91 Neb. 798 | Neb. | 1912
This is an action on a promissory note for $840. Defendant agreed to buy from plaintiff a quarter-section of land in South Dakota for $5,200, and paid $200 down. Later he executed a formal contract of purchase and a series of notes for the remainder of the purchase price The note in controversy is the first of the series. It bears date August 21, 1909, and fell due December 1,1909. In his answer defendant admitted, the execution of the note, but pleaded it was void on the ground that he had been induced to sign it by the false and fraudulent representations of A. H. Ra.it, who, as agent of plaintiff, conducted the negotiations leading up to the alleged fraudulent sale. The answer also contained a cross-bill demanding judgment for the amount of the cash payment. The charges of fraud consisted principally in the making of false representations that the land was situated 2J miles from Wetonka; that land of like character was selling for $35 to $40 an acre, and that the tract in controversy was better than the average quarter; that it was free from alkali, gumbo or hard-pan; that there were stones upon the
The principal question argued is the insufficiency of the evidence to sustain the verdict.
Can the A^erdict be sustained on proof that Rait told defendant the land was 2¿ miles from Wetonka? Defendant testified that such a statement had been made, but it was denied by Rait. In any event it is undisputed that defendant, about mid-day, before he signed the contract of purchase or the note, went in an automobile directly from the land to Wetonka and there examined a map sIioaving the exact distance. The evidence is uncontradicted that he had himself an accurate source of information, and that Rait pointed out to him the location of the land and the town of Wetonka on a map showing the distance between. Moreover, the abstracts fail to show that the
Can the verdict be sustained on proof that the market value of land of like character was misrepresented? If such representations were made, there is no evidence that they were false. Besides, the issue as to the market value of land was WithdraAvn from the jury by an instruction of the trial court.
Can the verdict be sustained under the charge that Rait falsely represented that the land was free from alkali and hgrd-pan? In support of these and other allegations of the answer, defendant testified he was told by Rait: “I will guarantee you there is no alkali or gumbo in this soil. Wherever you find a clay subsoil, as I have told you before, you will not'find any gumbo or alkali.” He further testified Rait represented to him that the surface was loam with a clay subsoil; that there were stones on the surface, but none under it, and that, when they were picked off, the place would be free from stones; that the water on the surface was not alkali water; that a draw crossing the land gave good drainage; that “there is as fine land as there is under the sun;” that “it was as good land as there was under the sun for crops;” that he would guarantee the land to be as represented. In testifying, defendant also stated that he told plaintiff he must rely on him; that he did so and believed Bait’s representations and relied on them; that Rait said he was familiar with the land and the surrounding country; that defendant was not; that, when defendant was on the land to inspect it, he was hurried away by Rait and did not have an opportunity to complete his inspection. All of the testimony tending to prove misrepresentations is emphatically denied by one or more witnesses. Whether it is sufficient in this
Defendant was 46 years old, and had been farming near Lincoln for 26 years. His own story is that in August, 1909, he went with two of his neighbors and friends to Wessington Springs, South Dakota, to look at land, and to buy a tract, if he found one to suit. He was also accompanied by two real estate agents-, Hutchinson and. Allen. The party spent two days inspecting lands near Wessington Springs, but defendant declined to make a purchase because the lands offered for sale were too rough and hilly to suit him. Afterward he went with his two friends and Allen to Aberdeen, and by the latter was introduced to Rait, who was an entire stranger. To Rait defendant stated he would buy a piece of land, if he found one to suit him, and he was taken in an automobile on a tour of inspection. On the trip Rait occupied the front seat with the chauffeur. Defendant sat in the rear seat with his two friends. Three tracts of land were inspected. In regard to the first, defendant testified Rait guaranteed that it was free from alkali, but that he did not buy it because he thought there were too many buffalo-wallows, that they represented alkali, and that the land did not suit him. He looked at the second piece, but, according to his own testimony, did not buy it because there were too many stones on it. Up to this time the evidence is undisputed that he acted on his own judgment as to the character of the land, taking into consideration buffalo-wallows as indicating the presence of alkali. The third tract is the land in controversy. When they arrived, Rait remained at the automobile and defendant went onto the land with one of his friends. There was a swale on the quarter-section, and the rough land in connection with it was variously estimated by the witnesses to be from three to eighteen acres. Defendant admits that he crossed this swale, and he afterward referred to buffalo-wallows therein. He therefore saw the swale itself and the land on both sides
Material misrepresentation as to stone is not proved, and the same may be said of the charges that Bait falsely represented there was no waste land and that all could he cultivated. The allegations that the land was falsely represented to be worth $32.50 an acre and that plaintiff’s title was good were not proved, and the trial court withdrew” those issues from the jury. It is clear that .the verdict cannot be sustained under the representation that the soil would produce an average of 32-] bushels of wffieat to the acre and a large amount of flax. Proof that these representations were made does not appear in the abstracts; but, if they were made, they would, under the circumstances of this case, amount to no more than an expression of opinion not amounting to actionable fraud, since both parties understood that the land had never boon tilled.
It is also argued that Rait was guilty of fraud in entering into a secret agreement with the two friends of defendant to pay them a commission in case of a sale. An examination of the abstracts in connection with the bill of exceptions fails to disclose evidence to sustain this charge.
The evidence being insufficient to sustain the verdict, the judgment of the district court is reversed and the cause remanded for further proceedings.
Reversed.