163 Iowa 470 | Iowa | 1914
Prior to October 14, 1909, plaintiff was the owner of two hundred and eighty acres of land in Davis county, Iowa, and defendant owned two hundred and forty acres in Kearney county, Kan. September 23, 1909, plaintiff and his wife, and defendant, entered into the following contract in regard to their properties:
This contract entered into on this 23d day of Sept., 1909, by and between J. H. Shuttlefield and Augusta Shuttlefield, parties of the first part, and W. J. Neil, party of the second part, witnesseth: That parties of the first part hereby agree to sell to party of the second part their two hundred and eighty acre farm in Soap Creek township, Davis county, Iowa, at $40.00 per acre. Said farm being the farm on which said first parties are now living. Second party to turn in his two hundred and forty acre farm in Kearney county, Kansas, at $20.00 per acre, and any balance to be paid by second party in cash. It being understood that $500.00 of said balance shall be paid by second party to first parties when a written acceptance of said Kansas land at said price is made by first parties. It being understood that this contract shall be in full force and effect only in case said first parties are willing to accept said Kansas land at said price, after an inspection thereof. Said option to be exercised on or before Oct. 15, 1909. In case said option is exercised, both parties agree to furnish warranty deeds and abstracts of title to their re
J. H. Shuttlefield
Augusta Shuttlefield
Parties of the First Part.
W. J. Neil
Party of the Second Part.
Before October 14, 1909, plaintiff and one William K. Williamson went to Kearney county, Kan., to examine the land, and after their return the following acceptance was executed:
Whereas parties hereto on Sept. 23, 1909, entered into an option wherein first parties agree to sell their two hundred and eighty-acre farm in Soap Creek township, Davis county, Iowa, at $40.00 an acre and accept as part payment thereon, the two hundred and forty-acre farm of second party in Kearney Co. Kansas, at $20 an acre, and balance to be paid in cash, said deal to be closed providing the Kansas land was acceptable to first party, and whereas first party has examined the Kansas land and the same is acceptable to him at said price, said option is hereby exercised, and the parties hereto agree as follows: To at once make and deliver warranty deeds and abstracts to their respective premises. Second party to pay to first parties the balance due them, amounting to $11,200.00 minus the amount now due on the $4,500.00 mortgage to John Webber and the $500:00 mortgage due to Steekel & Sons, and the full amount of the judgment, and any other liens of any kind which may appear against said property of said parties.
It is further agreed that said parties shall pay the taxes on the Kearney county land and Neil shall pay the taxes of 1909 on the Davis county land.
Dated, Ottumwa, Iowa, October 14, 1909.
J. H. Shuttlefield
Augusta Shuttlefield
Parties of the First Part.
W. J. Neil
Party of the Second Part.
There is a dispute between the parties and a conflict in the evidence as to whether Williamson was the agent of defendant or plaintiff in the transaction. Plaintiff claims that defendant represented that his Kansas land consisted of two hundred acres of valley or bottom land and forty acres of hill land; that Williamson was. defendant’s agent, and that defendant and Williamson conspired to, and that Williamson did, fraudulently point out land which corresponded with that described and represented, but that the land so shown was not the land owned by defendant; that the land owned by defendant and conveyed to plaintiff was sand hills and of but little value. Defendant’s land was in section 19. The undisputed evidence is that the land shown to plaintiff by Williamson was-situated about five miles from defendant’s land and was in section 11. The evidence’for plaintiff tends to show that defendant agreed to send Williamson to Kansas with plaintiff to show him the land, and that in this, also, Williamson was acting as agent for defendant. It is conceded by appellant, in argument, that the jury must have found against the defendant as to the agency of Williamson, and that there was such a conflict in the evidence that they cannot ask this court to disturb that finding. We should assume then that Williamson was the agent of defendant.
After the witness had given his testimony, defendant testified that he had employed MeElroy as his attorney, and McElroy produced his books from which' it appeared that an entry had been made in regard to the $25 item which defendant claims was a charge against defendant, but which the witness claimed was only a minute to show the amount of money taken in by him.
If this evidence had all been before the court when the ruling was made, it would have made a conflict in the evi
II. On the question as to whether plaintiff relied upon the alleged fraud and representation of defendant and his agent, or whether he should be heard to so say, the court instructed:
(5) To recover in this action the plaintiff must show by the greater weight or preponderance of the evidence that the representations were made as alleged; that they were false and untrue; that the defendant knew that they were false and untrue; that they were made for the purpose of inducing the plaintiff to make the trade; that the plaintiff relied on said representations and was thereby induced to make the trade, relying upon such representations as true, and that, in so relying on such representations, he exercised ordinary care and prudence.
