166 N.W. 150 | S.D. | 1918
Lead Opinion
Plaintiff and1 one Schoener, residents of Pennsylvania, came to Tripp county, for the purpose of seeming government homesteads. They met one oif defendants on the train and learned that he was engaged in locating settlers on government lands and lived in Dallas. On their arrival at Dallas they went to his office and met both defendants. Both plaintiff and his companion knew that relinquishments of prior entries on government land could be bought which would enable them to get government homesteads, but were entirely ignorant as to the procedure, and of the rules and practices in the United States Land Office. ■Defendants advised them that they had relinquishments which could be bought , and after showing them variorts tracts of land, sold them relinquishments. Some two years later, after having filed and located on the land, plaintiff learned that defendants never had a relinquishment of any former filing on his land; that the only prior filing thereon was a soldier’s declaratory which had long expired; and that the land was open to filing and settlement without any relinquishment. He thereupon demanded a return of the monejr paid defendants, and upon refusal instituted this action. At the trial plaintiff testified that defendants first asked $659 for this quarter, but after further negotiations one. of the defendants said!:
*631 “The -parties and the widow that have the place want $325 for the relinquishment, and we would not handle that land for less than $100. If you give me $425 I will sell it to you; that $325 was to be for- the relinquishment and the $100 for the handling of the land.”
That defendant Owen said:
“We would not handle -this land for less than $1 an acre, but being -there is two of you we will handle it for $200 — $100 apiece. * * * It was mentioned it was- a widow, a soldier’s declaratory; a relinquishment for her * * * that they had to pay $325 for the relinquishment.”
Plaintiff accepted this proposition. One of the defendants then took plaintiff to the land office at Gregory and he made an entry and filing upon the land and- paid defendants $425.
The only contention of defendants at the trial was, and they so testified, that nothing was said about a relinquishment, but that they agreed to, and did, locate plaintiff upon the land and procured a valid filing thereon, for which the plaintiff agreed to pay and did pay' them $425. The cause was submitted to- a jury upon the issue raised by this- conflict in the evidence. The jury returned a verdit for plaintiff for $425, and interest.
“There is only one question in this case, and that is: Did the defendants make the representations testified to- by plaintiffs? If they did make such representations, and the plaintiff -relied-1 upon -them, and believed that he was -paying $325 for a relinquishment, and $100 for - the services of defendants in- locating and procuring the filing on the land in question for the plaintiff, the whole transaction would he tainted with fraud, and the defendants would be entitled to nothing for their services, and you -should' give the plaintiff the full amount claimed.”
—which instruction was excepted to and is assigned as error. This instruction was clearly erroneous. N-o fraud >or deceit was practiced. upon plaintiff by defendants, except the representation that they were selling him a relinquishment for $325. Upon the
. “One who willfully deceives another, with intent to induce him to alter his position to his injury or risk, is liable for: any damages which he thereby .suffers.”
This section defines actionable deceit.
Dissenting Opinion
(dissenting in part.) As this transaction was represented to, and1 understood by, plaintiff, no -part of the $325 was to pay defendants for their services in procuring the so-called relinquishment. They understood the $325 was the amount which the holder of the filing- charged for the relinquishment. It follows that -it was the understanding on the part of plaintiff that -the $100 covered not merely defendants’ charges for services which they led plaintiff to believe they were rendering him' in negotiating for and procuring the so-called relinquishment. The decision in this case should therefore be based upon the proposition that there was fraud in this transaction not only as to $325 of the consideration' paid, but also' as to the remaining $100.