38 Iowa 133 | Iowa | 1874
In October, 1868, Lewis LI. Mans was in Iowa looking for land on which to settle. At that time he passed by the land in question, and over a portion of the same, and learned from plaintiff’s brother then living on the land that it was for sale, and that the price asked was $30 an acre. At the same time he procured plaintiff’s address.
He thereupon wrote the plaintiff the following letter:
Mr. J. H. Stafford: — I am out here looking for some land to settle on. Have been looking at yours, and talked some with your brother yesterday. He was loading up to move off to-day, and said your land is for sale. Will you sell me one piece next to Zeíglers, as I understand it to be ; the separate fourth, 160 acres, and at your lowest price. I wish to improve it next season, and what terms, &c., and then if I can raise parties to go in and keep the whole, what will be the best terms, and the lowest prices? Please answer first mail.
Direct, Lewis H. Maus.
(That is my present home.) _ Erie City, Penn.
The plaintiff, not fully understanding the place to which a reply was to be addressed, laid this letter aside and did not answer it.
About Nov. 12, 1868, he received from the other defendant, Geo. Y. Maus, the following letter:
Erie, Pa., Oct. 29, 1868.
J. R. Stafford, Esq.
Gasstown, Miami Oomity, Ohio.
Dear Sir: My father was out in Henry county, Iowa, a short time since, and learned from your brother whom he sa.w there, that you were desirous of selling some land you have there, which was said to be about 800 acres. My father wrote you from Iowa with reference to the property, with request that you would reply to his address at Erie, Pa., but as yet wre have heard nothing from you. Please let us know whether you desire to sell, and if so your lowest price per acre, and terms either for a part or the whole tract. If we buy we expect to fence and improve at once.
Respectfully Yours, Geo. Y. Maus.
To this letter the plaintiff replied as follows:
Gasstown, Ohio, Nov. 14th, 1868.
Geo. V. Maus, Esq., Erie, Pa.
Dear Sir: — Yours of the 29th Oct. is at hand. I suppose I received a letter from your father some three weeks since,
J. H. Stanford.
On the 17th of November, G. Y. Maus replied as follows:
J. H. Stafford, Esq., Oasstown, Ohio.
Dear Sir: — -Your letter of the 14th inst. received this morning. My father is now absent on business at Philadelphia and Harrisburg, but will return in course of a week or two. In reply to yours, &c., we will accept it. That is, take the whole 800 acres, and wish the corn you have there, at the price you mention, 30 cents per bushel. Please let me know whether you have any other grain you will sell there, or any farming implements, and if so, the price of same, and oblige,
Yours Truly, &c., Geo. Y. Maus.
Here is a distinct offer .and an acceptance in writing of the terms proposed. Up to this time the parties had not met. L. IT. Maus testifies in much detail as to verbal representations subsequently made by plaintiff, but he discloses in his cross-examination that he has never seen plaintiff, and it is apparent that all his testimony relating thereto is mere hearsay. Geo. Y. Maus testifies that in Jan., 1869, he called upon plaintiff at his residence for the purpose of learning definitely his price, terms, etc., and the nature and character of his land, and that then plaintiff made various representations respecting the roads, etc., and was informed that defendants relied solely upon the representations of plaintiff in making the purchase. This the plaintiff denies. The burden of proof to establish the fact is upon the defendant. It is not consistent with his letter of acceptance of November 17th, that he should afterward be inquiring price, terms and quality of land. The weight of evidence therefore, supports the conclusion that the representations which were made, are contained in the letter of Nov., 14th. A considerable portion of the testimony regards a d'iag
A considerable other portion of the testimony relates to the existence of small patches of willow and hazel upon the premises. But as no complaint is añade in the cross-bill of these, they need no particular notice. It is sufficient to say that the willows existed only in small patches,' that they were what-is known as pa’airie buck willows, about six to ten inches high, and that they aa’e entirely destroyed by the first ploaaghing, and that the hazel was not of siafficient quantity to affect in any anaterial manner the value of the land. As to the distance from Mount Pleasant, the weight of the evidence is that the statement made does not anatea’ially vary from the real distance. And as regards the hedge, the representation made was that it was owned by other persons, and not that it belonged to the land. There remains only -the representation as to the water, which was stated to be constant. The evidence shows that it is abundant in the spaing, that it grows scarce in the fall, ahd that when the season is añore than usually day, the water except in the wells disappears entirely. It is claimed that plaintiff knew the water was considered very anaterial) inasmuch as defeoadants wished the -premises for a stock farm’. But tap to the time the plaintiff’s offer was accepted, no intimation was añade that defendants desired it for aaay other than ordinary agricultural purposes. A misrepresentation, in order to entitle a .party to l’elief oar the ground of fraaad, maast be anaterial, and it must be in something in regard to which a known trust and confidence is placed in the party making it. 1 Story’s Equity, section 197. All the cia-cumstanees in this case rebut the presaamption that plaintiff believed saach confidence aaad trust were reposed iaa him.
He knew that one of the defendants had been west seeking to buy land, that he had looked at the land in question, and it was but natural to siappose that he made a full examination beftne writing the letter dated at Washington. Fiaadhea", the
Upon the whole case we are well satisfied with the action of the court, in refusing to rescind the contract.
III.. It is claimed that the decree should have been for the sale only of sufficient of the mortgaged premises to satisfy the amount of interest due at the time of the decree.
Affirmed.