(6) The allegations of fraud and misrepresentation charged in plaintiff’s petition and for which he claims damages in this case are: First: That defendant represented to him that he owned two hundred acres of valley land and forty acres of hill land in Kearney county, Kan., worth $20 per acre, which land would be shown to plaintiff in ease of a trade, and, if then satisfied, the trade would be made; second, that defendant afterwards sent one Williamson as his agent to show plaintiff the land, and that said Williamson showed' him about two hundred acres of nice bottom land, irrigated or subject to be irrigated, and forty acres of hill land, as the Neil land, and afterwards made him a deed for a different and inferior piece of land; that the land shown
(7) If you find from the greater weight or preponderance of the evidence that prior to the trade the defendant told plaintiff that he owned two hundred acres of level or valley land and forty acres of hill land in Kansas, which he would put into trade at $20 per acre, and that plaintiff relied on this statement as to the quality of the land and was thereby induced to make the trade, and that the plaintiff in the exercise of ordinary care had the right to rely on such representation as true, and that defendant made the representation for the purpose of inducing the plaintiff to make the trade, and you further so find that such representation was not true and that the defendant knew that they were not true at the time, you should find for the plaintiff.
(9) Another element which is essential to plaintiff’s recovery in this action is that the plaintiff relied on such representation and was thereby induced to make the trade, and that he, in the exercise of ordinary care had the right to rely on them. It is for you to say, from all the evidence in the case, and the circumstances proven thereby, whether the plaintiff had the right, in the exercise of ordinary care, to rely on them. You should consider for this purpose, among other circumstances, the fact that the plaintiff reserved the right in his option contract to see the land before completing the trade; that he did go out to see the land, and the situation and condition of the land shown to him when he went out to see the land; what buildings, structures and fences were on the land, so shown to him, and all the other facts and circumstances in evidence. If the plaintiff, in the exercise of ordinary care, did not rely on any representation made by defendant, if he did make any, the defendant would not be liable in this action for such representation.
(14) In determining whether plaintiff relied on Williamson’s statement that the land in section 11 was Neil’s land, and whether as an ordinarily prudent man he had the right to rely on such statement, if it was made by Williamson as defendant’s agent, you should consider, compare, and weigh all the testimony and evidence in the case, and all the circumstances which such” evidence tends to prove. You should take into consideration plaintiff’s age, experience, and education, or lack of it; what objects were visible on the land pointed out in the way of houses, occupied and unoccupied;
The only objection made by defendant to any of these is the clause, near the end of No. 14, which reads, “what, if any, inquiries he made from others living near the land.” This will be referred to later. He makes no complaint as to the law as given by the court in regard to the care required of plaintiff in making the trade.
Plaintiff says that, under the facts of this case, the rule given by the court, and as contended for by defendant, does not apply; that under the later cases a purchaser of property is not required to investigate, but may rely on the representations of the seller, if the statement or representation is a positive affirmation of a fact. Plaintiff is not in a position to complain, and does not, but says the instructions given were more favorable to defendant than he was entitled.
