Wolfgram v. Dill

157 N.W. 1059 | S.D. | 1916

POLREY, P. J.

In this action plaintiff seeks to recover damages for fraud and deceit, which he claim© were perpetrated upon him through the false and fraudulent misrepresentations made by defendants, and by means of? which he was induced to purchase a tract of land in Jerauld- county at a price greatly in excess of its value. The transaction took place during the summer and fall of 1911. The 'defendants E. E. Dill and T. E. Vessey were engaged in the real estate business at Wessington Springs, under the firm name and style of Dill & Vessey. Defendant E. G. Vessey was engaged in the banking business and occasionally dealt in land at Wessimgton Springs. Defendant Smith lived at Madison, Neb., where he was engaged in the real estate business with Dill & Vessey. His chief occupation seems to have been to help advertise land's that were owned- by or listed for sale with Dill & Vessey and to procure purchasers for such lands. Dill & Vessey carried an advertisement in a newspaper at Madison, Neb., advertising South Dakota lands, for sale, and which advertisement was signed: “Dill & Vessey, W-essington Springs, South Dakota. A. V. Smith, Rocal Agent.” Plaintiff resided on a farm, owned by himself, in the state of Virginia ,but he bad lived at Madison, Neb., and he and Smith had been intimately acquainted for many years. In the spring of 1911 he was -desirous of-coming to South Dakota, and, having seen the above advertisement in the Madison paper, wrote to- the defendant Smith relative to a sale o-r other disposition of plaintiff’s farm in Virginia. Said defendant immediately wrote a letter to plaintiff, and followed -ilt up with numerous other letters in which he advised plaintiff -to come to South Dakota and urged -him' to punchase an 800-acre tract of land owned by T. F. Vessey. After isotne correspondence, plaintiff declined1 this tract, but Smith immediately wrote, offering him another tract of 560 acres of land owned by -one W. S'. Eagle, and.which was listed with- Dill & Vessey for sale. This tra-c-t wa-s priced by the owner at $35 per acre, but defendants priced it to plaintiff at $65 per acre, and finally succeeded in selling- it to him1 at that price without his having- seen it. Without going into details of' the corre-, spo-ndence that led up to the purchase, suffice it to say that every feature of this land and the improvements thereon were greatly misrepresented to plaintiff; and it was these misrepresentations that induced himi to make the purchase.

The defendants Smith and Dill were out of the state when this action was commenced, and neither of them was served with summons or appeared in the case. At the close of plaintiff’s evidence, the defendants F. G. Vessey and T. F. Vessey moved for a directed verdict, on the ground that the testimony fails to connect either of them with any of the false representations that were made by plaintiff to induce him to buy the ’land, that the evidence showed that defendant Smith made all the false representations, that Smith was employed 'by and was acting as the agent of plaintiff, and that the evidence fails to show that either of the defendants F. G. Vessey or T. F. Vessey had any knowledge of the representations made by the defendant Smith to' the plain-tiff. This motion was granted, and the action was dismissed at plaintiff’s costs. The only question then is: Was there sufficient evidence to take the case to the jury?

It is alleged in plaintiff’s complaint that the defendants entered into a conspiracy for the purpose of inducing plaintiff to trade his farm in Virginia for ‘l-and in Jerauld -county that had been listed with Dili & Vessey, and at a price far in excess of its real value and of the price at which it was listed -with them,; that in furtherance of such conspiracy, and with the -in-tent to- cheat and defraud plaintiff, the defendant Smith falsely and fraudulently pretended to- act as the agent of plaintiff, and to be acting for his best interests in disposing- of his. Virginia farm-, and failed to disclose to plaintiff that he (Smith) was acting- as agent for the other defendants- in -disposing of -the Jerauld county land.

[1] The letters above referred to (some 19 in number) that were written :by Smith to plaintiff, with the exception of one and a portion of another, were all excluded from- the evidence by the trial court, on -the ground that neither of the -defendants T. F. Vessey nor F. G. Vessey w-as bound by the correspondence between Smith and the plaintiff. We bel-ieve these letters should hav-e been admitted in evidence. While they do not all relate to the tract of land that was finally sold to- plaintiff, they wer-e alL written- with the same object in view and related to the same -general -transaction, to-wit, the sale of land that was owned by or was listed- with the defendants Dill -& Vessey for sale. It appears, from these letters that, throughout the entire transaction, Smith: did pretend1 to- act in the interest of plaintiff, while in fact he was a-otinig in the interest of Dill & Vessey in an endeavor to sell plaintiff a .piece of land listed! with them for sale and at a price that: he knew to be far in excess of its val-u-e- and in excess of the price-at which it could- be purchased from: the owner. These representations were made wholly in the interest of Dill & Vessey and against the interest of .plaintiff. Had- Smith been acting in the interest of -plaintiff, he would have correctly informed -plaintiff of the true character of the Eagle farm, and he would have informed him as to its value and -price at which -the farm could have been purchased1 from the owner.

