10 S.D. 576 | S.D. | 1898
This action, sounding in tort, and based upon a $700 claim for damages, occasioned, it is alleged, by false, fraudulent, and deceitful representations of the defendant, by
It is conceded that, pursuant to the contract, and in full consideration of $2,400 for the land, respondent gave appellant, as the agent of the owner, Mina C. Warren, $100 in cash, five head of horses, valued at $600, and assumed the payment of two mortgages aggregating $1,000, and further obligated himself to pay her $700, evidenced by two equal installment notes, and that thereafter, by a mutual arrangement, respondent, by quit-claim deed, transferred the land back to Mina C. Warren, who delivered up said notes for cancellation, but no part of the money paid to appellant, nor the horses delivered to him, were ever returned. In support of the contention that the evidence is insufficient to make out a case against appellant, his counsel maintain that, ‘ ‘as plaintiff has failed to establish or prove the difference between the value of the farm actually received and the value of the farm he would have received had the boundaries been as represented, he has failed to show actual damage, and the verdict cannot be sustained.” The evidence shows, and no claim is made to the contrary, that the land described in the contract of purchase is not nearly so valuable as the tract respondent actually thought he was buying, and, having rescinded the contract, on that account he could, upon proof of injury sustained to that extent by reason of the deceit complained of, rightfully recover in this action, in the way of damages, the value of all that appellant, as the agent of the grantor, has received and retained as part consideration for the property. Campbell v. Hillman, 61 Am. Dec. 195; Bartholomew v. Bentley, 15 Ohio 660; Kroeger v. Pitcairn, 101 Pa. St. 311; Hedden v. Griffen, 136 Mass. 229. That one who perpetrates a fraud acted throughout in the capacity of agent is no defense to an action against him to recover compen
As the tendency of modern authority is to encroach upon the old doctrine of caveat emptor,' and place reasonable responsibility upon the seller,-there is no merit in the contention that respondent was in duty bound to make further inquiry and investigation as to the boundaries of the land, and, having failed to do so, he cannot recover, though deceived and injured by appellant. Bank v. Taylor, 5 S. D. 99, 58 N. W. 297. The same proposition was urged in the case of Kirkland v. Lott, 3 Ill. 13, and the court say: “If the plaintiffs had made no representations as to the location of the lots, the defendant would reasonably have sought, and might have obtained, correct information from some other source; and it is not for the plaintiffs to say that it was his folly not to have done so, when their representations were the cause of his omission. Credulity on his part is no excuse for fraud on theirs.” Respondent had the right to confidently rely upon every material representation