Many authorities are cited by both parties, but there is really no serious difference between them as to the law. The fact question as to whether or not plaintiff 'was, or should have been, misled has been elaborately argued by both sides; defendant contending that the evidence is not Sufficient to sustain the verdict, while plaintiff contends it was a question for the jury. This appears to be the point most strongly urged
This doctrine, defendant contends, was approved by this court in McGibbons v. Wilder, 78 Iowa, 531, 535. But in that case it was further said: “On the other hand, it is said that ‘a man to whom a particular and distinct representation has been made is entitled to rely on the representation and need not make any further inquiry, although there are circumstances in the case from which an inference inconsistent with the representation might be drawn. ’ Kerr, Fraud & Mis
Appellant also cites, as sustaining the doctrine of the Slaughter case, Moore v. Howe, 115 Iowa, 62, 64; Dorr v. Cory, 108 Iowa, 725, 731; Bell v. Byerson, 11 Iowa, 233, 237; Farrar v. Churchill, 135 U. S. 609 (10 Sup. Ct. 771, 34 L. Ed. 246, 250); Southern Development Co. of Nevada v. Silva, 125 U. S. 247 (8 Sup. Ct. 881, 31 L. Ed. 678, 680, 681, 683);
In the Moore case, supra, the purchaser saw defects in cloaks he was buying, and continued to sell goods after such discovery, and treated the stock as his own for several months, and it was held that under such circumstances he was not entitled to rescind. In the Dorr ease, 108 Iowa, 725, the representations were as to value. Defendant also cites Scott v. Burnight, 131 Iowa, 507; Hanson v. Kline, 136 Iowa, 101; Haack v. Scott (Iowa) 124 N. W. Rep. 1068; Moberly v. Alexander, 19 Iowa, 162; Ladd v. Pigott, 114 Ill. 647, 651 (2 N. E. 503); 20 Cyc. 58 — on the proposition that where a party is induced not to visit a tract of land which he is buying or trading for, located at a distance, and does not visit it, he may then rely upon the representations made by the seller and is not guilty of neglect to exercise proper precautions. He also cites Knapp v. Schemmel (Iowa), 124 N. W. Rep. 309; Brett v. Van Auken, 99 Iowa, 553, 554—
One of the elements of the fraud charged is that plaintiff believed the ” representations, relied thereon, and was induced thereby to take the Kansas land. As an extreme illustration, if the seller of a horse falsely and fraudulently represents it to be sound when, in fact, it had all four legs cut off, the buyer, upon seeing such a condition, ought not to be allowed to say he relied on the representation. Or if land is represented as level valley land, when, in fact, it consists of high, steep hills and deep ravines, which are. obvious, a purchaser examining such land could not say he relied upon the representation, and a jury would not be justified in so finding. As said in the McGibbons case: “It has been held -that where the seller of a horse falsely and fraudulently'represents the animal to be .perfect and sound, when in fact he has no tail or has lost an ear, there can be no recovery for such representation, because the defect is as open and obvious to the buyer as it was to the seller.” ®
III. If it was not obvious to plaintiff when he examined the land shown him by Williamson that it was not the land' described and as represented by defendant, then plaintiff contends that he had the right to rely on the representation of defendant that his Kansas land consisted of two hundred acres of valley, or bottom, land, and forty acres of hill land, and upon the statement of defendant’s agent, Williamson, that the land shown was the land described and owned by defendant; that such representations were positive statements of fact as of their own knowledge. He relies on McGibbons v. Wilder, supra; Riley v. Bell, 120 Iowa, 618; Boddy v. Henry, 113 Iowa, 462, 465; Boddy v. Henry, 126 Iowa, 31; Selby v. Matson, 137 Iowa, 97, 102, 14 L. R. A. (N. S.) 1210;
This court has not followed the rule of the Massachusetts court and some others.
' The case of Parker v. Moulton, 114 Mass. 99 (19 Am. Rep. 315), cited by appellant, is but following the rule of Gordon v. Parmelee, 2 Allen (Mass.) 212, and of Mooney v. Miller, 102 Mass. 217, which the Supreme Court of Massachusetts refused to extend, in Mabardy v. McHugh, 202 Mass. 148, 149 (88 N. E. 894, 895, 23 L. R. A. (N. S.) 487, 491, 132 Am. St. Rep. 484, 486, 16 Ann. Cas. 500, 501), from which we cite, page 491, where it is said: ‘ ‘ This court, in recent years, by pointed language and by conclusions reached, has indicated a plain disposition not to extend legal immunity for the falsehood of vendors in the course of negotiations for sales beyond the bounds already established. Dawe v. Morris, 149 Mass. 188-192 (21 N. E. 313, 4 L. R. A. 158, 14 Am. St. Rep. 404).” And, same page, saying further: “In many other jurisdictions the rule of Gordon v. Parmelee, and Mooney v. Miller has not been followed, and false representations as to area of land, even though true boundaries were pointed out, have been held actionable. McGhee v. Bell, 170 Mo. 121, 135, 150 (70 S. W. 493, 59 L. R. A. 761); May v. Loomis, 140 N. C. 350 (52 S. E. 728); Boddy v. Henry, 113 Iowa, 462-465 (85 N. W. 771, 53 L. R. A. 769); Boddy v. Henry, 126 Iowa, 31; Antle v. Sexton, 137 Ill. 410 (27 N. E. 691); Estes v. Odom, 91 Ga. 600-609 (18 S. E. 355); Lovejoy v. Isbell, 73 Conn. 368-375 (47 Atl. 682); Cawston v. Sturgis, 29 Or. 331 (43 Pac. 656); Starkweather v. Benjamin, 32 Mich. 305; Paine v. Upton, 87 N. Y. 327 (41 Am. Rep. 371); Mitchell v. Zimmerman, 4 Tex. 75 (51 Am. Dec. 717); Walling v. Kinnard, 10 Tex. 508 (60 Am. Dec. 216); Speed v. Hollingsworth, 54 Kan. 436 (38 Pac. 496). See, also, Fairchild v. McMahon, 139 N. Y. 290 (34 N. E. 779, 36 Am. St. Rep. 701); Schumaker v. Mather, 133 N. Y. 590 (30 N. E. 755).”
