Jordon v. Dyer

Kellogg, J. This is an action of assumpsit for the recovery of the price of certain real estate alleged to have been sold by the plaintiffs to the defendant, and the facts relied on to support the action appear in the report of the referee to whom the cause was referred in.the county court. The plaintiff’s claim depends on the question whether the real character of the transaction between them and the defendant was that of a sale of the farm of Mrs. Jordon, one of the plaintiffs, to him for a certain and specified price, or that of an exchange of this farm with him for the Goss farm, without reference to any agreed price either for the one or the other, like the case of the exchange of articles of property when treated by the agreement of the parties as being equal in value. We regard it as a rule of law, no less than of morals, that whatever is expected by one party to a contract, and known to be so expected by the other, is to be deemed a part or condition of the contract. Applying this rule to the facts reported by the referee, we think that this transaction should be regarded not as an exchange of farms, but as a sale by the plaintiffs of their farm to the defendant, and that the defendant, by his conduct and representations, intentionally led the plaintiffs to act on the basis of his acceptance of their proposal to sell their farm to him for the 107 specified price of twelve hundred dollars, and to take the Goss farm in payment at the same sum if the defendant could not induce Goss to take a less sum for his farm. The proposal implied that if the defendant, bought the farm of Goss for a less sum, the plaintiffs were to take it in payment for their farm only at the price for which the defendant might purchase it of Goss. The,, defendant having purchased -the farm of Goss for one hundred and fifty dollars less than the price for which he knew the plaintiffs were selling their farm to him, and having obtained a conveyance from the plaintiffs, not merely by concealing that fact from them when it was his duty to disclose the truth in regard to it, but also by falsely representing to them that he paid to Goss the same sum for which they had proposed to sell their farm to him, should, on the facts reported by the referee, be treated as having to that extent “kept back a part of the price” of the plaintiffs’ farm; and the plaintiffs are entitled to recover it in this action. The judgment of the county court in favor of the plaintiffs on the report of the referee is affirmed.