83 Neb. 850 | Neb. | 1909
Plaintiff bought a tract of land of defendant Key, the sale of which was negotiated in part by defendant Carrig as Key’s agent. Plaintiff alleged, in substance, that he was induced to purchase by .the false and fraudulent statements of defendants that'there were 352 acres in the tract, .when, in fact, there were but 325'acres; that the
Carrig was served with summons in Platte county, where he resided, and wherein the action was instituted and prosecuted. Key was served with summons in Merrick county, where he resided, and, as cne defense, pleaded to the jurisdiction of the court. It appears from the evidence that Carrig did not know how many acres there were, but that he relied upon the information given him by his codefendant, in his negotiation of the sale, when he told plaintiff that there were 352 acres. Appellant contends that Carrig had a right to rely upon the information thus received, and that he is not liable to the plaintiff in any event, and should not have been made a party to this suit, and that the appellant should not be required to litigate this case in Platte county, there being no proper party defendant resident thereof whereby jurisdiction might be obtained over the appellant under the provisions of section 65 of the code. Carrig was made a party and properly served in Platte County, and, if plaintiff was not entitled to recover against him, the judgment against the appellant must be set aside for the want of jurisdiction, without regard to the merits of the case. The question therefore is: Did the ignorance of Carrig as to the number of acres in tb ’act of land, which he was selling for his codefm*. xcuse him from liability to the plaintiff? The evidence >ws that he told the plaintiff that there were 352 acres, by a positive statement of the fact, and without communicating to the plaintiff that his only source of information was the appellant. Relying upon this and like statements of the appellant, the plaintiff purchased the land in controversy.
' The evidence relied upon by the plaintiff regarding the number of acres establishes that in 1899 there Avere 335 acres only in the tract. The land is bounded on the west and south by the Loup river. On cross-examination the plaintiff testified that the river at times makes changes by accretion and washing out the land through which it crosses; that it changed its course at times in high water. With reference to this testimony, the appellant contends that the acreage in 1899 cannot be taken as a basis to determine his liability in 1904, the time of the sale. This evidence is hardly sufficient to justify the court in a conclusion that there was a change in the bank of the river along the boundary line of the land in controversy at any time. The surveyor who measured the land in 1899 visited it again in 1906, and testified that then there was less acreage. He did not survey the land in 1906, nor did he examine the entire tract, nor did he testify that there had been any change between 1899 and 1904.
The evidence supported the findings and the judgment of the lower court, and we recommend that it be affirmed.
By the Court: For the reason given in the foregoing opinion, the judgment of the district court is
Affirmed.