The Massachusetts court, in the Mabardy case, 202 Mass.
In Starkweather v. Benjamin, 32 Mich. 305, among other things, it is said: “Wherein a defense to an action for deceit in misrepresenting the quantity of land conveyed rested mainly on the ground that the purchaser saw the land, and was as able to judge of its size as the vendor.”
In denying this contention, the court, speaking through Campbell, J., said: “We do not think the doctrine that where both parties have equal means of judging there is no fraud applies to such a case. The maximum is equally valid that one who dissuades another from inquiry and deceives him to his prejudice is responsible. It cannot be generally true that persons can judge of the contents of a parcel of land by the eye.” Cawston v. Sturgis, 29 Or. 331 (43 Pac. 656).
In Pringle v. Samuel, 1 Litt. (Ky.) 43 (13 Am. Dec. 214), it is said: “But to ascertain its quantity, requires a greater skill and larger proportion of science than, even in this age, is acquired by a majority of men. Almost every rational man may be capable of deciding on the quality of land, while but few can ascertain its quantity with accuracy.”
In Antle v. Sexton, 137 Ill. 410 (27 N. E. 691), where the false representations consisted of a false statement of the acreage, and the land was pointed out to the vendee, this rule was announced and applied: “Where a misrepresentation is made as to a material fact, and such misrepresentation is made knowingly and for the express purpose of deceiving and defrauding, and the party injured relies upon the statement made, and under circumstances which should induce a reasonably prudent man to so rely, there must be a right of action
When the party charging false and fraudulent representations has shown that the representations were made and that they were false and known to be false by the party making them, the intent to deceive is implied or presumed. Boddy v. Henry, 126 Iowa, 31, 37, on page 41, in which case it is further said:
It is well settled that the buyer who examines land before purchasing may nevertheless rely upon the representations of the seller as to measurements. Pringle v. Samuel, 11 Ky. (1 Litt.) 43 (13 Am. Dee. 214), is an instructive case upon this point. The owner of a small farm contracted to convey it for the gross sum of $1,000. In a subsequent litigation between the parties, the purchaser set up a claim that the seller had falsely represented the farm to contain fifty acres, when, in fact, it proved to contain a materially smaller quantity. It was shown that the purchaser saw the land before buying, and expressed a doubt as to the number of acres, but accepted the seller’s word, and made the purchase. The seller contended, as is done here, that the purchaser, having looked at the land, was bound to protect himself, and could not be heard to say that he relied upon the representations made to him. The opinion proceeds: ‘It is also contended that the maxim caveat emptor applies and bars relief, and that the plaintiff was as much bound to ascertain the true quantity as the defendant, and that by admeasurement he could have
Again, in Boddy v. Henry, supra, on pages 42-43, quoting from Starkweather v. Benjamin, 32 Mich. 305, it is said:
When a positive assurance of the area.of a parcel of land is made by the vendor to the vendee, with the design of making the vendee believe it, that assurance is very material, and equivalent to an assurance of measurement. The rule of the case here cited is especially applicable to facts like those at bar, where the buyer is referred for information to the seller’s own agent, who answers the inquiry in a manner to confirm and strengthen the buyer’s confidence in the truth of the representations made by the principal. .Plaintiff could not have measured and ascertained the quantity of these lands with any degree of certainty without much time and expense, and we think there is no principle of law or equity which required him to rely upon the defendants ’ representations at his peril.
“Whether they were false and fraudulently made, and whether plaintiff believed and relied upon said representations were questions for the jury.” Boddy v. Henry, 126. Iowa, 31, 43.
