such amounts;” that, while the negotiations were in progress, but before signing and delivering of the papers, plaintiff said to witness and assured him and “worded out to him” that plaintiff understood witness was asking for a direct representation and guaranty that he would “truthfully tell me the amount of said named items;
Objections to this offer were sustained, and it is now to be determined whether that ruling was a correct one.
Neither is the objection tenable that the testimony “is calling for conclusions and assumptions.” It is a statement of what was said and done.
“While fraud is charged by defendant, the real contention, and that offered to be shown by McKay’s evidence, is that the real contract, as talked and understood between the parties, was not embodied in the writing;” that nothing is really claimed except that defendant misunderstood.
“You agreed to sell me a farm clear of incumbrances. You falsely and fraudulently told me it was clear. I find it is incumbered. I will keep-the farm, but you must pay me
We are constrained to hold that the objections made should have been overruled, and, therefore, the judgment below must be — Reversed.