As a result of this correspondence, plaintiff, on the 19th day of July, 1911, signed a contract for the purchase -of the Eagle farm, at $65 p-er acre, am-o-unting to- $36,400. This contract was ■executed by the defendant Dill as the agent for the owner of the land. By the -terms o-f this contract, plaintiff’s farm in Virginia was to be taken in part payment, at the agreed- price of $15,000-Th-e balance of $21,400 was- to he payable at future dates and secured by -mortgages -on said farm. For the purpose- of securing this contract, Dill made a tri-p- to Virginia (at the expense of Dill & Vessey) and while there he examined plaintiff’s farm, and he also reiterated the representations that had been made by Smith-in regard to the Eiagle farm-. This contract was executed by Dili without any authority from Eagle, nor had Eagle any knowledge of it for some 60 days after .it had.'-been -executed, and, when it cam-e to -closing the -transaction-, would not and did- not ratify all its tennis, and- -refused to- surrender the deed to his land without a cash payment of $2,600. It is at this p-o-int that the defendant E. G. Vessey first appeal's in -the transaction. He is quoted- by one -of the witnesses as having said th-at, “when they [referring to the defendants Dill and Vessey] found they coul-d not swing the deal, they came to him.” Ero-m that time on he took an active part in 'consummating the trade. About the latter part of August he made a trip to Virginia to examine plaintiff’s farm. While there he made 'practically the same representations relative to the Eagle farm that had) been made in the letters written by defendant Smith, and that were made 'by Dill when he was in Virginia, and, to put plaintiff’s mind' at rest relative to the Eagle farm, told plaintiff that he was getting a “snap.” When the transaction was finally closed, it was defendant E. G..Vessey who made the cash payment of $2,600 on the Eagle land, and the plaintiff’s farm in Virginia was deed directly to him. In addition to* this he secured two mortgages, aggregating $4,400, from plaintiff on the Eagle land.

There are many circumstances that point to a concerted plan on the part of the defendants Smith, Dill, and T. E. Vessey to trade the Eagle farm in Jerauld county to plaintiff at a price that not only exceeded its real value, but that exceeded the price they were paying to the owner of the land hv an amount greater than the entire value of plaintiff’s Virginia farm. In other words, they were to get plaintiff’s farm for nothing, and a considerable sum of •money besides.

[2] At the trial of the case, the plaintiff offered to prove by a witness on thé stand, that during the latter part of October, 1911, and while the deal with plaintiff was still pending, defendant Dill made a statement to> the witness to' the effect that real estate men, in making deals, figure on getting the other fellow’s property for nothing, and, referring to the trade with plaintiff, said, “We got Wolf grain’s property for nothing, and he paid us for taking it.” This offer was rejected by the trial court, on the ground that it was immaterial, and not binding- on the defendants T. E. Vessey and F. G. Vessey. The objection was properly sustained. This statement was in the nature of an admission or declaration against interest as to Dill, and, had the action been against him, said statement would' have been admissable. But it was not a_ declaration made in furtherance of the alleged conspiracy, and was not binding as against either of the defendants in this action.

[3-5] Whether a conspiracy existed or not was, of course, a question for the jury, and we believe there was sufficient evi-den-c-e tending to show the existence of a conspiracy to have warranted the trial -court in submitting the question to the jury. True, there was no direct evidence of a conspiracy, but that is not material. Circumstantial evidence is competent to -prove a conspiracy, and, if sufficient to convince the jury, is sufficient in law. Where two or more persons- are found to be working for the accomplishment -of the same definite object, it may be inferred that they are pursuing a preconcerted plan -or arrangement to accomplish that object. Nor is it necessary to show that any particular member of an alleged! conspiracy was a party to the wrongful enterpris-e at its inception, for-“every person entering into a conspiracy or common design already formed is deemed in law a party to all acts done by any of the other parties, either -before or afterwards in furtherance of the common design.” Patch Mfg. Co. v. Prot. Lodge No. 215, 77 Vt. 294, 60 Atl. 74, 107 Am. St. Rep. 765. Therefore the fact that F. G. Vess-ey is n-ot shown to have taken -any part in the enterprise until the design had- -been partly executed is immaterial. If 'he joined with- the other defendants at any stage o-f the transaction, and h-e-lped to -carry it through an-d -participated in the fruits of the enterprise, he became as much a -conspirator, if in fa-ct a conspiracy existed, -as those who- originated the design.

[6] Respond ente contend itba-t the misrepresentations were made solely by the -defendant Smith, -but this contention is not borne out by the record. Not -only did1 the other defendants ratify and adopt all of Smith’s fraudulent acts, but the- evidence shows that both Dill and F. G. Vessey, while in Virginia, made practically the s-ame representations that had been- made by Smith. Whether or not Smith -was -deceiving his -codefend-ants is immaterial, so far as this .case is concerned. They knew that he was endeavoring to practice a fraud on plaintiff, and, with su-c'h knowledge, they ratified his acts and accepted the benefits thereof.

It is -o-ur opinion that the learned- trial court erred in directing a verdict for -the -defendants, and that, for such error, a new trial should- be awarded. The judgment -and order appealed from are reversed.