Whether the representations were falsely and fraudulently made, whether plaintiff believed and relied upon them, and whether, under the evidence and the instructions given,
It appears that defendant obtained this land in a trade a year or such a matter before through Williamson, or that Williamson, was in some way interested in the trade. Williamson told plaintiff he had seen the land before. Plaintiff and Williamson did go together. Defendant gave Williamson an abstract of title, but this was not shown to plaintiff until they wére on the Kansas land. Plaintiff is illiterate. Defendant’s land was in section 19. According to plaintiff’s witnesses, it consisted of sand hills and was worth about $2.50 per acre. Defendant’s Avitnesses put the value at about $5 an acre, some of them perhaps more. The taxes on the entire tract of two hundred and forty acres were $3. This is the land which was deeded to plaintiff under the contract. The
The evidence is undisputed that before plaintiff went to Kansas to inspect the land he understood defendant’s property in section 19 was raw, unimproved land. He says that during the negotiations defendant told him that it -was wild land, but that the cattlemen had fenced it. It is also undisputed that on section 11, a part of w^hieh was shown to plaintiff as defendant’s land, were houses and outbuildings. One house is situated in the northwest corner of the northwest quarter, another near the northwest corner of the northeast quarter, another near-the northeast corner of this quaiffer, and a small, one-story pumping house, 14x16 feet, 'near the southivest corner of this quarter. There is another small pumphouse and a dwelling on the w'est side of the southwest quarter. There is also a dwelling house on the section east of 11, about east of the southeast corner of the northeast quarter of 11. There is an east and west fence through the center of section 11, and one on the west side of the southeast quarter. The pumping plant was run by electricity. There‘is a row of electric poles from the west pumping house running northeast to the pumping house in the northeast quarter, and thence northeast to a point about forty rods south of the northeast corner of the northeast quarter. At the time in question there was some alfalfa growing on section 11, a few acres in the southeast corner of the northwest quarter and the northeast corner of
From the circumstances just mentioned, it is argued by appellant that it must have been obvious to plaintiff that the land shown him by Williamson was not the raw land which had been described by the defendant, and that he had no right to rely on the statement of Williamson that this was the land. It will be seen that the southeast quarter of 11, containing one hundred and sixty acres, which, as stated, answered the description as to the character of defendant’s valley land as represented, according to plaintiff’s witnesses, was nearly the amount stated, to wit, two hundred acres, and that, by taking a part of some or all of the other three quarters into consideration, there could be two hundred acres of such land, measured as well as a man could by the eye. The buildings ■ described were on six, hundred and forty acres. There was hill land to the south of and adjoining section 11.
We shall now refer to some of the circumstances shown in the evidence from which the jury may have found, and which in our opinion authorized the jury in finding, that plaintiff was justified in relying on Williamson’s assertion that the land shown was the land belonging to the defendant. Some of these tend to show that Williamson was intentionally trying to deceive plaintiff. Defendant and Williamson had said they were acquainted with the land, and defendant had told plaintiff that Williamson knew the land, and for that reason defendant sent Williamson to show it. The defendant is presumed to know the location of his own land. Selby v. Matson, 137 Iowa, 97, 102.
Plaintiff was an entire stranger in that country. It was a cold, foggy, rainy day. The nearest dwelling house on see
As a witness, plaintiff testified he thought there were about two hundred acres of the valley land. Plaintiff also says that Williamson told him that the fences had been put there by the cattlemen since he saw it, and that he thought the fence on the north side of the southeast quarter was not on the line; that the line was further north than the fence.
Witness Gibson, who built the fences, testified that some of them had, in fact, been moved. It is not quite clear from his evidence whether or not they were first put on the line and afterwards moved. His evidence is: “The fences were put on the line Avhere they surveyed; they were straight; I built the fence around the section myself and put in some of the cross fence, but they have all been moved; I never put in any fence along any survey in the inside of the section, but this fence that runs east and Avest from Long’s that was surveyed right there, and stakes in and posts put right along there, and this fence that runs from the pumphouse down to the line — they were all surveyed; the company put in the fences; I seen the stakes; that fence comes right along there where it was surveyed; it was surveyed doAvn by our place and they were going to divide it into four quarters.”
It is true that plaintiff saw the poles, the pumping house near the center of the section, and the growing alfalfa west of the fence on the Avest side of the southeast quarter, on land,
IV. Complaint is made of these words in instruction 14, “what, if 'any, inquiries he made from others living near the land.” It is said there was no evidence that he made any such inquiries, and this appears to be the fact, but appellant has not given it all. The entire clause is, “what, if any, inquiries he made from others living near the land, and, if he made no such inquiries, the reason therefor.” This means no more than saying that the jury should consider whether or not he made inquiries, and, if he did not, the reason for not doing so. Plaintiff did explain why he did not make inquiries.
