Griffith v. Parks

Per Curiam. It is first argued by appellants that the evidence in this record does not sustain the verdict and judgment; that there is no evidence to show that appellants, Parks and Thomas, had any understanding or agreement with either Charles W. Witwer or his brother, Henry, that Thomas was to show appellee a different piece of land from that that was to be traded to appellee; and therefore a verdict should have been directed for appellants. We have examined the evidence in the record carefully and find that the evidence and the circumstances as testified to by appellee and his witnesses tend strongly to prove that the appellants entered into a conspiracy to defraud appellee in the manner claimed by him. There are some very strong facts testified against appellants that are not denied by any of them. Appellee testified that Henry Witwer told him that his brother had owned this land five or six months and that it was an eighty acre tract of black land with clay subsoil; that Charles Witwer told him that it was prairie land, black prairie land, and had a few scattering trees on it, black land with yellow clay subsoil; that Thomas told him it was a good piece of northern land, black land with a yellow clay subsoil—just what he had always wanted. He also testified that after the trade was made he began to hear rumors and get letters to the effect that he had been shown the wrong land and was cheated, and that he frequently went to Parks and Thomas about these rumors, and that they told him to “keep still,” that they knew everything was all right and that they would get him a deal for the land and dispose of it. He also testified that after he had found out that he had not gotten the land he was shown by Thomas, and that after he had sent for the Witwers and Parks and Thomas and while they and appellee’s father and appellee were together, that Thomas in the hearing of all of them and in answer to Charles Witwer about the trade, said: “Yes, and if he (appellee) had kept his damned mouth shut he would have been rid of the land, and we would have traded it off for him.” The foregoing facts are undisputed, and no reply was made by any of appellants, or any explanation offered by them at the time Thomas made his remarks, or at the trial in their testimony. It is also clearly proved that appellee did not get the land that was shown to him by Thomas, and that he never did see it until after the deal was made. Thomas took another party out to see the same land shown appellee in said Section 26, after the deal was made and tried to trade it off for appellee, and represented to the other party that it was land in said Sec. 36, after he had been hearing the rumors that appellee had been shown the wrong land. This took place on the day that appellee and bis father actually found out that appellee had not seen or gotten the land he supposed he had purchased, and appellee then stopped the attempted second deal. Taking these circumstances with all the other controverted facts in the record, with the further admitted facts that both the Witwers promised to go with appellee and Thomas to see the lands and after-wards declined to go because of other engagements, we think the jury were warranted in their finding against the defendants. It is true that appellants, Witwer and Thomas, denied that they had any side conversation with each other on the train that night, and that Witwer then told appellee that Thomas could show him the land just as well as he, Witwer, could. It is also denied by Thomas that he told appellee that the land shown him was the very land he was to get, and that he again repeated it just before the deal, and said there could be no mistake about it. The jury, however, have settled the controverted facts, and the case against appellants, and we find no legal reason for disturbing their finding on the facts. The jury evidently believed the story of appellee’s witnesses, that the land in Sec. 36 was not black prairie land with a yellow clay subsoil, and with only a few trees standing on it, and that the land in Sec. 26 did answer that description, and that the land in Sec. 36 was thickly timbered with scrub timber and had sandy soil with a blue subsoil, and was of very much less value than the other land. The verdict and judgment in this case must therefore be sustained unless the court has improperly instructed the jury as to the law of the case, as next claimed by appellants. The substance of the appellants’ objections to appellee’s given instructions is that they omit the element of ordinary care and prudence on the part of the plaintiff as a necessary finding by the jury before rendering a verdict in his favor. In Linington v. Strong, 107 Ill. 295, the court said: “The doctrine is well settled, that, as a rule, a party guilty of fraudulent conduct shall not be allowed to cry ‘negligence,’ as against his own deliberate fraud. Even where parties are dealing- at arm’s length, if one of them makes to the other a positive statement, upon which the other acts (with knowledge of the party making such statement) in confidence of its truth, and such statement is known to be false by the party making it, such conduct is fraudulent, and from it the party guilty of fraud can take no benefit. While the law does require of all parties the exercise of reasonable prudence in business of life, and does not permit one to rest indifferent in reliance upon interested representations of an ádverse party, still, as before suggested, there is a certain limitation to this rule, and, as between the original parties to the transaction, we consider that where it appears that one party has been guilty of an intentional and deliberate fraud, by which to his knowledge, the other party has been misled, or influenced in his action, he cannot escape the legal consequences of his fraudulent conduct by saying that the fraud might have been discovered had the party whom he deceived exercised reasonable diligence and care.” See also to the same effect, Leonard v. Springer, 197 Ill. 532. The appellee and his agents, Parks and Thomas, are not to be regarded in law as dealing at “arm’s length.” He was not called upon to doubt the truthfulness and honesty of his agents. Neither was he bound to inquire whether or not he was being defrauded by them in the transaction. The relation between them was one of trust and confidence, and therefore it could not be violated by his agents to their own advantage. Calkins v. Worth, 117 Ill. App. 478; Hauk v. Brownell, 120 Ill. 161. Appellant, Witwer, must have known that Parks and Thomas were the agents of appellee, and if he colluded with appellee’s agents knowingly and for the purpose of taking undue advantage of him in the deal through appellee’s paid agents, he is in no position to reap the advantages of his wrong by saying that appellee did not use reasonable prudence to detect the fraud of his agents who he had a right to believe were looking out for his best interests. Chappell v. McKnight, 108 Ill. 570. Not only were Parks and Thomas the agents of appellee, but they were on the very best of terms apparently as friends and neighbors. They and their families visited together, met in church and in lodge room together, and were members of the same lodge. There was no reason or occasion, legally or otherwise, for appellee to suspect that he was being made a victim of deceit. The instructions in this case as a series require the jury to believe from the evidence that all of the appellants contrived the scheme of showing appellee the wrong piece of land for the purpose of defrauding him as charged in the declaration, and that they did defraud him by means of that scheme, and that plaintiff believed their fraudulent representations, and acted thereon to his damage, as a condition to rendering a verdict for appellee. The appellants’ instructions required in addition to the foregoing that the representations must be such and made under such circumstances as to justify an ordinarily prudent man in relying upon them as true. We think that appellants had the benefit of every principle of law in their given instructions to which they were entitled, and that the other objections urged by them are not well taken, and that the judgment should be affirmed. The judgment is therefore affirmed. 'Affirmed. Mr. Justice McBride took no part in the hearing of this case.