Higbee v. Trumbauer , 112 Iowa 74 ( 1900 )

Siieravin, J.

1 The note in suit was given for a quantity of stock food. When the defendant Avas first solicited to jnirchase, he informed one Mahood, Avho Avas trying to make the sale, that he Avas inexperienced, and “Avould not Avant to make a j)urchase of that kind without seeing” his brother, on AA'hose “experience and opinion” he “depended,” and that he “always consulted him in matters of that kind, and Avanted to do the same thing here.” He did not have an opportunity to see his brother as desired, but the next day Mahood and the jfiaintiff visited him, and Ma-hood, in the presence of the plaintiff, told defendant that he had seen his brother the day before, and told him “about the transaction,” and that the brother “thought it Avas all right, and that it Avould be advisable for him to undertake it.” Belying upon this statement of Mahood, defendant made the purchase of some 3,400 pounds of stock food, and gaAre his note therefor. The statement Avas false, and Avithin three or four days after giving the note the defendant so notified plaintiff, and demanded the surrender of his note, and refused to receive the stock food, which Avas at the time in plaintiff’s possession.

2 Upon the trial evidence of Mahood’s acts and statements, not in the presence of plaintiff, was admitted, over his objections. There was no error in this. The plaintiff refused to surrender the note after full knowledge of the deception that had procured it. By so doing, he ratified the entire transaction, including the acts and statements of Mahood, and cannot noAV disaffirm any part thereof. Eadie v. Ashbaugh, 44 Iowa, 519; Wm. Deering & Co. v. Grundy Co. Nat. Bank, 81 Iowa, 222.

3 Nor Avas it necessary to plead that the fraud Avas committed by an agent or that it was ratified. If true, it Avas the act of the principal, and to so plead is sufficient. Wm. Deering & Co. v. Grundy County Nat. Bank supra; 16 Enc. Pl. & Prac. 904.

4 It is contended that the alleged false statement was not material, and that no injury is shown to have resulted therefrom. Mahood was informed that the defendant would rely upon his brother’s judgment as to the advisability of buying so large a quantity of stock food, and, in effect, was told' that, if the brother’s judgment was adverse thereto, he would not purchase. When the defendant was assured that the brother approved the purchase, it was the statement to him of an existing and very material fact, and not the mere opinion either of Mahood or of the brother. It was the affirmative fact of the brother’s deliberate judgment in favor of the transaction, which Mahood knew was necessary to make the sale. It was false, and a deliberate fraud, practiced to induce the defendant to incur a large indebtedness. If it had not been practiced, the purchase would not have been made, and no note given. It is analogous to false representations as to the members of a corporation made; for the purpose of inducing subscriptions to stock, where reliance may be placed upon the reputation and judgment of others. Coles v. Kennedy, 81 Iowa, 360.

5 No damage need be proved, because defendant asks none. He seeks only to rescind the contract for the fraud practiced in obtaining the same, and this he has a clear right to do, for fraud vitiates all contracts.

A large number of errors are assigned in the instructions, given by the court. To notice them all in detail would extend this opinion to an unwarranted length. The general thoughts expressed therein correctly define the law governing the case, and we are unable to discover anything in them prejudicial to plaintiff’s rights. The instructions asked were properly refused, because they did not contain the law applicable to the case. The judgment is affirmed.

Granger, C. J. not sitting