Counsel appear to have overlooked the pleadings. It is alleged in the petition:
Plaintiff avers the fact to be that the defendant, Neil, well knew, and his agent knew, that the land so shown to plaintiff was not the land owned by W. J. Neil nor the land that he expected to deed to plaintiff in exchange for plaintiff’s farm; that deféndant knew that the representations that he made, that two hundred acres of the land that he claimed to own in Kansas and intended to deed to plaintiff was bottom or valley land and forty acres only hill land, was false and untrue, and said representations were made by the defendant and his agent for the purpose of cheating and defrauding this plaintiff and that they were relied upon by this plaint
We think plaintiff had a right to rely upon the statement of defendant’s agent, purporting to be made from the agent’s personal knowledge that there were two hundred acres in the valley land shown him by the defendant’s agent; that the fences were not on the line; and that it had been fenced since Williamson claimed to have last before seen it. Plaintiff had a right to rely upon the agent’s statement, notwithstanding the cross fences and the poles and pumping shack he found upon the- land.
Again, the jury could have found from the evidence that the land shown by Williamson tallied with that described by the defendant. Under the pleadings and the evidence, ■we think the instruction is correct.
VI. There was no error in refusing to give defendant’s requested instruction No. 6. The thought of it is that from what plaintiff saw he had no right to rely on Williamson’s statement that the land being shown was defendant’s land. This matter has been disposed of by what we have already said.
The Clapp case was an action in equity to rescind. The evidence in that case tended to show that the land conveyed was as valuable as the land contracted for, and it was urged that if this was true there could be no rescission. The court held otherwise, and in the discussion said: “It is likely true that proof of such facts would be a complete defense in an action at law for fraud.” It would be a defense in the sense that there would-be no damage. If there was no damage, the verdict would be for defendant. No more than this was meant by the language of the opinion, as appears by what follows the part quoted.
In the case at bar defendant attempted to prove that the land in section 19 was worth as much as that in section 11. Had he satisfied the jury of that fact, he should have had the verdict.
The Holmes case was reversed because an instruction given did not include the idea of scienter, and offered instructions 2 and 4, which were refused, did cover that point. Because the evidence tended so strongly to show that defendant was himself mistaken as to the location and quality of the land, the court said the third instruction should have been given. The substance of the third instruction was that, if defendant was mistaken and made the representations in good faith, plaintiff could not recover. That case is not like the one at bar in its facts because of the acts of 'Williamson. Aside from this, we think the doctrine of the third instruction in the Holmes case was covered by the instructions in the ease at bar, for that the court instructed that plaintiff was suing for fraud, and that before he could recover he must establish all the elements, which were stated.
The Boddy case holds: “The introduction of the words ‘more or less’ or ‘about’ or ‘estimated’ in a conveyance or contract for conveyance does not afford a shield against liability
The Smith case' was an action in equity to rescind, and holds that there may be a rescission in equity for fraud without proof of scienter, or for mutual mistake, without fraud.
In the fifth instruction before quoted, the jury was told that plaintiff must show by a preponderance of the evidence that the representations were made as alleged and that plaintiff relied upon them, and that in so doing he exercised ordinary care and prudence. Having thus fully instructed upon the burden of proof it was not necessary to repeat that the burden of proof was upon plaintiff to show the falsity of these representations claimed to have been made, in part by the defendant, and in part by Williamson, whom he claimed was defendant’s agent. It is said by the court that the burden of proof is on the plaintiff to show by the greater weight or preponderance of the evidence that he has been defrauded by defendant as alleged. And one of the principal charges is that one of the means used by defendant was Williamson, who was his agent. The burden of proof then was upon plaintiff to show not only that he was so defrauded, but that the instrument used was defendant’s agent; for it is alleged such was the scheme by which defendant circumvented plaintiff to his damage.
No. 12 of defendant’s requested instructions was covered by those given by the court.
Requests 14, 15, and 16 were to the effect that plaintiff had no right to believe that any part of the southwest, or northeast or northwest quarters of section 11 was a part of the land owned by defendant hnd are disposed of by what we have already said.
From the evidence, the jury may well have found that the land as represented, or shown, would have been worth as much as $20 an acre, and that the land in section 19, actually . conveyed was not worth more than $2.50 per acre. The amount allowed was $3,500, or $17.50 per acre, for two hundred acres. In our opinion, it is not excessive.
As before stated, plaintiff and Williamson were on the southeast quarter and near this pumping station, when Williamson made the statement that they were on the land of defendant.
For the reasons heretofore given, we think the evidence was competent. The case has been carefully and well presented. We have examined the large record with care, and conclude that there was no prejudicial error. The judgment is therefore Affirmed.